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Henry v. Sullivan

Court of Appeals of Louisiana, First Circuit

July 12, 2017

DAVID HENRY
v.
JANICE SULLIVAN

         On Remand from the Supreme Court of Louisiana Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana Trial Court No. 2015-12388 Honorable Mary Clemence Devereux, Judge

          TAMMY KARAS GRIGGS COVINGTON, LA ATTORNEY FOR PLAINTIFF-APPELLEE DAVID HENRY

          RICHARD DUCOTE COVINGTON, LA ATTORNEY FOR DEFENDANT-APPELLANT JANICE SULLIVAN

          BEFORE: PETTIGREW, McDONALD, AND PENZATO, JJ.

          PENZATO, J. CONCER

          PETTIGREW, J.

         This case comes before us on remand by order of the Louisiana Supreme Court. The appellant, Janice Sullivan, challenges the re-allotment of her case and the trial court's February 12, 2016 judgment, which granted sole custody of her minor child to the child's father, the appellee, David Henry, and only allowed her supervised visitation for eight hours each week. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Ms. Sullivan and Mr. Henry were never married, but are the parents of a daughter born on December 11, 2012. In June 2015, Mr. Henry filed a petition to establish paternity and custody. The matter was set for a Hearing Officer Conference on August 3, 2015, and a judge hearing on October 22, 2015. Shortly after filing his original petition, Mr. Henry filed an exparte motion for custody in which he alleged that Ms. Sullivan had indicated she might attempt suicide and had done so by swallowing a handful of Valium while drinking alcohol. Mr. Henry further alleged that the hospital had sent Ms. Sullivan to a psychiatric hospital for a seventy-two hour hold. Based upon the allegations contained in Mr. Henry's ex parte motion, the trial court granted Mr. Henry temporary sole custody of the minor child and ordered that there be no visitation by Ms. Sullivan until further court orders. The trial court also scheduled a hearing for July 16, 2015.

         In response, Ms. Sullivan filed an ex parte motion asking the trial court to reset the hearing for an earlier date because she was scheduled to take a nursing school exam on July 16. Ms. Sullivan also requested that pending the hearing, she be granted supervised visitation, with her parents providing the required supervision at their home. In addition, Ms. Sullivan further alleged that Mr. Henry had a trial set for July 24, 2015, on a second offense driving under the influence and careless operation of a vehicle and that he had not been with the child more than a few hours prior to filing his ex parte request for custody.

         In an order signed on June 30, 2015, the trial court granted Ms. Sullivan visitation on a rotating two day schedule, said visitation to be supervised by the maternal grandparents. The trial court further ordered that Mr. Henry not drive with the minor child pending the hearing, reset for July 9, 2015.

         At the July 9, 2015 hearing, the parties entered into a stipulated judgment that the trial court signed on July 28, 2015. In the judgment, Mr. Henry and Ms. Sullivan agreed to submit to a brief forensic custody evaluation by Dr. A. James Klein, who was vested with the authority to determine the minor child's need for a separate psychological evaluation and the parties' needs for any substance abuse and mental health evaluations. Ms. Sullivan agreed to complete and execute authorizations allowing Mr. Henry access to her medical records for three healthcare providers (related to Mr. Henry's report that Ms. Sullivan had attempted suicide). Both parties agreed to submit to hair and urine drug testing. Pending a future hearing, Mr. Henry and Ms. Sullivan agreed to rotate physical custody of the minor child every three days with the exchanges to take place at 5:00 p.m. at a local drug store. Ms. Sullivan agreed that her physical custody of the minor child would be supervised by one or both of her parents. Mr. Henry stipulated that he would only drive the minor child in a vehicle installed with an ignition interlock device. Both parties agreed not to be under the influence of alcohol, illegal drugs, or prescription drugs for which they did not have a prescription while the minor child was in their physical custodies.

