Mason v. Mason
| Decision Date | 05 October 2016 |
| Docket Number | 16-287 |
| Citation | 203 So.3d 519 |
| Parties | George Mason, Jr. v. Deanna Harbison Mason |
| Court | Court of Appeal of Louisiana — District of US |
Charles A. "Sam" Jones, III, Attorney at Law, Post Office Box 995, DeRidder, Louisiana 70634, (337) 463-5532, Counsel for Plaintiff/Appellee: George Mason, Jr.
Wes Bailey, Attorney at Law, 109 South Third Street, Leesville, Louisiana 71446, (337) 404-7716, Counsel for Defendant/Appellant: Deanna Harbison Mason
Mary K. Beaird, Attorney at Law, 109 South Third Street, Leesville, Louisiana 71446, (337) 944-0299, Court-Appointed Counsel for Minor Child
Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
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.
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 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:
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 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 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."
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, 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 multiple unjustified lawsuits, conserves judicial resources, and fosters reliance on judicial actions by minimizing the possibility of inconsistent decisions." Id.
The transcript of the hearing shows that the trial court initially allowed Colton's direct testimony that he had not called his father nor maintained a relationship with him since December 1, 2014. The transcript reveals that the trial court thereafter stopped Deanna's counsel's questions regarding their relationship by stating that, "[i]t has nothing to do with [Kara's] relationship, it has nothing to do with any advantage that she may be—by residing in the State of Texas with her mother, her step-father and her brother [.]" The transcript indicates that the trial court allowed Colton's proffered testimony regarding his relationship with his father, which included his testimony that he did not "want to have a relationship with [George] because of what happened in the past[ ]" when they lived together. Deanna's counsel then asked Colton, "[W]hat happened to you when you were in your father's care?" Opposing counsel objected by stating, "that's going way back[ ]" to incidents occurring "before 2010 or in that period of time." The trial court thereafter would not allow proffered testimony on incidents occurring prior to 2010, which pre-dated all three custody hearings, by stating:
I'm not going to allow you to even proffer it .... [T]he fact is that there was a hearing in this matter in November and there's been other hearings and then you're wanting to bring something up prior to even all those hearings in this hearing. I don't know why that even needs to be proffered at this time.
The trial court did not err in limiting the proffered testimony to events occurring after 2010.
Deanna further cites La.Code Civ.P. art. 1636(A) (emphasis added), which provides: "When the court rules against the...
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