July 29, 2015
KARL JOSEPH KIRSCH
KRISTIN KAY KIRSCH
Appealed from the 22nd Judicial District Court. In and for
the Parish of St. Tammany, State of Louisiana. Case No.
2011-15863. The Honorable Dawn Amacker, Judge Presiding.
McCool, Mandeville, Louisiana, Counsel for
Defendant/Appellant, Kristin Kay Kirsch.
C. Rather, Jr., Mandeville, Louisiana, Counsel for
Plaintiff/Appellee, Karl Joseph Kirsch.
GUIDRY, THERIOT, AND DRAKE, JJ.
0281 La.App. 1 Cir. 2] THERIOT, J.
child custody case, the mother appeals a judgment in which
the trial court granted sole custody of the parties'
minor children to the father. For the following reasons, we
affirm the judgment of the trial court.
& PROCEDURAL HISTORY
matter involves a protracted and contentious custody dispute
between Karl Kirsch and Kristin Kirsch [together, " the
parties" ]. The parties were married on January 12,
2001. Two children were born
of the marriage: MK born August 16, 2001, and SK, born
December 20, 2003. The parties separated and ceased living
together in September 2011.
filed a complaint with the Department of Children and Family
Services [" DCFS" ] on September 8, 2011, alleging
that Karl had been physically abusive to her and physically
and sexually abusive to the children. DCFS closed the case,
finding it was inconclusive for sexual abuse, invalid for
physical abuse, and valid for lack of supervision on the part
of both parents.
September 14, 2011, Kristin filed a petition for protection
from abuse, alleging that Karl had physically abused both her
and the children. Following an October 19, 2011 hearing, the
parties reached a consent agreement that enacted an 18-month
protective order against Karl in favor of Kristin, but not in
favor of the children. The consent agreement further granted
Kristin temporary custody and provided for Karl to have
supervised visitation until he completed an anger management
course and a parenting course.
0281 La.App. 1 Cir. 3] Karl filed a Petition for Divorce
pursuant to La. C.C. art. 102 on October 12, 2011, requesting
joint custody of the children and to be the designated
November 28, 2011, and December 8, 2011, DCFS received
reports of suspected child abuse or neglect by Karl against
the children and opened investigations into the reports.
There was some dispute as to who filed the November 28, 2011
report, but it appears that both reports were filed by
Kristin. The November 28, 2011 complaint was closed with
Sexual abuse disclosures were never consistent and the boys
appeared to be coached... Mrs. Kirsch's family members do
not believe the abuse occurred... Both boys are disclosing
sexual abuse by their father. The disclosures are not
consistent... The boys say they are afraid of their father
but do not act fearful in front of him.
December 7, 2011, Kristin filed an Answer and Reconventional
Demand in forma pauperis, seeking sole custody with
supervised visitation pursuant to the Post-Separation Family
Violence Relief Act, La. R.S. 9:361 et seq. ["
the Act" ], spousal support, and child support. Kristin
alleged that Karl was not entitled to joint custody due to a
history of family violence against Kristin and the
initial Hearing Officer Conference [" HOC" ] was
held on December 13, 2011. Recommendations were issued
awarding joint custody to both parents, with Kristin as the
designated domiciliary parent. A
new [2015 0281 La.App. 1 Cir. 4] visitation schedule
was agreed upon, and Karl's visitation was to be
supervised by his mother. Regarding Kristin's request for
an injunction pursuant to the Act, the HOC
Report/Recommendations provided that the request " must
January 6, 2012, Karl filed an Answer to Kristin's
Reconventional Demand, in which he sought sole custody of the
two minor children because Kristin had made false allegations
of neglect and abuse against him, and alleging that Kristin
should only be awarded supervised visitation with the
second HOC was held on February 13, 2012, and was
memorialized in a February 15, 2012 Consent Judgment that
awarded temporary joint custody, lifted the supervision
requirements on Karl's visitation, and named Kristin the
domiciliary parent. Regarding Kristin's request for an
injunction pursuant to the Act, the HOC
Report/Recommendations provided that the request " shall
be addressed at the follow-up" HOC.
