203 So.3d 519 (La.App. 3 Cir. 2016), 16-287, Mason v. Mason

Docket Nº16-287
Citation203 So.3d 519, 16-287 La.App. 3 Cir. 10/05/16
Opinion JudgePHYLLIS M. KEATY, Judge.
Party NameGEORGE MASON, JR. v. DEANNA HARBISON MASON
AttorneyCharles A. Sam Jones, III, Attorney at Law, DeRidder, Louisiana, Counsel for Plaintiff/Appellee: George Mason, Jr. Wes Bailey, Attorney at Law, Leesville, Louisiana, Counsel for Defendant/Appellant: Deanna Harbison Mason. Mary K. Beaird, Attorney at Law, Leesville, Louisiana, Court-Appointed Coun...
Judge PanelCourt composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty, Judges. Pickett, J., concurs in part, dissents in part, and assigns written reasons. Elizabeth A. Pickett (In Part), J., concurring in part and dissenting in part.
Case DateOctober 05, 2016
CourtCourt of Appeals of Louisiana

Page 519

203 So.3d 519 (La.App. 3 Cir. 2016)

16-287 La.App. 3 Cir. 10/05/16

GEORGE MASON, JR.

v.

DEANNA HARBISON MASON

16-287

Court of Appeals of Louisiana, Third Circuit

October 5, 2016

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON, NO. 73,601. HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE.

AFFIRMED.

Charles A. " Sam" Jones, III, Attorney at Law, DeRidder, Louisiana, Counsel for Plaintiff/Appellee: George Mason, Jr.

Wes Bailey, Attorney at Law, Leesville, Louisiana, Counsel for Defendant/Appellant: Deanna Harbison Mason.

Mary K. Beaird, Attorney at Law, Leesville, Louisiana, Court-Appointed Counsel for Minor Child.

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty, Judges. Pickett, J., concurs in part, dissents in part, and assigns written reasons.

OPINION

[16-287 La.App. 3 Cir. 1] PHYLLIS M. KEATY, Judge.

Defendant/Appellant, Deanna Harbison Mason, appeals the trial court's judgment in favor of Plaintiff/Appellee, George Mason, Jr. For the following reasons, the trial court's judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

This child custody and visitation modification matter arose following the marriage and divorce of Deanna and George. They were married on January 8, 1994, and divorced on July 10, 2006. During their marriage, they produced two children: Colton W. Mason, born April 26, 1995; and Kara A. Mason, born June 19, 2000. Following their divorce, they entered into a Stipulated Judgment Of Custody which the trial court signed on November 9, 2006. Therein, they were granted joint custody of the minor children and were designated as co-domiciliary parents. Three custody modification trials subsequently ensued.

The first trial occurred on November 20, 2012, following Deanna's filing of her Rule For Contempt, For Modification And For Authority To Have Children Seen By A Counselor. Pursuant to its subsequent Judgment On Rules which was signed on July 16, 2013, the trial court awarded the parents joint custody of the minor children, designated George as Kara's domiciliary parent, and designated Deanna as Colton's domiciliary parent. Both parents were awarded reasonable visitation.

The second trial occurred on November 24, 2014, following Deanna's filing of her Rule To Modify Custody and George's filing of his Rule For Immediate Ex Parte Order Of Custody And/Or Civil Warrant For Custody Of Child. In its subsequent Judgment signed on February 18, 2015, the trial court maintained the [16-287 La.App. 3 Cir. 2] parents' joint custody of Kara and George's status as her domiciliary parent, with visitation granted in favor of Deanna and as provided for therein.1

The third trial, which is at issue in this appeal, occurred on June 3, 2015, following Deanna's filing of her Rule For Contempt And To Modify Custody on April 6, 2015, only six weeks after the previous judgment. The trial court rendered its ruling in open court and thereafter issued another written Judgment on June 14, 2015, wherein it dismissed Deanna's Rule for Contempt, denied her request for attorney fees, and denied her request for modification of custody.2 It again awarded joint custody of Kara to both parents and maintained George's status as the domiciliary parent. It further modified the previous Judgment rendered on February 18, 2015, by reverting back to the standard plan regarding the exchange of Kara, limiting Deanna's visitation to three and four-day weekends, ordering Deanna to provide George a week's written notice regarding visitation, and ordering future communication between the parents to take place through a program called Family Wizard. Deanna filed a Motion For New Trial regarding the June 3, 2015 hearing, which was denied. Deanna appealed the trial court's Judgment rendered on June 3, 2015, and signed on June 14, 2015, as well as the trial court's denial of her Motion For New Trial.

On appeal, Deanna asserts the following assignments of error: 1. The Trial Court erred in failing to admit Colton Mason's testimony.

2. The Trial Court erred in denying the proffer of Colton Mason's testimony.

[16-287 La.App. 3 Cir. 3] 3. The Trial Court's finding that the audio recording made by the mother of the child's distress while living with her father was ruled inadmissible.

4. The Trial Court erred in failing to allow testimony regarding allegations not specifically pleaded by Plaintiff-in-[R]ule.

5. The Trial Court erred in granting the Motion for Directed Verdict and Exception of No Cause of Action dismissing the modification of custody.

6. The Trial Court erred in granting the Motion for Directed Verdict and Exception of No Cause of Action dismissing the contempt of court.

7. The Trial Court erred in denying the Motion for New Trial.

8. The Trial Court erred when it failed to meet the standard of Mulkey v. Mulkey [, 12-2709 (La. 5/7/13), 118 So.3d 357,] as designated by the Louisiana Supreme Court.