         The matter proceeded to hearing in Division L, before Judge Dawn Amacker, on October 22, 2015. Following testimony from several witnesses, and considering the documentary evidence introduced by the parties, Judge Amacker issued an oral ruling particularly noting her concerns regarding Ms. Sullivan's mental health issues and Ms. Sullivan's ability to parent the minor child. Judge Amacker ruled that Mr. Henry should be granted sole custody of the minor child, with Ms. Sullivan having supervised visitation pending a full psychiatric evaluation. Counsel for Mr. Henry was to prepare a judgment in accordance with Judge Amacker's ruling.

         However, prior to Judge Amacker signing a written judgment, Ms. Sullivan's counsel withdrew from representation. On November 2, 2015, Richard Ducote enrolled as new counsel for Ms. Sullivan and moved for Judge Amacker's recusal. In support of the motion for recusal, Ms. Sullivan alleged that Richard Ducote and Judge Amacker "have a very contentious relationship ... which [has] prompted Judge Amacker to voluntarily recuse herself in other proceedings." Ms. Sullivan further asserted that recusal was mandated because Judge Amacker was "biased and prejudiced against counsel to such an extent that she cannot conduct fair and impartial proceedings." Lastly, she alleged Judge Amacker's husband's law firm was involved in an unrelated suit brought by Ms. Sullivan's family.

         In a November 10, 2015 order, Judge Amacker voluntarily recused herself from the case, explaining, in pertinent part:

Richard Ducote has chosen to engage in public conduct that personally and professionally attacks Judge Amacker. The Court does not agree that Mr. Ducote's conduct has caused Judge Amacker by design or effect to be biased or prejudiced against him to such an extent that his clients may not receive fair and impartial treatment. Furthermore, the Court had no prior knowledge of the lawsuit cited by Mr. Ducote, and after inquiry does not agree that the Court is required to recuse on that basis as the case he cites was dismissed on May 14, 2015; Mr. E.B. Dittmer, II, did not represent any party involved in that proceeding; and finally, that proceeding has absolutely no connection to the case at issue.
The Court does find that voluntary recusal is appropriate, to avoid even an appearance of impropriety, in any case in which Richard Ducote is enrolled as counsel of record for one of the parties and therefore voluntarily recuses in the above captioned matter.

         Judge Amacker ordered that the case be re-allotted to Division K, presided over by Judge Mary Devereux, which, like Division L, has jurisdiction limited to family and juvenile matters pursuant to La. R.S. 13:621.22(B) as follows:

B. There are hereby created two additional district judgeships for the Twenty-Second Judicial District for the parishes of St. Tammany and Washington.
(1) The first additional judge provided for in this Subsection and his successors shall preside over Division K, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division K is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.
(2) The second additional judge provided for in this Subsection and his successors shall preside over Division L, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division L is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.
(3) For purposes of this Subsection, "family and juvenile matters" shall include all actions arising under Titles IV, V, and VII of Book I and Title VI of Book III of the Civil Code and related provisions of the Civil Code Ancillaries, all actions arising under the Children's Code, adoptions arising under the Civil Code, actions involving protection from family violence pursuant to R.S. 46:2131 et seq., and actions for enforcement, collection of support, and paternity pursuant to R.S. 46:236.1.1 et seq.
(4) For purposes of this Subsection "juvenile matters" shall include but not be limited to all actions arising under or incidental to the Children's Code.
(5) For purposes of this Subsection, the subject matter jurisdiction shall also include all actions incidental to all matters listed in Paragraphs (3) and (4) of this Subsection, including but not limited to contempt, civil warrants, writs of habeas corpus, curatorship, change of name, prenuptial or separate property agreements, interspousal donations, lesions, and challenge to consent judgment.

         Ms. Sullivan objected to the re-allotment, arguing that the case should have been randomly allotted amongst all the divisions of the 22nd Judicial District Court. Judge Devereux denied Ms. Sullivan's objection and subsequent motion for new trial. Thereafter, on February 12, 2016, Judge Devereux signed a judgment and issued written reasons for judgment. Judge Devereux stated that she had reviewed the evidence from ...


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