February 29, 2012, DCFS notified Karl by letter that the DCFS
investigations into the November 28, 2011, and December 8,
2011, complaints had been completed, and there was not
sufficient information to support a finding of abuse or
April 20, 2012, Karl subpoenaed the records of the Slidell
Police Department [" SPD" ]. He also filed a motion
to unseal the DCFS records and compel the deposition of
Detective Brian Brown, alleging that Kristin had repeatedly
falsely accused Karl of physical and sexual abuse of the
children [2015 0281 La.App. 1 Cir. 5] in an attempt to
improperly influence the custody and related financial
determinations. He further alleged that the requested
information was critical to his claim for sole custody.
report dated June 27, 2012, summarizing the June 22, 2012
HOC, reflected Karl's allegations that Kristin had
falsely accused him of sexual abuse of the children. It was
Kristin's testimony that the children had made alarming
statements, which she reported to the appropriate
authorities. Kristin's reports of sexual abuse had been
made prior to the February 13, 2012 HOC, and all resulting
investigations had been closed by the time of the June 22,
2012 HOC; thus, the June 27, 2012 HOC Report recommended
joint custody, with Kristin as the domiciliary parent, and
denied Kristin's request for an injunction pursuant to
the Post-Separation and Family Violence Relief Act.
filed an objection to the June 27, 2012 HOC report
recommendations with the trial court, specifically objecting
to the award of joint custody, the designation of domiciliary
parent, and the visitation schedule. Karl filed a Pre-Trial
Memorandum alleging that since the fall of 2011, Kristin had
been filing and reporting false allegations of child abuse,
both sexual and physical, against him for the sole purpose of
influencing the court's determination of pending custody
matters. Karl maintained that Kristin submitted false reports
to the City of Slidell, DCFS, and various hospitals and
medical facilities in Mississippi and Louisiana, subjecting
both children to invasive, humiliating, and potentially
damaging physical examinations and forensic evaluations. Karl
further alleged that Kristin had coached the children into
falsely accusing him of sexual abuse. Karl
alleged that Kristin's rights to custody, unsupervised
visitation, child support and spousal support should be
terminated as a result.
0281 La.App. 1 Cir. 6] Following a July 24, 2012 hearing
before the trial court, an Interim Consent Judgment upheld
the previous joint custody arrangement with Kristin as the
domiciliary parent. The judgment also ordered both parties to
submit to a full mental health examination by Dr. Alan James
Klein, who would be granted access to all court records. A
hearing to establish temporary custody was set, but was twice
continued because Dr. Klein was unable to complete his
evaluations and issue reports before the hearing date.
matter went to trial on August 5 and 7, 2013. The trial court
rendered its decision in open court on August 7, 2013, and
gave extensive oral reasons for judgment. On August 8, 2013,
the trial court signed a judgment consistent with its August
7 ruling, granting Karl sole custody of the children and
further providing that upon presentation by the parties, the
court would execute the judgment addressing the other issues
upon which it had ruled. On September 5, 2013, Kristin filed
a Motion and Order for Devolutive Appeal from the final
judgment rendered in the action.
September 9, 2013, the trial court signed a second judgment
reiterating that Karl had been awarded sole custody, and,
among other specific orders, provided that Kristin would have
only supervised visitation on alternating weekends, and that
neither party should publicly disclose any facts or details
of the proceedings nor discuss them with the children.
court shall award custody of a child in accordance with the
best interest of the child. La. C.C. art. 131. In determining
the child's best interest, the court shall consider all
the factors that are relevant to that specific case. La. C.C.
art. 134. The trial court's decision in child custody
matters is entitled to great weight and it will not be
overturned absent a clear [2015 0281 La.App. 1 Cir. 7]
showing of an abuse of discretion. Bergeron v.
Bergeron, 492 So.2d 1193, 1196 (La. 1986).
of Error No. 1
first assignment of error, Kristin argues that the trial
court erred in awarding sole custody to Karl and permitting
only supervised visitation by Kristin because Karl failed to
put forth evidence that such was in the best interests of the
children, and because Karl failed to prove that Kristin
coached the children to make false allegations against him.
also challenges the qualification of Investigator Brian Brown
of the Louisiana Department of Justice, who testified
regarding his belief that Kristin coached the children, as an
expert witness in " criminal investigation of the sexual
abuse of children." Brown was the SPD Detective who
investigated the allegations of sexual abuse against Karl.
