from the Fourth Judicial District Court for the Parish of
Ouachita, Louisiana Lower Court Case No. 2015-1781 Honorable
H. Stephens Winters, Judge
NEWMAN, OLIVEAUX & MAGEE, LLP By: Trey N. Magee Counsel
S. SUMMERSGILL Counsel for Appellee.
DREW, PITMAN, and GARRETT, JJ.
Atkins appeals the ruling of the trial court which denied her
motion to dismiss the father's, Derrick Devereux's,
objection to the hearing officer's recommendation
regarding custody of their child. For the following reasons,
Devereux and Sheena Atkins were never married, but had a
daughter together in April 2010. The couple lived with their
child at Devereux's mother's house in Swartz,
Louisiana, in Ouachita Parish. In January 2015, Atkins began
staying in West Monroe, Louisiana, with her grandmother, who
needed medical assistance. In March 2015, Atkins told
Devereux that she had a boyfriend who lived near her
there had never been a judicially determined or court-ordered
custody arrangement prior to June 2015, Devereux filed a
petition seeking to establish custody and domiciliary status.
He alleged that it would be in the child's best interest
that he be named domiciliary parent. Between the period the
suit was filed and when it was heard, Atkins married her
boyfriend, "Red" Vogt.
August 18, 2015, Atkins filed an answer and reconventional
demand stating she was in a better position to care for the
child and to provide her with a structured and stable
environment. At the hearing on September 14, 2015, the
hearing officer recommended that the parties share joint
custody of the minor child, with Atkins being designated as
the domiciliary parent and Devereux having visitation every
other weekend and splitting holidays and summer vacation.
September 17, 2015, Devereux filed an "Objection to
Hearing Officer Conference Report, " objecting to the
recommendation of the hearing officer. The basis of the
objection was that the recommendation was allegedly made
"taking into consideration the twelve factors set forth
in Louisiana Civil Code Article 134, " but those
considerations were not discussed or taken into consideration
during the conference. Devereux objected to the findings by
the hearing officer and claimed that there was no
consideration of the twelve factors, and, further, that, had
the hearing officer considered those factors, he (Devereux)
would have been considered the more appropriate parent to be
granted domiciliary custody of the child. He claimed that
this would be proven at the trial and asked that the matter
"proceed to hearing as currently scheduled, on all
issues" to which he had objected.
September 24, 2015, the written conference report was filed
into the record, and a temporary order adopting and
implementing the hearing officer's recommendations was
signed by the trial judge on September 21, 2015. That
temporary order contains a paragraph which notes that there
is no trial or hearing date currently scheduled and that it
is the responsibility of the objecting party or parties to
file an appropriate pleading requesting a trial or hearing
date no later than 90 days after the filing of the objections
or the continuance of the case without date, "or the
objections will be deemed abandoned and will be dismissed
without prejudice and the report and recommendations of the
hearing officer will be adopted as the judgment of the
December 23, 2015, Devereux filed a motion to set a trial
date on the objection he had filed on September 17, 2015, but
which was not filed in the record until September 24, 2015.
The trial court set the matter for trial on the merits for
April 12, 2016 which was a date available to both
parties' attorneys. Atkins's attorney did not object
to the setting of the court date at that time.
March 30, 2016, Atkins's attorney filed an "Ex Parte
Motion to Dismiss Objection For Failure to Comply with Local
Rule Appendix 35.5" and stated that the hearing date had
to be scheduled not later than 90 days after filing of the
objection or it would be deemed abandoned and dismissed
without prejudice and the hearing officer's
recommendation would be adopted as the judgment of the court.
Atkins claimed that she was entitled to dismissal of
Devereux's objection to the hearing officer's
recommendation because his request for trial was filed later
than December 17, 2015, which ...