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England v. England

Court of Appeals of Louisiana, Fourth Circuit

June 28, 2017

JAMES ENGLAND
v.
ALINA JULIA ENGLAND JAMES ENGLAND
v.
ALINA JULIA ENGLAND

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06137, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          Marc D. Winsberg Robin Penzato Arnold Jonathan D. Gamble WINSBERG & ARNOLD, LLC, COUNSEL FOR PLAINTIFF/APPELLEE

          Richard Ducote, COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins

          Edwin A. Lombard, Judge

         In this consolidated appeal, the Appellant, Alina Julia England, seeks review of four judgments: a March 9, 2016 judgment denying her motion to recuse Judge Nakisha Ervin-Knott; a March 31, 2016 judgment designating the Appellee, James England, as the domiciliary parent; a June 10, - 2016 judgment granting Mr. England's motion for sanctions against Ms. England, and awarding him $95, 450.19 in court costs, attorneys' fees; and an August 17, 2016, judgment granting Mr. England's Exception of No Cause of Action, dismissing with prejudice Ms. England's Petition to Annul Judgment filed on June 3, 2016, and awarding Mr. England costs and attorney's fees in the sum of $1, 592. Finding no error, we affirm.

         Facts and Procedural History

         This instant appeal involves an acrimonious custody suit between the parties ultimately resulting in a judgment awarding sanctions, attorneys' fees, and court costs to Mr. England and against Ms. England.

         In 2014, Mr. England filed a petition for divorce from Ms. England, wherein he also sought joint custody of the parties' two minor children. Ms. England, in response, filed a reconventional demand and a petition for protection from abuse, under La. Rev. Stat. 46:2131, wherein she sought sole custody due to Mr. England's alleged physical abuse of her and the minor children. The parties subsequently entered into an agreement with mutual injunctions prohibiting abuse, harassment, stalking, or threatening one another. Additionally, Ms. England dismissed the petition for protection from abuse, and Mr. England consented to supervised visitation with the children. On January 26, 2015, the district court executed a judgment detailing the agreement.

         On March 4, 2015, Ms. England filed a petition for protection from abuse against Mr. England asserting that he punched one of the children in the stomach during a supervised visit. She further indicated that the incident was reported to the New Orleans Police Department, the Department of Children and Family Services, and the Audrey Hepburn Care Center. Moreover, in May 2015, she filed an addendum to the petition for protection from abuse alleging:

• the minor children suffered from anxiety following visits with their father and resulting in nightmares and bedwetting;
• Mr. England twisted the arm of one of the children;
• Mr. England did not feed the children while they were with him;
• Mr. England threw one of the children into the deep end of a pool despite the child not knowing how to swim; and,
• Mr. England once held the head of one of the children under water.

         A three-day trial was held on both petitions resulting in the district court issuing a judgment dismissing the petitions with prejudice on July 13, 2015, with reasons for judgment. Ms. England did not appeal the judgment.

         Thereafter, approximately two weeks prior the custody trial, Ms. England filed a motion to recuse Judge Ervin-Knott, who denied the motion and signed an expedited order for re-allotment. The motion was re-allotted to Judge Piper Griffin, who denied it on March 16, 2016. The case was then re-allotted back to Judge Ervin-Knott.[1]

         Shortly thereafter, a two-day custody trial was held resulting in the parties being awarded joint and shared custody with Mr. England being designated as the domiciliary parent. The district court rendered a judgment on March 31, 2016 and Reasons for Judgment.[2]

         Mr. England later filed a motion for sanctions, attorneys' fees, and court costs against Ms. England wherein he asserted that she filed numerous frivolous petitions for protection from abuse against him on her behalf and on behalf of the parties' minor children without exercising due diligence prior to the filings. On June 10, 2016, the district court granted his motion and awarded him $95, 450.19 representing reasonable attorneys' fees, court costs, and related costs he incurred as a result of Ms. England's March 4, 2015, and May 21, 2015 petitions. The district court also rendered Reasons for Judgment.

         Thereafter, Ms. England filed a petition to annul the July 13, 2015 judgment, to which Mr. England filed an exception of no cause of action. The district court granted the exception and dismissed the petition to annul on August 17, 2016. The instant timely appeals followed, which were consolidated by this Court on May 1, 2017. Ms. England raises four assignments of error:[3]

1. the district court clearly erred as a matter of law and manifestly abused its discretion in denying the motion to recuse Judge Ervin-Knott;
2. the district court manifestly abused its discretion in designating Mr. England as the domiciliary parent;
3. the district court clearly erred as a matter of law and manifestly abused its discretion in sanctioning Ms. England in the amount of $95, 450.19 for filing the March 4, 2015, and May 21, 2015, petitions for protection from abuse; and
4. the district court erred by maintaining Mr. England's Exception of No Cause of Action and dismissing with prejudice Ms. England's petition to annul judgment in clear violation of Louisiana law.

         Motion for Recusal

         Ms. England avers that Judge Ervin-Knott violated Judicial Canon 3(6) and had ex parte communications with witnesses and other professionals relating to the case and allowed these communications to create an unfair bias against Ms. England. She alleges that Judge Ervin-Knott engaged in improper ex parte communications with various individuals: a St. Tammany Parish detective investigating child abuse allegations; a ...


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