However, as Kristin failed to object to the qualification of
Brown as an expert at the trial on this matter, this issue
may not be raised on appeal.
Generally, the court shall award custody to the parents
jointly; however, if custody to one parent is shown by clear
and convincing evidence to serve the best interest of the
child, the court shall award custody to that parent. La. C.C.
art. 132. Every child custody case is to be viewed on its own
particular set of facts and the relationships involved, with
the paramount goal of reaching a decision which is in the
best interest of the [2015 0281 La.App. 1 Cir. 8] child. The
trial court is vested with broad discretion in deciding child
custody cases. Because of the trial court's better
opportunity to evaluate witnesses, and taking into account
the proper allocation of trial and appellate court functions,
great deference is accorded to the decision of the trial
court. Appellate courts must be vigilant to not retry cases.
A trial court's determination regarding child custody
will not be disturbed absent a clear abuse of discretion.
Martello v. Martello, 2006-0594 (La.App. 1st Cir.
3/23/07), 960 So.2d 186, 191-92. This court may not set aside
a trial court's finding of fact absence manifest error or
unless it is clearly wrong; thus, when there is a conflict in
the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, although the appellate court may feel its own
evaluations and inferences are as reasonable. Rosell v.
ESCO, 549 So.2d 840, 844 (La.1989). Furthermore, when
factual findings are based on the credibility of witnesses,
the fact finder's decision to credit a witness's
testimony must be given " great deference" by the
appellate court. Id.
the particular facts and the relationships involved in this
case, we must determine if the trial court abused its
discretion in finding by clear and convincing evidence that
awarding sole custody of the children to Karl is in the
childrens' best interest. Further, we must determine if
the trial court's evaluations of credibility are
paramount consideration in any determination of child custody
is the best interest of the child. La. C.C. art. 131;
Evans v. Lungrin, 97-0541, 97-0577, (La.2/6/98), 708
So.2d 731, 738; Tanner v. Wallace, 2014-1728
(La.App. 1st Cir. 4/24/15), (unpublished). In determining the
best interest of the child, La. C.C. art. 134 enumerates
twelve factors to be considered by the trial court, which
[2015 0281 La.App. 1 Cir. 9] (1) The love, affection, and
other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the
child love, affection, and spiritual guidance and to continue
the education and rearing of the child.
(3) The capacity and disposition of each party to provide the
child with food, clothing, medical care, and other material
(4) The length of time the child has lived in a stable,
adequate environment, and the desirability of maintaining
continuity of that environment.
(5) The permanence, as a family unit, of the existing or
proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects
the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court
deems the child to be of sufficient age to express a
(10) The willingness and ability of each party to facilitate
and encourage a close and continuing relationship between the
child and the other party.
(11) The distance between the respective residences of the
(12) The responsibility for the care and rearing of the child
previously exercised by each party.
list of factors set forth in Article 134 is non-exclusive,
and the determination as to the weight to be given each
factor is left to the discretion of the trial court. La. C.C.
art. 134, comment (b), Revision Comments--1993. We here
summarize both the evidence contained in the record before us
and the trial court's analysis and conclusion based on
the La. C.C. art. 134 factors for determining the best
interest of the children, as follows:
the first La. C.C. art. 134 factor, the trial court concluded
that the love, affection, and other emotional ties between
each party and the children are equal between the parties.
This is supported by the report of Dr. Klein, who conducted
full mental health examinations of both parties pursuant to
the Interim Consent Judgment and evaluated both children. In
his report, Dr. Klein wrote that the children appeared to be
equally bonded to both parents.
