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England v. England

Court of Appeals of Louisiana, Fourth Circuit

July 5, 2018

JAMES ENGLAND
v.
ALINA JULIA ENGLAND

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06137 C\W 2017-02261, DIVISION "B" Honorable Rachael D. Johnson, JUDGE

          MARC D. WINSBERG JONATHAN D. GAMBLE ROBIN PENZATO ARNOLD ELIZABETH LORIO BAER WINSBERG & ARNOLD, LLC COUNSEL FOR PLAINTIFF/APPELLEE

          PHILLIP A. WITTMANN BROOKE C. TIGCHELAAR CARMELITE MARIE BERTAUT STONE PIGMAN WALTHER WITTMANN L.L.C. COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Tiffany G. Chase

          Tiffany G. Chase Judge

         Alina Julia England (hereinafter "Ms. England") seeks review of the December 15, 2017 judgment denying her request to return to joint physical custody of her minor children with her ex-husband James England (hereinafter "Mr. England"). The judgment also ordered Ms. England to seek mental health counseling addressing parental alienation from a specific therapist. For the reasons that follow, we vacate the portion of the judgment that orders Ms. England to seek treatment from a specific therapist and remand the matter for an evidentiary hearing within thirty (30) days, of the date of this opinion, to address an increase in unsupervised visitation.

         Factual Background and Procedural History

         The underlying facts of this case have been before this Court numerous times.[1] Mr. and Ms. England have engaged in highly contentious litigation since the parties divorced in 2015. The contentiousness surrounds the custody of the couple's two minor children.

         A brief history of the procedural history of this litigation is relevant to our analysis. On March 31, 2016, the trial court entered a considered decree awarding the parties joint legal and shared physical custody of the minor children. The trial court found it was in the best interest of the children for Mr. England to be designated domiciliary parent. The court favored Mr. England because of his demonstrated willingness to communicate with Ms. England regarding the children. The court further found Ms. England was engaging in behavior which constituted alienating behavior towards Mr. England. Ms. England appealed the judgment to this Court, citing numerous assignments of error, but mainly challenging the trial court's designation of Mr. England as domiciliary parent. On June 28, 2017, this Court affirmed the ruling designating Mr. England as the domiciliary parent, finding the trial court did not abuse its discretion.

         On March 13, 2017, Ms. England filed a fourth petition for protection from abuse, alleging that Mr. England abused both children on several occasions.[2] In response, Mr. England filed a petition for emergency temporary custody pursuant to La. C.C.P. art. 3945. Both petitions were heard on March 23, 2017. The trial court dismissed Ms. England's petition for protection from abuse, finding no evidentiary support for the issuance of a protective order. Further, by judgment dated March 30, 2017, the trial court (1) entered an interim award of temporary sole custody to Mr. England; (2) implemented a ninety day no contact order between Ms. England and the children; (3) awarded Ms. England eight hours of weekly supervised visitation; and (4) ordered that the supervised visitation continue until Ms. England completed therapy with Betsey Backe, LCSW (hereinafter "Ms. Backe"). In modifying custody, on an interim basis, the trial court found that Mr. England met his burden of proof that a change of circumstances existed which materially affected the welfare of the children and that modification of custody was justified. The trial court further determined that Ms. England was naïve to the fact that her actions were having a detrimental effect on the development of the children. Ms. England appealed the judgment.

         On March 2, 2018, this Court issued an opinion finding, "while the court has the authority and discretion to order counseling in custody matters, we find no authority to support the order of a specific therapist to provide that therapy." England, 238 So.3d at 1071. The March 30, 2017 judgment was affirmed in all other respects.

         Meanwhile, on August 2, 2017, believing that she had complied with the trial court's March 30, 2017 judgment, Ms. England filed an expedited rule to remove supervised visitation and to establish joint custody.[3] She requested the trial court vacate, modify or supplement the previous custody judgment as she had satisfied the treatment goals outlined in her mental health counseling. In response to Ms. England's expedited rule on October 27, 2017, Mr. England filed an exception of no cause of action, arguing that she failed to plead a valid cause of action warranting modification of the custody order. Mr. England also filed a motion to exclude the custody opinion testimony of Ms. Backe contending that it should be excluded because she was not designated as a custody evaluator. A hearing on the motions was held on November 13, 2017. The trial court sustained Mr. England's exception of no cause of action and provided Ms. England thirty days to amend her expedited rule. Additionally, the trial court denied Mr. England's motion to exclude custody opinion testimony but reserved his right to object to any custody opinion testimony offered by any expert at trial.

         On November 22, 2017, Ms. England filed an amended expedited rule to terminate temporary custody, to remove supervised visitation and return to the permanent custody arrangement, requesting the trial court revert to the March 2016 custody order awarding joint custody. The expedited rule was heard by the trial court on December 1, 2017, and December 6, 2017. The trial court issued judgment on December 15, 2017[4] ordering that (1) Mr. England continue to have sole custody of the minor children; (2) Ms. England eight hours every Sunday from 10:00 a.m. to 6:00 p.m. of unsupervised visitation; (3) Ms. England be allowed to attend extracurricular activities, meets, performances and school programs and that Mr. England share information with her regarding these events; (4) Ms. England communicate with the minor children via telephone, FaceTime or email (with telephone or FaceTime calls conducted between the hours of 7:00 p.m. and 8:00 p.m.); (5) Ms. England seek professional therapy from Daliah Bauer, Ph.D., to address parental alienation, specifically addressing, the previous abuse allegations against Mr. England, her disparaging remarks about Mr. England in the presence of the minor children, the numerous frivolous investigations against Mr. England and her use of the minor children as pawns[5] and (6) a new parenting coordinator be appointed, who shall be contacted if any issues arise between the parties. From this judgment, Ms. England seeks expedited review.

         Standard of Review

         "Child custody determinations made by the trial court are entitled to great weight and, upon appellate review, that determination will not be disturbed absent a clear showing of abuse of discretion." Hilkirk v. Johnson, 2015-0577, p. 25 (La.App. 4 Cir. 12/23/15), 183 So.3d 731, 746 (citations omitted). The goal of every child custody case is to determine what is in the best interest of the child, with each case viewed based on its own particular facts and circumstances. Id. (citing Mulkey v. Mulkey, 2012-2709, p. 15 (La. 5/7/13), 188 So.3d 357, 367). "[T]he Louisiana Supreme Court described the appellate review standard by stating that 'upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.'" Lannes v. Lannes, 2007-0345, p. 3 (La.App. 4 Cir. 2/13/08), 977 So.2d 1119, 1121 (citing Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La. 1986)). As such, we review this matter under an abuse of discretion standard of review.

         Discussion

         Ms. England lists numerous assignments of error on appeal. However, we find the central issue to be two-fold: whether the trial court abused its discretion in denying Ms. England's motion to terminate the interim judgment awarding sole custody to Mr. England; and whether the trial court ...


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