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Jones v. Jones

Court of Appeals of Louisiana, Fifth Circuit

May 29, 2019





          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg


         Appellant, Shaun Adel Jones, [1] seeks review of the trial court's July 9, 2018 Judgment addressing custody and visitation issues. Shaun does not contest the substance of the trial court's custody rulings, but contends the trial court erred by finding its ruling rendered from the bench following the February 15, 2017 custody trial was an interim order, rather than a considered decree subject to the Bergeron[2]standard. Shaun also objects to the trial court's appointment of a custody evaluator at a subsequent status conference and contends that certain portions of the July 9, 2018 Judgment fail to properly set forth the custody and visitation terms addressed on the record following the status conference.

         As explained more fully below, we affirm the trial court's July 9, 2018 Judgment, but remand the matter to the trial court to amend certain portions of the judgment as instructed herein. The record indicates that Shaun stipulated to the interim nature of the trial court's custody and visitation rulings. Furthermore, we do not find that the trial court abused its discretion by appointing a custody evaluator.


         The parties, Shaun Adel Jones and Trieonne Washington Jones, share custody of three minor children born during their marriage. On March 21, 2013, Trieonne filed a petition for divorce, which included a request for joint custody and for designation as the domiciliary parent. On May 6, 2013, the parties entered into a stipulation designating Trieonne as the "primary custodial parent," but did not stipulate to a visitation schedule.

         On June 2, 2014, Shaun filed a motion to modify custody and child support alleging Trieonne improperly limited his visitation with the children. Shaun argued that it was in the best interest of the children to award him "joint/shared custody"[3] with either no domiciliary parent or both parties designated as co-domiciliary parents. He also asked that the parties exercise equal visitation and custodial time with the children. The matter was set for hearing on July 7, 2014, and the minute entry from that hearing date indicates "the parties stipulated to maintaining joint custody." On August 25, 2014, the trial court issued a written judgment providing as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED the parties will continue the present custody arrangement with mother, Trieonne W. Jones, as domicile parent, and with father, Shaun A. Jones having custody every other weekend from Friday to Sunday and furthermore Mr. Jones shall have the right to request additional weekday visitation by contacting Trieonne Jones.

         The trial court signed a judgment of divorce on August 28, 2014. On October 8, 2014, Shaun filed a motion for contempt alleging Trieonne failed to adhere to the new weekend visitation schedule and refused to allow him weekday visitation with the children. On November 5, 2014, the parties entered into a consent judgment maintaining joint custody. Trieonne remained as the domiciliary parent and Shaun's visitation was extended to every other week from Thursday through Monday. The parties also agreed to summer and holiday visitation schedules and to enroll in Our Family Wizard within 30 days.[4]

         On April 28, 2016, Shaun filed a motion for contempt and to modify custody. In his motion, Shaun again alleged it would be in the best interest of the minor children for the parties to have "joint/shared custody" with equal visitation time and either no domiciliary parent or both parties designated as co-domiciliary parents. On May 20, 2016, Trieonne filed an ex parte motion for temporary sole custody. The trial court denied her request for temporary sole custody and set the matter for hearing. Also on August 17, 2016, Trieonne filed a motion asking the trial court to conduct a Watermeier[5] hearing with the children to allow the trial court to evaluate their concerns in determining custody. On December 15, 2017, Trieonne moved to voluntarily dismiss her ex parte motion for temporary sole custody, which the trial court granted. A minute entry from a January 23, 2017 hearing date states the trial court would not hold a Watermeier hearing, but would briefly speak to the minor children in chambers.[6]

         After several continuances, the trial court set a trial date for Shaun's motion to modify custody on February 15, 2017. Shaun called six witnesses to testify, including himself, and introduced numerous exhibits into evidence before resting his case. Prior to presenting her case, Trieonne moved for directed verdict arguing that Shaun failed to meet his burden to obtain a modification of the consent custody order entered into between the parties on November 5, 2014. Trieonne argued that Shaun failed to prove it was in the best interest of the children for the parties to share custody with a 50/50 visitation schedule and no domiciliary parent designation.

         After hearing oral argument on Trieonne's motion for a directed verdict, the trial court apparently declined to grant a directed verdict and instead chose to proceed directly to granting Shaun's motion to modify custody as follows:

1) The trial court determined the parties would share 50/50 custody with a 2, 2, 3 visitation schedule. The trial court indicated that it would allow the attorneys to explore whether the parties could agree on how they would allocate the visitation days.
2) With respect to the domiciliary parent, the trial court stated as follow:
You are domiciliary parent, ma'am, however, that is only to where they reside. All school decisions are going to be made together. All health and welfare decisions will be made together. In this case, the domicile is the address as to where they reside, but you're going to share everything.
3) With respect to holidays, the trial court stated one party would exercise visitation on Christmas Eve and the other would have Christmas Day, with the schedule flipping every other year. The trial court further stated the parties would follow their regular schedule for the remaining holidays.
4) The trial court determined that Shaun would bring their son for haircuts, and Trieonne would bring the girls to dance rehearsals and recitals.
5) The trial court ordered that all contact and email lists should include both parents' contact information, including but not limited to doctors, girl scouts, and sports related activities.
6) With respect the children's activities, the trial court determined that both parties must concur on Our Family Wizard before signing the children up for additional activities.
7) Finally, the trial court ordered the parties to send and return all of the children's uniforms, clothes and equipment when exchanging custody.

         After the trial court provided its ruling, Trieonne's counsel noted that she only asked for a directed verdict and did not forego the right to present her client's case:

MS. GAUFF: I asked for directed verdict. I didn't forego my ability to put on a case, so I'm going to note - - so please note our objection to the court's ruling without permitting us to put on a case.
THE COURT: Do you want to put on your case?
MS. GAUFF: I'm just making a record - -
THE COURT: No, I'm saying, do you want to?
MS. GAUFF: I'm putting - - the Court has ruled so I'm just making my objection and protecting the record.

         After this exchange with the trial court, Trieonne's counsel moved to withdraw as counsel with respect to any further custody issues. The trial court granted counsel's request to withdraw and signed a written order to that effect on March 14, 2017.

         On March 17, 2017, Trieonne's current counsel filed a motion to enroll on behalf of Trieonne with respect to custody issues, as well as the collection of past due child support. On March 27, 2017, Trieonne filed a motion to reset the trial regarding custody issues. In this motion, Trieonne alleged that at some unspecified time after the February 15, 2017 custody trial, "the Court determined that TRIEONNE WASHINGTON was not given the opportunity to present her case in chief to the court. The matter was then considered an open custody trial to be reset by Ms. Jones for presentation of her case in chief." Trieonne further averred that "the Court converted her bench ruling to an interim judgment pending the completion of the hearing." The record does not include any judgment, transcripts or minute entries evidencing these alleged ...

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