0281 La.App. 1 Cir. 10] Regarding the second La. C.C. art.
134 factor, the trial court concluded without discussion that
it was her belief that Karl has the greater capacity and
disposition to give the child love, affection, and spiritual
guidance and to continue the education and rearing of the
the third La. C.C. art. 134 factor, the trial court concluded
that Karl has the greater capacity and disposition to provide
the children with food, clothing, medical care, and other
material needs. Karl has stable employment and demonstrated
better judgment concerning financial matters; whereas Nurse
Ann Troy, a nurse at Children's Hospital in New Orleans,
who had examined MK after Kristin brought him to the ER
alleging sexual abuse, reported that Kristin told her during
a hospital visit that she had no money for food and gas and
convinced Nurse Troy to give Kristen assistance. In addition,
as found by the trial court, Kristin appears to be in denial
about the children's medical needs and lacks the capacity
to handle the children's medical needs, as demonstrated
by her failure to provide the children with enough medication
to last the duration of their visits with Karl and her
refusal to accept doctor's recommendations of medications
for the children. In light of the children's severe
mental health issues, including previous threats and actions
of physical violence against their parents and sexually
acting out against other children, a thorough understanding
of and ability to address the children's medical needs is
vital, and Kristin's history demonstrates her lack of
capacity to provide the children with such.
the fourth La. C.C. art. 134 factor -- the length of time the
child has lived in a stable, adequate environment, and the
desirability of maintaining continuity of that environment --
the trial court concluded that Karl can provide the children
with the most stable and adequate home environment. This
conclusion was based on evidence that the living [2015 0281
La.App. 1 Cir. 11] conditions with Kristin have at times been
poor, while Karl currently has a stable, adequate residence
with his mother.
the fifth La. C.C. art. 134 factor -- the permanence, as a
family unit, of the existing or proposed custodial home or
homes -- the trial court found it significant
that Kristin relies almost entirely on spousal support, which
is likely to result in an inability to maintain her current
residence at some point in time.
sixth and seventh La. C.C. art. 134 factors, which consider
the moral fitness of each party as it affects the welfare of
the children, and the mental and physical health of the
parties, respectively, involve closely interrelated issues of
respect to Karl, Dr. Klein's report and testimony
indicated that Karl tends to be suspicious and appears easily
irritated, and regarding Kristin's allegations that Karl
physically abused her, Dr. Klein stated that there was "
reasonable concern that this may be a possibility." Dr.
Klein described Karl as " always logical, coherent and
orderly in his thinking" and reported that there was no
indication that Karl has mood problems or instability in
emotional functioning. Karl had no criminal history. The
trial court ultimately found that Karl had no psychological
problems of any significance.
stark contrast, the trial court found that Kristin "
presents a danger to these children at this point in time on
many levels." The evidence and the trial testimony
together demonstrate significant issues regarding both
Kristin's moral fitness, her judgment, her credibility,
and her mental health. Further, Dr. Klein testified that
Kristin has a major depressive disorder and anxiety disorder;
he also testified that she presented with a " malignant
psychological picture" and the " data points toward
severe psychological [2015 0281 La.App. 1 Cir. 12]
disturbance." Dr. Klein's report to the trial court
indicated that Kristen is naive, highly anxious, and has
notable character issues, including being resentful,
argumentative, suspicious, paranoid, and " has a long
history of severe social maladjustment with a poor work
had on at least one occasion permitted individuals to stay in
the home with the children, although she did not know the
individuals well enough to tell Dr. Klein their last names.
In addition, Kristin claimed to Dr. Klein that she had been
diagnosed with cancer in 2009, but failed to follow up on the
diagnosis or seek treatment. She also told Dr. Klein that she
had been admitted to both Harvard and Yale after high school,
though when questioned, she did not know where either school
was located, and Dr. Klein testified that such an achievement
would be very surprising given her psychological profile.
Kristin has been arrested for breaking and entering and
assault and battery, while one of the children was with her.
No explanation or denial of this event was provided.
Brown's testimony, which overlapped with the contents of
the DCFS records, fleshed out the history surrounding the
sexual abuse allegations and provided further support for the
conclusion that the children had been coached.
0281 La.App. 1 Cir. 13] Brown testified that on October 19,
2011, the SPD received a call from Kelsey Bourgeois at DCFS
relating to Kristin's allegation of sexual battery
against Karl. One of Brown's colleagues met with Kristin
the next day, and Kristin reported that MK had written "
Dad hurt my butt" on the wall with his feces when the
parties lived in California years earlier; that both children
had commented that Karl had been engaged in " wee wee
touching" with the boys; and that Kristin had personally
seen MK put his mouth on SK's genitals and that Karl had
made the children do this to him in the past.
