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Barker v. Barker

Court of Appeals of Louisiana, First Circuit

November 7, 2014

HEATHER BARKER
v.
MATTHEW BARKER

Appealed from the 23rd Judicial District Court In and for the Parish of Ascension State of Louisiana Case No. 81571 The Honorable Thomas Kliebert, Judge Presiding

Marcus T. Foote Baton Rouge, Louisiana Counsel for Defendant/ Appellant Matthew Barker

Heather Barker Hammond, Louisiana Plaintiff/ Appellee In proper person

BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ.

THERIOT, J.

In this custody proceeding, a father appeals a trial court judgment denying his request to modify custody and child support. For the reasons set forth herein, we reverse the trial court judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Matthew Barker and Heather Barker were married on April 17, 2005, physically separated on August 28, 2005, and were divorced by judgment dated September 11, 2006. One child was born of the marriage on January 26, 2006. The parties were granted joint custody of the minor child by consent judgment, with Ms. Barker as the domiciliary parent. The physical custody schedule was modified several times by consent judgment in order to allow Mr. Barker more time with the child. On November 30, 2012, Mr. Barker filed a petition seeking to modify custody on the grounds that a material change in circumstances had occurred since the previous consent decree and a modification would be in the child's best interests. The grounds alleged by Mr. Barker's petition included: the child was having serious problems in school, including multiple absences and tardies; Ms. Barker allowed several men to live with her while the child was in her custody; Ms. Barker placed the child on medication which could potentially have long-term adverse effects without discussing it with him; and Ms. Barker was unable to provide the consistent and reasonable guidance to the child that he could provide. On August 29, 2013, the trial court appointed Dr. Jesse Lambert to conduct an assessment of the medical, educational, and social issues of the child and submit his findings to the court.

A hearing was held on Mr. Barker's petition to modify custody on December 13, 2013. At the beginning of the hearing, Ms. Barker requested a continuance on the grounds that she did not have her witnesses present and was not prepared for the hearing. The parties also informed the court that Dr. Lambert had not completed his report. Ms. Barker objected to proceeding without Dr. Lambert's report, because the parties had already paid him to gather all of the necessary information. The trial court informed the parties that Dr. Lambert was hospitalized for a serious illness and denied the request for a continuance. At the end of the hearing, after both parties' closing arguments, the trial judge informed the parties that he wanted to review Dr. Lambert's report before ruling on the matter. The trial court held the matter open for thirty days to allow Dr. Lambert additional time to submit a report. The trial court did not explain what procedure it would follow if and when it received a report from Dr. Lambert.

The trial court rendered judgment on February 6, 2014, relying on Dr. Lambert's January 24, 2014 report and recommendations[1] and denying Mr. Barker's request to modify custody. The trial court found that although Mr. Barker met his burden of proving that a change in circumstances materially affecting the child's welfare occurred since the previous custody judgment was entered, Mr. Barker failed to meet his burden of proof that the proposed modification of custody is in the best interests of the child. Based upon that finding, the trial court denied Mr. Barker's request to modify custody. Mr. Barker timely appealed.

ASSIGNMENTS OF ERROR

Mr. Barker argued the following trial court errors on appeal:

1. The trial court committed legal error in allowing the introduction and consideration of Dr. Lambert's report without allowing either party to review the report or cross-examine Dr. Lambert or issue any rebuttal evidence to Dr. Lambert's recommendations.
2. The trial court committed manifest error in denying Mr. Barker's request to modify custody where the majority of the Civil Code ...

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