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Manno v. Manno

Court of Appeal of Louisiana, Second Circuit

November 19, 2014

MARK KENNETH MANNO, Plaintiff-Appellee
v.
MOLLY CREECH MANNO, Defendant-Appellant

Page 656

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 505159. Honorable Robert Paul Waddell, Judge.

AFFIRMED.

RICHARD LYNN DUCOTE, Counsel for Appellant.

RANDALL R. ROBINSON, Counsel for Appellee.

Before DREW, LOLLEY and PITMAN, JJ.

OPINION

Page 657

[49,533 La.App. 2 Cir. 1] LOLLEY, J.

In this child custody proceeding, Molly Creech Manno appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, awarding her and her former spouse, Mark Kenneth Manno, joint custody of their minor child and designating her as the domiciliary parent. More specifically, Molly appeals the trial court's decision to exclude evidence, including allegations of sexual abuse which allegedly occurred before the parties entered into a consent judgment on November 27, 2007. For the following reasons, we affirm the trial court's judgment.

Facts

Mark Kenneth Manno and Molly Creech Manno were married on May 13, 2000, in Shreveport, Louisiana. One child was born of the marriage, A.W.M., a son, born on November 22, 2002. Litigation between Mark and Molly began on August 9, 2006, when Molly sought a protective order with the Caddo Parish Juvenile Court alleging that Mark sexually abused A.W.M., who was three years old at the time. A protective order was issued against Mark based solely on the allegations, and Dr. John Simoneaux, a forensic psychologist, was appointed by the court to conduct mental health and custody evaluations of all parties involved. The court also appointed an attorney for the child pursuant to La. R.S. 9:345. However, despite the allegations against Mark, Molly filed a motion to dissolve the protective order on January 18, 2007, and a contradictory hearing was held wherein Molly was questioned by the juvenile court regarding the alleged sexual abuse of A.W.M. Based upon that questioning, the juvenile court dismissed the proceedings against Mark, found the dismissal to be free, voluntary, and [49,533 La.App. 2 Cir. 2] without coercion, and deferred all future issues to the First Judicial District Court, where Mark had initiated divorce proceedings against Molly.

Incidental to divorce, Mark and Molly appeared before the trial court on November 27, 2007, and on that date entered into

Page 658

a consent judgment granting joint custody of A.W.M. to both parties, with Molly being named the domiciliary parent (the " consent judgment" ). Mark was awarded visitation, and both parties, along with their attorneys and the child's attorney, signed an eight-page joint custody implementation plan (" JCIP" ) setting forth the particulars of visitation and each party's obligations moving forward.

Custody was exercised pursuant to the consent judgment and JCIP until January 13, 2011, when Molly filed an ex parte motion for supervised visitation requesting that Mark's visitation be limited to supervised visitation only. Acting on the advice of her attorney, Molly took A.W.M. to Utah to see Dr. David Corwin, a psychologist who specializes in child sex abuse. Following an interview and examination of A.W.M., Dr. Corwin issued a report stating that in his professional opinion, A.W.M. was experiencing psychological and emotional trauma. Relying on this report, Molly filed the motion for supervised visitation asserting that A.W.M.'s psychological and emotional trauma stems from Mark sexually abusing A.W.M.

In response to Molly's motion, Mark filed exceptions of res judicata, no cause of action, and/or failure to state a material change of circumstances. Mark also requested that the court reappoint Dr. Simoneaux, and that both parties reconvene to again determine custody of A.W.M. Because of Molly's objection to the reappointment of Dr. Simoneaux, a hearing was held, [49,533 La.App. 2 Cir. 3] wherein the trial court maintained the appointment of Dr. Simoneaux and requested that he compile a second report to advise the court regarding any issues that affect the custody and best interest of A.W.M. The trial court denied Molly's request for supervised visitation and deferred Mark's exceptions to trial on the merits. Additionally, the trial court informed the parties that the heightened Bergeron standard would not apply, and noted that either party must show a material change in circumstances after the consent judgment; therefore, evidence prior to November 27, 2007, would not be admissible absent a compelling reason demonstrated at trial.

In accordance with the trial court's order, the parties and A.W.M. were reevaluated by Dr. Simoneaux, and a trial date was scheduled. When the parties appeared in court for trial, Molly made clear that she intended to offer evidence regarding certain incidents which allegedly occurred prior to November 27, 2007. Further, Molly made the assertion that she had been coerced into dismissing the abuse charges against Mark and signing the consent judgment. After hearing Molly's arguments, the trial court reaffirmed its previous position that evidence prior to the consent judgment would not be admissible, and stayed the proceedings to allow Molly to apply for a supervisory writ, which this court denied due to Molly having an adequate remedy on appeal.

The matter was eventually set for trial on February 18, 2014. However, while the matter was pending, Molly filed an amended motion for supervised visitation, alleging that Mark sent lewd, inappropriate photos to A.W.M.'s cell phone. An emergency hearing was held wherein Mark [49,533 La.App. 2 Cir. 4] admitted to taking the photos, but stated that he meant to share them with a woman he was dating at the time. Mark explained to the trial court that A.W.M. had a deactivated cell phone but had access to Mark's iTunes account, which included access to " Photoshare" where the photos were stored. Although he immediately deleted the photos after he took them, Mark claimed that they were inadvertently transferred to A.W.M.'s cell phone via the " Photoshare" application. Nevertheless,

Page 659

the trial court agreed with Molly and restricted Mark to supervised visitation until trial.

Trial was held over a three-day period. At the onset, the trial court had the parties clarify the remedies sought regarding a modification of custody. Molly requested sole custody of A.W.M. as well as relief under the Post-Separation Family Violence Relief Act, which requires supervised visitation. On his cross rule for a change in custody, Mark sought joint custody with himself being named the domiciliary parent.

Almost immediately, it became apparent that much of Molly's argument at trial was going to be centered around the sexual abuse allegations which allegedly occurred prior to November 27, 2007. As a result and before proceeding any further, the trial court once again reminded the ...


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