October 26, 2011, Brown arranged for a forensic interview of
both children with representatives of DCFS at Hope House,
which he observed on closed circuit television. SK stated
that he couldn't remember what he was supposed to say,
but what he told the other person was all true. Kristin
calmly denied having coached the children when Brown
confronted her. The DCFS employees both agreed with Brown
that the children had been coached. On this issue, the trial
court noted its belief that this matter was the only occasion
it had ever seen DCFS " actually say that they believe
the mother had coached the children."
the Hope House interviews, Karl passed a polygraph test.
However, Kristin could not complete her polygraph test
because she was " very upset, hysterical." After
the attempted polygraph test, Kristin told Brown that she
would consent to Karl having joint custody, which he
testified was a " red flag," because "
[s]omeone whose child is being molested by the parent would
not agree to let them have any custody, at least in my
0281 La.App. 1 Cir. 14] On October 28, 2011, Brown spoke with
Nurse Troy, a nurse at Children's Hospital in New
Orleans, who had examined MK after Kristin brought him to the
ER alleging sexual abuse. Troy found no evidence to
corroborate Kristin's allegations and also felt that the
story had been coached or rehearsed. Further, Troy felt
tricked, as she had given Kristin money for food and gas. The
investigation of these charges was closed on November 4,
2011, finding that Kristin lacked credibility and that there
were numerous inconsistencies in her stories, as well as
indications that the children had been coached and there was
no physical evidence of abuse.
testified that at one of the monthly meetings held to review
investigations of alleged sexual abuse attended by
individuals representing the St. Tammany Parish Sheriff's
Office, the Covington Police Department, the DCFS and the
District Attorney's Office, everyone present felt that MK
and SK had been coached to assert false allegations of sexual
abuse against Karl. In addition, DCFS received a phone call
from Kristin's sister, who stated that she believed
Kristin had fabricated the allegations.
investigated other abuse allegations filed by Kristin.
Shortly after closing the first investigation, Brown received
a call from DCFS reporting that Kristin had accused Karl of
placing marshmallows in the children's anuses and taught
them to do it to each other. These charges were determined to
early 2012, the Jefferson Parish Sheriff's Office ["
JPSO" ] contacted Brown regarding
an allegation submitted by Kristin that she had found blood
in MK's underwear and that Karl had raped him. The
substance was determined to be feces, and JPSO closed the
0281 La.App. 1 Cir. 15] Brown testified that he considered
arresting Kristin for filing false police reports, but after
discussions with his supervisors, decided against it due to
her fragile mental state.
Elyea, Kristin's maid of honor at her wedding to Karl,
testified by deposition that Kristin has a propensity to
falsely accuse people of abuse. Specifically, Elyea testified
that Kristin accused her high school swim coach of sexually
abusing her; accused her mother of physical abuse; and
accused her sister of sexually abusing her.
an incident that occurred in the New Orleans French Quarter,
one of several instances in which Kristin accused Karl of
physical abuse, Elyea's testimony was consistent with
Karl's and indicated that contrary to Kristin's
allegations, Kristin was abusive to Karl and not the other
way around. Ruby Kirsch, Karl's mother, also testified
that she had seen Kristin be physically violent towards Karl.
trial court concluded that Kristin is dishonest and a danger
to the children and " has a long and extensive history
of not telling the truth to the children, to the DCFS, to
medical personnel, to authorities, to the Court." The
trial court further stated:
It was difficult, in listening to what she had to say and
looking through all the testimony and the documentary
evidence, it is difficult to understand is she delusional or
is this malicious and intentional and directed at destroying
this man's relationship with his children. And I am not
so sure I even have to come to that conclusion. But I can
tell you that if I do have to come to that conclusion, I do
believe she coached her children.
