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Harrell v. Harrell

Court of Appeals of Louisiana, First Circuit

December 5, 2017


         On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana No. 105, 791 Div. "B" The Honorable Thomas J. Kliebert, Jr., Judge Presiding

          Kim Segura Landry Gonzales, LA Attorney for Plaintiff/ Appellee Kevin Harrell

          J. Ogden Middleton, II Alexandria, LA Attorney for Defendant/ Appellant Cynthia Harrell


          HOLDRIDGE, J.

         In this child custody dispute, the mother appeals from a trial court judgment awarding the father sole custody of the parties' minor child. For the reasons that follow, we affirm.


         Kevin Harrell and Cynthia Harrell were married in February 1989. Three children were born of the marriage: daughter Jessica Harrell (born in 1993), daughter Lindsey Harrell (born in 1995), and daughter C.H. (born in 2004).[1] In December of 2012, Cynthia allegedly attempted suicide resulting in her admittance at Glenwood Regional Medical Center in Monroe, Louisiana. She was released on December 13, 2012.[2] As a result of this incident, Kevin filed for a temporary protective order against Cynthia[3] wherein the trial court granted Kevin temporary custody of Lindsey Harrell, who was a minor at the time, and C.H. The temporary protective order was later dismissed by the trial court. Subsequently, Kevin filed a Petition for Divorce on January 3, 2013.

         Due to the nature of the relationship between Cynthia and Kevin pending their divorce, the parties entered into a stipulated judgment on January 25, 2013, agreeing to share equal custody of C.H. and that the parties would complete a custody evaluation with Dr. Jesse Lambert, a licensed clinical psychologist. As a result of the custody evaluation recommendation by Dr. Lambert, [4] the parties entered into another stipulated judgment on March 1, 2013, awarding joint shared custody of C.H. with both parents being designated as co-domiciliary parents.[5]The trial court rendered a judgment of divorce on February 28, 2014.

         On July 28, 2015, Cynthia filed a rule for ex parte custody seeking sole custody of C.H. alleging that she was not doing well in school and that her relationship with Kevin was deteriorating. The trial court held a hearing on Cynthia's motion on August 28, 2015. Cynthia submitted an affidavit stating that C.H.'s mental health had deteriorated "to the point where she was threatening to severely hurt herself if she had to go see her father. She was hospitalized by [a] mental health professional on July 22, 2015."[6] The affidavit further alleged that C.H.'s treating psychiatrist, Dr. Megan Crochet, recommended that Cynthia seek an emergency custody order so that C.H. could be released to Cynthia. At the hearing, the parties entered into a stipulated judgment, agreeing to a psychological evaluation to be performed by Dr. Alan Taylor, [7] a forensic psychologist, and agreeing to not change the current custody arrangement of C.H. The trial court signed a judgment on September 16, 2015 in accordance with the stipulated judgment.

         The trial court issued an Order on February 11, 2016, maintaining the current physical custody of C.H. and ordering that Cynthia's visitation with C.H. continue; however, should Cynthia become unable to control her actions around C.H. to the extent that C.H. began missing school or had any suicidal ideations, visitation would stop. On February 29, 2016, Dr. Taylor provided the parties and the trial court with a written report that contained his recommendation regarding the custody assessment of C.H. Dr. Taylor found that this was a high conflict case and ultimately recommended that the best arrangement for C.H. was to spend the school week primarily with Kevin and alternate weekends with Cynthia.

         On March 8, 2016, Kevin filed a rule to modify custody, requesting that the recommendation set forth in the psychological evaluation by Dr. Taylor be implemented immediately in order to avoid further harm to C.H. On March 14, 2016, the trial court held a hearing on Kevin's rule to modify custody and the parties stipulated that C.H. would receive counseling for a week with the counselor chosen by Dr. Taylor in order for C.H. to be monitored pending the trial set for April 1, 2016.

         On April 1, 2016, the parties stipulated to a modification of their joint custody of C.H., designating Kevin as the domiciliary parent, [8] and changing the physical custody of C.H. with Cynthia to every other weekend from Friday after school until Sunday at 6:00 p.m.[9] The stipulated judgment further ordered that C.H. "shall attend counseling with Marcia Cox[10] if available and if not, a counselor approved by Dr. ... Taylor."

         Following the hearing on April 1, 2016, Cynthia, C.H., and family members abruptly entered the Ascension Parish clerk's office where Kevin was located, waiting for the judgment to be signed, and began yelling profanity. The dispute resulted in the Ascension Parish Sheriffs Office responding to the incident. While the deputies were taking statements from the witnesses, C.H. allegedly claimed that "she just wanted everyone to be happy and that she would kill herself if she could not live with her mother." This incident was captured on video and placed on social media by Cynthia. As a result of C.H.'s suicidal statement, the sheriffs office transported C.H. to the Baton Rouge General for a physician's emergency certificate (PEC), pursuant to La. R.S. 28:53. C.H.'s fragile mental state resulted in her being admitted to Brentwood Hospital in Shreveport, Louisiana and then San Marcos Treatment Center in Texas for further inpatient treatment.[11]

         On April 14, 2016, Kevin filed a rule to modify, requesting a suspension of all contact between Cynthia and C.H. until a further order from the trial court. In his rule to modify, Kevin requested that Cynthia, her family, or agents be suspended from contacting C.H. or posting on social media anything about C.H. On April 29, 2016, Kevin filed a supplemental and amended rule to modify with an ex parte order, alleging that the ongoing contact between Cynthia and C.H. had extremely disrupted C.H.'s treatment, which was detrimental to her progress. While C.H. was at San Marcos for treatment, Cynthia and her two daughters allegedly called C.H. and told her not to cooperate with the treatment and remain silent. Kevin further requested from the trial court that all contact between C.H. and Cynthia immediately cease until C.H. made significant improvement and until Cynthia received some form of mental health treatment. The ex parte order was denied by the trial court and the matter was set for hearing on May 25, 2016.

