FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06137 C\W
2017-02261, DIVISION "B" Honorable Rachael D.
D. WINSBERG JONATHAN D. GAMBLE ROBIN PENZATO ARNOLD ELIZABETH
LORIO BAER WINSBERG & ARNOLD, LLC COUNSEL FOR
PHILLIP A. WITTMANN BROOKE C. TIGCHELAAR CARMELITE MARIE
BERTAUT STONE PIGMAN WALTHER WITTMANN L.L.C. COUNSEL FOR
composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge
Tiffany G. Chase
Tiffany G. Chase Judge
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
Background and Procedural History
underlying facts of this case have been before this Court
numerous times. 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.
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.
March 13, 2017, Ms. England filed a fourth petition for
protection from abuse, alleging that Mr. England abused both
children on several occasions. 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.
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.
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. 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.
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,
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 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.
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.
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