She has coached the most vulnerable of children willingly,
maliciously, arbitrarily, in an effort to gain an advantage
in this case, in an effort to destroy the relationship with
their father, in an effort to alienate them from their
father. And the most vicious allegations that she could make,
the most bizarre allegations that she could make were told to
these children and they were coached to tell authorities,
0281 La.App. 1 Cir. 16] This is consistent with Dr.
Klein's report, in which he stated that " [i]t was
not at all clear what had transpired other than there was
either coaching and/or the children had been interviewed
numerous times and have been contaminated and when they see a
therapist they are expected to talk about the abuse,"
and his testimony, that " in reviewing all of the
records and the experts who opined regarding the sexual
molestation, combined with some 20-something years as
director of a sexual abuse treatment program -- speaking
about myself -- I did not see any validity in the
the eighth La. C.C. art. 134 factor, the trial court
concluded that the home, school, and community history of the
children supported an award of custody to Karl. In light of
the fact that the children have moved previously, due to
Karl's military service, it is unlikely that it would be
significant for the children to move again. Further, Karl
will have family support, whereas Kristin does not and has
accused several of her own family members of physically and
sexually abusing her.
the ninth La. C.C. art. 134 factor -- the reasonable
preference of the
children -- the trial court concluded that there was no
credible evidence presented.
the tenth La. C.C. art. 134 factor, the trial court concluded
that the willingness and ability of each party to facilitate
and encourage a close and continuing relationship between the
children and the other party was a huge factor in this case.
In light of " the level of parental alienation that has
been exhibited by the mother toward the father," the
trial court found that Kristin has no ability to facilitate
and encourage a relationship between [2015 0281 La.App. 1
Cir. 17] the children and Karl. In contrast, the trial court
found that Karl has a great ability to facilitate and
encourage a relationship between Kristin and the children, as
demonstrated by his continued willingness to allow her to be
involved in the childrens' lives.
the eleventh La. C.C. art. 134 factor, the trial court
concluded that the distance between the respective residences
of the parties was negligible.
the twelfth La. C.C. art. 134 factor of responsibility for
the care and rearing of the children previously exercised by
each party, the trial court stated that despite the history
of Kristin acting as the primary caregiver, such was not to
be desired any longer for all of the above reasons.
Louisiana Supreme Court in C.M.J. v. L.M.C.,
2014-1119 (La. 10/15/14), 156 So.3d 16, 26, upheld the trial
court's award of sole custody to a father after finding
that there was no credible evidence that the father had ever
physically or sexually abused the children, but rather that
the mother had fabricated allegations of physical and sexual
abuse against the father and manipulated the children into
making false allegations against their father. In this
matter, as in C.M.J., the trial court found that
there was no credible evidence that the father had abused the
children and that Kristin falsely accused Karl of abusing the
children and coached the children into supporting the
allegations. Kristin argues that because she never raised
sexual abuse allegations in the custody proceedings, "
it is difficult to grasp" how she could have hoped to
obtain an advantage in the proceedings by raising the
allegations to DCFS and law enforcement. However, given the
obvious impossibility of Kristin obtaining any advantage by
deliberately bringing the trial court's attention to the
DCFS and law enforcement [2015 0281 La.App. 1 Cir. 18]
investigations in light of the outcome of all of the
investigations, this argument is specious.
thoroughly reviewed the record and evidence in its entirety,
and considering the particular facts and the relationships
involved in this case, we find no manifest error in the trial
court's factual determination that Kristin coached the
children into supporting false allegations of sexual abuse by
their father. For this reason and the many others extensively
detailed above, we find that the trial court did not abuse
its discretion in finding that Karl has shown by clear and
convincing evidence that awarding sole custody of the
children to Karl is in the children's best interest.
Further, the Louisiana Supreme Court's recent decision in
C.M.J. strongly supports the trial court's award
of sole custody to Karl under these circumstances. This
assignment of error is without merit.
of Error Nos. 2, 3 and 4
second assignment of error, Kristin argues that the trial
court erred and abused its discretion in dismissing her claim
that she was a victim of domestic violence and entitled to
protection under the Act, because it did not apply the
protections afforded by the Act at the outset of the
proceedings nor determine whether the Act applied to Kristin.
Kristin contends that she was improperly required to
participate in HOCs while a protective order was in place and
that each HOC resulted in an award of temporary-joint
custody, which required Kristin to co-parent with Karl.