         Kevin filed a second supplemental and amended rule to modify custody, seeking sole custody of C.H. and requesting that child support to be set. In his second supplemental and amended rule to modify custody of C.H., Kevin prayed that there be limited contact between C.H. and Cynthia and minimal visitation supervised by a licensed social worker. Kevin further requested that Cynthia obtain specialized treatment.

         On September 11, 2016, Cynthia fax-filed to the trial court a motion to compel compliance with subpoena duces tecum and rule to show cause for contempt and independent custody evaluation. On October 28, 2016, the trial court held a hearing on Cynthia's motion and after all the evidence was submitted, it made an oral ruling, granting the motion to compel Dr. Taylor to comply with the subpoena duces tecum, ordering him to produce to the trial court any evidence in his record that may be harmful to C.H. for an in camera inspection. The trial court further ordered that Dr. Taylor produce the remainder of his records regarding the evaluation to Cynthia. The judgment was signed by the trial court on November 17, 2016.

         The trial on Kevin's rule to modify custody was held on November 15 and 16 of 2016. After multiple experts testified regarding their findings and recommendations, and numerous fact witnesses testified to the various faults and attributes of the parties, the trial court rendered judgment awarding sole custody of C.H. to Kevin on December 27, 2016. The trial court issued reasons for judgment on January 3, 2017. From this judgment, Cynthia devolutivley appeals.[12]


         The court shall award custody in accordance with the best interest of the child. La. C.C. art. 131. Indeed, the best interest of the child is the sole criterion to be met in making a custody award and the trial court must pursue actively that course of conduct which will be of the greatest benefit to the child. It is the child's emotional, physical, material and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d 700, 702.

         If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. La. C.C. art. 132. In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in 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. Id. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. State in the Interest of J, K, and T, 582 So.2d 269, 275 (La.App. 1 Cir. 1991), writ denied, 583 So.2d 1145 (La. 1991). A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. La. C.C. art. 136(A).

         In determining the best interest of the child, the court shall consider all relevant factors, and such factors may include those enumerated in La. C.C. art. 134.[13] Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Whitmore v. Stamps, 2012-2069 (La.App. 1 Cir. 6/7/13), 2013 WL 2490337, writ denied, 2013-1539 (La. 7/24/13), 120 So.3d 243. 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. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id.


         As a preliminary matter, we must first discuss Kevin's "Motion for Partial Dismissal of Appeal and for Partial Suspension of Briefing Delays." In his motion, Kevin alleges that because Cynthia only appealed the January 5, 2017 judgment, all assignments of error relating to the November 17, 2016 judgment are not appealable because all time delays have run pursuant to La. C.C.P. arts. 2083 and 2087. However, when an unrestricted appeal is taken from a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to review of the final judgment. See Wesley v. David, 2013-1500 (La.App. 1 Cir. 2/18/14), 2014 WL 651784 n.5 (unpublished). Because the November 17, 2016 interlocutory judgment relates to the January 5, 2017 judgment, it is a final appealable judgment. Therefore, Kevin's motion is denied.

         A. Modification of Custody

         Cynthia's main contention on appeal is that the trial court erred in its modification of the custody of C.H. Specifically, Cynthia alleges that the trial court erred in determining that Kevin carried his burden of proving his entitlement to an award of sole custody of C.H. The burden of proof on a party who wishes to modify a prior permanent custody award depends on the nature of that prior award.[14] If the prior permanent custody award is a stipulated judgment, which typically is one resulting from the parties' consent to a particular custodial arrangement, a party seeking modification of the prior permanent custody award must prove that there has been a material change in circumstances since the original decree and that the proposed modification is in the best interest of the child. Beene v. Beene, 43, 845 (La.App. 2 Cir. 10/22/08), 997 So.2d 169, 172; see also Richard v. Richard, 2009-0299 (La.App. 1 Cir. 6/12/09), 20 So.3d 1061, 1066. In this case, the underlying custody decree is the April 1, 2016 stipulated joint custody decree that was reduced to writing and signed by the trial court on April 26, 2016. In order to modify that custody plan or decree, as requested by Kevin, he had to prove, and the trial court had to find, that: (1) a change in circumstances materially affecting the welfare of the child had occurred since the rendition of the April 26, 2016, joint custody implementation plan and (2) the modification proposed by Kevin was in the best interest of the child-i, e., Kevin having sole custody.

         (1) Material Change in Circumstances

         In his rule to modify, Kevin alleged a material change in circumstances had occurred, warranting a change in the parties' prior custodial arrangement. Specifically, Kevin stated that the incident that occurred at the courthouse after he was designated the domiciliary parent of C.H. warranted a modification of custody, as this evidenced a harmful atmosphere for C.H. To further support his position, Kevin stated in his supplemental and amended rule to modify that after C.H. began inpatient treatment, Cynthia began disrupting C.H.'s progress, and for that reason he desired to be awarded sole custody of C.H. Kevin ...

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