9. The Trial Court erred when it modified the visitation schedule of Plaintiff-in-Rule on its own motion.

STANDARD OF REVIEW

In the absence of manifest error or unless it is clearly wrong, an appellate court may not set aside a trial court's findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court's conclusions are given substantial deference by appellate courts in child custody matters. Steinebach v. Steinebach, 07-38 (La.App. 3 Cir. 5/2/07), 957 So.2d 291. " 'The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse.'" Steinebach, 957 So.2d at 294 (quoting Deason v. Deason, 99-1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220). The Louisiana Supreme Court and the Louisiana Legislature have noted " that the primary consideration and prevailing [16-287 La.App. 3 Cir. 4] inquiry is whether the custody arrangement is in the best interest of the child." Steinebach, 957 So.2d at 294.

Additionally, the supreme court in Housley v. Cerise, 579 So.2d 973, 976 (La.1991) (quoting Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106, 1112 (La.1990)), stated that, " 'if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.'" This court in Caillier-McCorvey v. McCorvey, 05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 362, writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300, also stated, " [t]he basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts."

DISCUSSION

I. Assignments of Error No. 1 & No. 2

In her first and second assignments of error, Deanna contends that the trial court erred by failing to admit and by denying the proffer of Colton's testimony. She argues that the testimony at issue concerned Colton's deterioration of his relationship with George during his teenage years when they lived together. Deanna states that his testimony was relevant in that this deterioration was similar to the deterioration of the relationship which was occurring between Kara and George.

In Louisiana, " [a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not [16-287 La.App. 3 Cir. 5] admissible." La.Code Evid. art. 402. " Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La.Code Evid. art. 403. Additionally, actions regarding modification of child custody orders were discussed in Bergeron v. Bergeron, 492 So.2d 1193, 1195 (La.1986) (emphasis added), wherein the supreme court stated that the party requesting modification is " required to show that a change in circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody." This requirement " protects [the complainant's] adversary and the child from the vexation and expense attending...

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9 practice notes
  • 285 So.3d 7 (La.App. 3 Cir. 2019), 19-349, Joubert v. Joubert
    • United States
    • Louisiana Court of Appeals of Louisiana
    • November 13, 2019
    ...lacks evidence supporting the modification of a prior custody decree. Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519; Brantley v. Kaler, 43,418 (La.App. 2 Cir. 6/4/08), 986 So.2d 188.5 In Brantley, our colleagues of the second circuit found no e......
  • 238 So.3d 540 (La.App. 3 Cir. 2018), 17-875, Ganaway v. Ganaway
    • United States
    • Louisiana Court of Appeals of Louisiana
    • February 28, 2018
    ...argues that modification of custody does not have to be pleaded, citing to Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519, and to Miller v. Miller, 04-1355 (La.App. 3 Cir. 2005), 893 So.2d 233. However, these cases do not address a trial court’s sua ......
  • 238 So.3d 540 (La.App. 3 Cir. 2018), 17-875, Ganaway v. Ganaway
    • United States
    • Louisiana Court of Appeals of Louisiana
    • February 28, 2018
    ...argues that modification of custody does not have to be pleaded, citing to Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519, and to Miller v. Miller, 04-1355 (La.App. 3 Cir. 2005), 893 So.2d 233. However, these cases do not address a trial court’s sua ......
  • Joubert v. Joubert, 111319 LACA3, 19-349
    • United States
    • Louisiana Court of Appeals of Louisiana
    • November 13, 2019
    ...lacks evidence supporting the modification of a prior custody decree. Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519; Brantley v. Kaler, 43, 418 (La.App. 2 Cir. 6/4/08), 986 So.2d In Brantley, our colleagues of the second circuit found no error ......
  • Request a trial to view additional results
9 cases
  • 285 So.3d 7 (La.App. 3 Cir. 2019), 19-349, Joubert v. Joubert
    • United States
    • Louisiana Court of Appeals of Louisiana
    • November 13, 2019
    ...lacks evidence supporting the modification of a prior custody decree. Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519; Brantley v. Kaler, 43,418 (La.App. 2 Cir. 6/4/08), 986 So.2d 188.5 In Brantley, our colleagues of the second circuit found no e......
  • 238 So.3d 540 (La.App. 3 Cir. 2018), 17-875, Ganaway v. Ganaway
    • United States
    • Louisiana Court of Appeals of Louisiana
    • February 28, 2018
    ...argues that modification of custody does not have to be pleaded, citing to Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519, and to Miller v. Miller, 04-1355 (La.App. 3 Cir. 2005), 893 So.2d 233. However, these cases do not address a trial court’s sua ......
  • 238 So.3d 540 (La.App. 3 Cir. 2018), 17-875, Ganaway v. Ganaway
    • United States
    • Louisiana Court of Appeals of Louisiana
    • February 28, 2018
    ...argues that modification of custody does not have to be pleaded, citing to Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519, and to Miller v. Miller, 04-1355 (La.App. 3 Cir. 2005), 893 So.2d 233. However, these cases do not address a trial court’s sua ......
  • Joubert v. Joubert, 111319 LACA3, 19-349
    • United States
    • Louisiana Court of Appeals of Louisiana
    • November 13, 2019
    ...lacks evidence supporting the modification of a prior custody decree. Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203 So.3d 519; Brantley v. Kaler, 43, 418 (La.App. 2 Cir. 6/4/08), 986 So.2d In Brantley, our colleagues of the second circuit found no error ......
  • Request a trial to view additional results