Kristin maintains that the hearing officer process in cases
alleging domestic violence improperly circumvents the express
provisions of the Act, as the HOCs occur prior to a
victim's opportunity to prove to the court that he or she
has been the victim of domestic violence. Kristin further
argues that by virtue of the protective [2015 0281 La.App. 1
Cir. 19] order that was in place when the HOCs occurred, Karl
should have been precluded from obtaining joint custody under
third assignment of error, Kristin maintains that she has
been punished for expressing her concerns that her children
were being abused to appropriate authorities, because Karl
was able to use the conclusions of DCFS and other law
enforcement authorities that there was insufficient
information to support a charge of abuse and neglect against
him as evidence that Kristin was guilty of alienation. Thus,
Kristin maintains that the practical effect of the trial
court's ruling has been an unconstitutional suppression
or chilling of speech, in violation of the First Amendment
and public policy.
fourth assignment of error, Kristin argues that the trial
court's blanket suppression of her content-based speech
constitutes an impermissible restraint of speech and cannot
stand under the First Amendment.
first issue addressed in Karl's brief is whether this
Court has jurisdiction over all of the issues presented in
Kristin's appeal. For the reasons that follow, we find
that this Court's jurisdiction does not include
assignments of error numbers 2, 3, and 4.
trial court signed two judgments in this matter. The first
was signed on August 8, 2013, and ordered that Karl was
awarded sole custody of the children. The August 8, 2013
judgment also stated that " [u]pon presentation of the
parties, the court will execute the Judgment addressing the
other issues upon which the court ruled at the hearings of
August 5 and 7, 2013."
September 5, 2013, Kristin filed her Motion and Order for
Devolutive Appeal pro se, which referenced the
August 8, 2013 judgment, [2015 0281 La.App. 1 Cir. 20] and
stated " [m]over desires to appeal from the final
judgment rendered in this action to the Court of Appeal,
First Circuit State of Louisiana."
September 9, 2013, the second judgment was filed, and was
signed by the trial court on September 17, 2013. Notice of
Judgment was mailed the same day. This judgment included the
provisions that are challenged in Kristin's remaining
assignments of error.
Voelkel v. State, 95-0147 (La.App. 1st Cir.
10/6/95), 671 So.2d 478, 479-80, writ denied,
95-2676 (La. 1/12/96), 667 So.2d 523, this Court wrote as
On September 1 the trial court signed a judgment granting the
motion of " the State of Louisiana." A separate
judgment was signed on September 30 dismissing WPPJ
[Washington Parish Police Jury].
Plaintiff's petition for appeal, filed September 23,
1994, stated he was appealing the judgment " rendered on
or about August 30, 1994." The order granting the appeal
was signed October 17, 1994. Plaintiff treated the appeal as
if it were an appeal of both judgments.
APPEAL OF JUDGMENT DISMISSING WPPJ
Does this court have jurisdiction?
WPPJ contends this court has no jurisdiction to review the
judgment dismissing it because no order granting an appeal of
the September 30 judgment was obtained by plaintiff.
Louisiana Code of Civil Procedure article 2121 provides in
pertinent part: " An appeal is taken by obtaining an
order therefor, within the delay allowed, from the court
which rendered the judgment." It is incumbent upon the
party litigant or his counsel to obtain the order of appeal,
and failure to do so is imputable to him. Ratcliff v.
Boydell, 566 So.2d 197, 199 (La.App. 4th Cir.), writ
denied, 571 So.2d 647 (La. 1990); Fidelity Bank &
Trust Co. v. Pinewood Country Club, 250 So.2d 577, 578
(La.App. 1st Cir. 1971).
The jurisdiction of the appellate court attaches upon the
granting of the order of appeal. La. C.C.P. 2088. There can
be no appeal absent an order of appeal because the order is
jurisdictional. This lack of jurisdiction can be noticed by
the court on its own motion at any time. La. C.C.P. 2162;
Sammons v. New Orleans Ry. & Light Co., 143 La. 731,
79 So. 320 (1916); Accredited Sur. & Cas. Co. v.
McElveen, 93-678, pp. 1-2 (La.App.3d Cir. 2/2/94), 631
So.2d 563, 564 [2015 0281 La.App. 1 Cir. 21] writ
denied, 94-0915 (La. 5/20/94), 637 So.2d 483, cert.
denied, 513 U.S. 963, 115 S.Ct. 424, 130 L.Ed.2d 338
(10/31/94); Davis v. Funderburk, 274 So.2d 781, 782
(La.App.3d Cir. 1973); Dufrene v. Dufrene, 149 So.
