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Calhoun v. Calhoun

Court of Appeals of Louisiana, Second Circuit

August 14, 2019

ROY STEVEN CALHOUN Plaintiff-Appellee
v.
JENNIFER ANNE LEVINSON CALHOUN Defendant-Appellant

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 20151292 Honorable Alvin Rue Sharp, Judge.

          DONALD L. KNEIPP RICHARD L. FEWELL, JR. COUNSEL FOR APPELLANT

          BREITHAUPT, DUNN, DUBOS, SHAFTO & WOLLESON, L.L.C. COUNSEL FOR APPELLEE BY: ROBERT ALAN BREITHAUPT

          Before PITMAN, STONE, and COX, JJ.

          STONE, J.

         The appellant, Jennifer Anne Levinson Calhoun ("Jennifer") has appealed the trial court's judgment which denied her rule to modify custody and to request a custody evaluation, and granted the request to modify custody filed by the appellee, Roy Steven Calhoun ("Steve"). For the following reasons, we affirm.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Jennifer and Steve (collectively referred to as "the Calhouns"), entered into a covenant marriage on April 8, 2006. Their child, E.M.C., was born on November 5, 2009. Steve is employed as a real estate attorney with a solo practice, while Jennifer is employed as a pediatric nurse practitioner. In March 2011, Jennifer self-reported her prescription medication addiction to the Louisiana State Board of Nursing ("nursing board"), and enrolled in the Recovering Nurse Program ("RNP"). She entered rehabilitation at Palmetto Addiction Recovery Center for a total of 12 weeks, which included 6 weeks of on-campus residential treatment. Jennifer also signed a monitoring contract with the nursing board for a period of 3 years which required her to: 1) attend four Alcoholics Anonymous ("AA") meetings per week; 2) attend RNP meetings once per week; 3) work AA's "12 step program;" 4) attend aftercare once per week; and 5) remain in contact with her AA sponsor.

         Jennifer successfully completed the requirements for the RNP in April 2014, but subsequently relapsed in or around November or December of the same year. On April 28, 2015, Jennifer was arrested for driving while intoxicated ("DWI"); the Calhouns physically separated the same day. The following day, Jennifer again, self-reported to the nursing board. She was subsequently admitted to Pine Grove, a detoxification and rehabilitation center located in Hattiesburg, MS, for a period of 90 days. On May 5, 2015, Steve filed a petition for divorce on the grounds of habitual intemperance, cruel treatment, excesses, and outrages pursuant to La. R.S. §9:307(B)(6).[1]He also filed for a temporary restraining order seeking temporary sole custody of E.M.C., alleging that Jennifer had a history of alcohol and prescription drug abuse.

         On May 8, 2015, the trial court granted Steve temporary sole custody of E.M.C. without setting a visitation plan ("May 8th judgment"). However, the trial court did grant Jennifer visitation supervised by her mother, Brenda Levinson ("Brenda") for a period of no more than 4 hours, if recommended by her treatment facility. The trial court set a hearing for May 28, 2015, for Jennifer to show cause as to why Steve should not be granted temporary sole custody until such a time as a hearing is held to determine a permanent custody award. At the hearing, the parties filed a joint motion and consent order which ordered all the provisions of the May 8th judgment to remain in effect.

         On May 29, 2015, Jennifer filed an answer to Steve's petition for divorce, denying the existence of any grounds for the divorce, and seeking both interim and final spousal support. On November 5, 2015, Steve filed a first supplemental and amended petition for divorce, requesting that Jennifer be ordered to pay child support pursuant to La. R.S. 9:315. Due to the recusal of the initial hearing officer assigned to this case, the first hearing officer conference ("HOC") took place on November 16, 2015. On December 21, 2015, the trial court issued a temporary order making the hearing officer conference report ("HOCR") rendered on November 16, 2015("November HOCR") a temporary order of the court, and fixed the next HOC for February 16, 2016 ("February HOC").