889 (La.App. 1st Cir. 1933). We find we have no jurisdiction
over the appeal of the September 30 judgment because of the
lack of an order of appeal.
August 8, 2013 judgment only addressed the award of sole
custody to Karl, the remaining assignments of error do not
arise from the August 8, 2013 judgment. Therefore, pursuant
to Voelkel, this Court lacks jurisdiction over the
remaining assignments of error, which are not encompassed
within the award of sole custody.
the trial court did not abuse its discretion in the awarding
of custody. Furthermore, we find this court lacks
jurisdiction over the remaining assignments of error.
August 8, 2013 judgment of the trial court is affirmed. Cost
of this appeal is assessed to the appellant, Kristin Kay
The initials of the minor children will be
used throughout this opinion. See La. URCA Rule 5-2.
Karl alleges that the exact date was
September 5, 2011; Kristin alleges it was September 15,
Specifically, the Answer and Reconventional
Demand alleged the following: that in December 2010, Karl
threated to kill MK when he accidentally broke a window and
pushed Kristin when she tried to interfere; that on September
5, 2011, Karl hit MK with his belt and put cayenne
pepper down his throat, ultimately requiring a trip to
the emergency room; that Karl whipped the children with
belts; that the children were terrified of their father and
panicked when it was time to visit him; that Karl had a
history of alcohol abuse; and that Karl had been generally
abusive to Kristin since 2001, choking her, striking her,
pulling her hair, and verbally threatening and abusing
Also on December 13, 2011, Karl filed a
Motion for Contempt of Court and Modification of Visitation
Order, alleging that Kristin had prohibited Karl from
speaking with his children every night as agreed at the
October 19, 2011 hearing. A certificate showing that Karl had
completed eight sessions of Anger Management & Stress
Reduction was filed with the motion. Karl's Motion
for Contempt was resolved at the second HOC on February 13,
DCFS produced its confidential records for
in camera inspection and verified their
Failure to object timely constitutes a
waiver of that objection, and an appellant may not raise the
issue for the first time on appeal. Travis v.
Spitale's Bar, Inc., 2012-1366 (La.App. 1st Cir.
8/14/13), 122 So.3d 1118, 1134, writ denied,
2013-2409, 2013-2447 (La. 1/10/14), 130 So.3d 327, 329. At
trial, counsel for Kristin initially objected to Brown
providing opinion testimony because he was not testifying as
an expert. Following a sidebar, counsel for Karl qualified
Brown as an expert in the criminal investigation of the
children's sexual abuse. Counsel for Kristin and the
trial court also questioned Brown; however, after the trial
court found that Brown was qualified as an expert in the
investigation of sexual abuse of children, no objection to
Brown's qualification as an expert was made. Thus, this
issue may not be raised on appeal.
Throughout his testimony, Brown relied on
the DCFS records and statements made to him by other people.
Louisiana Code of Evidence article 703 provides as follows
with regard to opinions and expert testimony:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived
by or made known to him at or before the hearing. If of a
type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the
facts or data need not be admissible in evidence.
Comment (d) to Article 703 adds further that "
the facts ... underlying the expert witness' opinion may
properly be ... under designated circumstances, facts ... not
admissible in evidence (because, for example, their source is
inadmissible hearsay), if they are of a kind reasonably
relied upon by experts in the particular field in arriving at
their opinions or inferences." Thus, his reliance
on hearsay, because it was of the type that an expert in his
field would reasonably rely upon, was proper. See
McCain v. Howell, 2006-1830 (La.App. 1st Cir.
9/14/07), 971 So.2d 323, 333, writ denied, 2007-2027
(La. 12/14/07), 970 So.2d 533; Willie v. Am. Cas.
Co., 547 So.2d 1075, 1079, (La.App. 1st Cir. 5/30/89),
determination sustained, 553 So.2d 467 (La.
Though Kristin's counselor, Ilsa Araki,
spoke on this matter, the trial court found her to be
unreliable and not credible, due to inconsistencies between
her testimony, her records and the DCFS records. In addition,
Araki had, at certain times, treated both Kristin and Karl,
as well as the children, which she herself testified should
have been precluded by a conflict of interest. We agree
with the trial court's findings.