         In the November HOCR, the hearing officer determined that an award of sole custody to Steve, as opposed to joint custody with Jennifer, was in E.M.C.'s best interest. The November HOCR also ordered that:

1) Jennifer would have visitation with E.M.C. supervised by Jennifer's mother, Brenda, every other weekend from Friday at 6 p.m. until the following Sunday at 6 p.m.;
2) The parties were to follow a specific holiday and special occasions visitation schedule set by the hearing officer;
3) The parties were required to exchange contact information;
4) The parties were prohibited from having overnight guests of the opposite sex during visitation, using alcohol and/or prescription drugs, and discussing current and pending legal proceedings with and in the presence of E.M.C.;
5) Steve was ordered to maintain medical insurance coverage for Jennifer, and to pay the automobile note and insurance on the vehicle driven by Jennifer in lieu of spousal support; and
6) Steve was awarded exclusive use of the former matrimonial domicile and Jennifer was awarded the rental value of the matrimonial domicile set at $1, 274 per month.

         On February 18, 2016, both parties filed objections to the November HOCR disputing the hearing officer's findings of fact and recommendations.[2] After the February HOC, the trial court issued another temporary order making the HOCR rendered on February 16, 2016("February HOCR") a temporary order of the court. The provisions contained in the February HOCR were nearly identical to those set forth in the November HOCR with the following revisions:

1) Jennifer was ordered to pay $100 in child support; and
2) Steve was ordered to provide and maintain health, dental, prescription drug, vision, and orthodontic insurance coverage for E.M.C. and medical insurance coverage for Jennifer.

         On April 18, 2016, Jennifer filed a motion and order to set hearing date for her and Steve's previously filed objections to the November HOCR. The trial court subsequently issued an order setting the objections hearing on November 29, 2016. On September 21, 2016, Steve filed a rule for contempt alleging that Jennifer had violated the May 28, 2015 joint motion and consent order and the December 17, 2015 temporary order, by withdrawing the funds from her retirement accounts, which were presumptively considered community property. The trial court set the hearing on the rule for contempt on the same date as the hearing for Jennifer's objection.

         On October 24, 2016, Jennifer filed an answer to the rule for contempt admitting that she had liquidated the retirement accounts because she had no other means for support. On the morning of November 28, 2016, one day before the scheduled hearing, Steve's attorney sent Judge Sharp a letter indicating that the parties were currently in the process of confecting a consent judgment in which they would settle all the issues before the court in this matter.

         On June 7, 2017, Steve filed a petition for final divorce and moved for a preliminary default on July 17, 2017. Upon confirmation, the trial court rendered a judgment of divorce on July 18, 2017. Eight days later, on July 26, 2017, Jennifer filed a rule to modify custody and request custody evaluation alleging that there had been material and substantial change in circumstances of such a nature and degree that continuing to have Steve designated as domiciliary parent was so deleterious to the child as to justify modification of the custody decree. Jennifer further requested that Dr. John Simoneaux ("Dr. Simoneaux") be appointed as an expert and that both parties submit to a custody evaluation.

         On September 26, 2017, Steve filed an answer to Jennifer's rule to modify custody and request custody evaluation, alleging that an increase in Jennifer's custodial time would not be in E.M.C.'s best interest. The trial court referred Jennifer's rule to the hearing officer rather than setting a hearing date, and an HOC was subsequently set for October 11, 2017 ("October HOC"). After the October HOC, the trial court issued a temporary order making the October HOCR a temporary order of the court. The October HOCR ordered the following:

1) The parties would share joint custody of E.M.C. with Steve still designated as the domiciliary parent;
2) Jennifer would have visitation every other weekend from Friday at 3 p.m. to Monday at 8 a.m.; and, Thursdays from 3-8 p.m. during the weeks when she does not have weekend visitation;
3) A specific visitation plan for holidays and special occasions was established;
4) Jennifer would be entitled to four non-consecutive one-week periods provided that she give Steve notice of the desired weeks in writing by March 1st of each year;
5) Each party would be given the first option to provide care and supervision of E.M.C. for periods of time in excess of 8 hours;
6) In the event the parties decide that E.M.C. needs counseling, they must reach an agreement on the counselor and split costs;
7) Jennifer shall obtain and provide Steve with drug and alcohol test results;
8) Steve has the right to require Jennifer to submit to a drug test within 48 hours of written notice to be provided ...

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