916 So.2d 357 (La.App. 3 Cir. 2005), 05-174, McCorvey v. McCorvey

Docket Nº:05-174.
Citation:916 So.2d 357, 2005-174 La.App. 3 Cir. 11/2/05
Party Name:Shaunn Caillier McCORVEY v. Derriel Carlton McCORVEY.
Case Date:November 02, 2005
Court:Court of Appeals of Louisiana

Page 357

916 So.2d 357 (La.App. 3 Cir. 2005)

2005-174 La.App. 3 Cir. 11/2/05

Shaunn Caillier McCORVEY

v.

Derriel Carlton McCORVEY.

No. 05-174.

Court of Appeals of Louisiana, Third Circuit

Nov. 2, 2005

Page 358

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Alex L. Andrus, III, Andrus & Doherty, Opelousas, LA, for Plaintiff/Appellee--Shaunn Caillier McCorvey.

Glenn James Labbe, Lafayette, LA, for Defendant/Appellant--Derriel Carlton McCorvey.

Derriel Carlton, McCorvey The Law Office of Derriel C. McCorvey, L.L.C., Lafayette, LA, pro se.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.

THIBODEAUX, Chief Judge.

In this child custody case, the Defendant, Derriel McCorvey, appeals from a judgment of the trial court which denied his Motion for Change of Venue, denied his Motion to Strike and for Sanctions, denied his Motion to Expand Parental Custody, and which granted the Plaintiff's Motion and Order for Contempt and to Restrict Inappropriate Activities in the Presence of the Minor Child and to Restrict Visitation. For the reasons set forth below, we affirm the well-reasoned judgment of the trial court.

I.

ISSUES

The issues to be determined are:

1) whether the trial court abused its discretion in denying Defendant's Motion for Change of Venue;

2) whether the trial court abused its discretion in finding Defendant in contempt of court;

3) whether the trial court abused its discretion in denying Defendant's Motion to Strike Language from Plaintiff's Motion; and,

4) whether the trial court abused its discretion in restricting Defendant's visitation and in denying Defendant's Motion to Expand Parental Custody.

II.

FACTS

Plaintiff, Shaunn Caillier-McCorvey, filed a Petition for Divorce and Incidental Relief in St. Landry Parish against Defendant, Derriel McCorvey, on grounds of adultery on June 24, 2002, one year after the birth of their daughter, Darian Z. McCorvey, born on June 25, 2001. Plaintiff asked for sole custody of the minor child and, in the alternative, joint custody, use of the family home in Opelousas, and a judicial partition of community property in due course. The judgment of divorce was rendered on November 12, 2002. Joint custody was awarded to both parties with domiciliary custody awarded to the mother, Shaunn Caillier-McCorvey.

Both parties are practicing attorneys, and the record contains four volumes of documents, five bound volumes of exhibits including the records of two previous appeals, as well as large envelopes of exhibits, indicating a contentious divorce, and property and custody battles between the parties. At some time during these proceedings, Defendant Derriel McCorvey married Kia Harden, and Plaintiff Shaunn Caillier-McCorvey married Kia Harden's former spouse, Michael Harden. 1 The Hardens

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had three children, who became the step-children of both parties herein. The three Harden children are primarily domiciled with their mother and the Defendant, wherein Kia Harden McCorvey is their domiciliary parent.

On June 3, 2003, having already issued verbal orders in chambers regarding racial slurs in the presence of the child, Judge James T. Genovese rendered a written Judgment on Child Custody/Visitation ordering the parties to avoid racial comments or slurs regarding the child or the child's effects.

On February 23, 2004, Judge Genovese issued an order finding Defendant in contempt for willful disobedience of a preliminary injunction regarding distribution of community funds. He was sentenced to pay a fine and serve fifteen days in the St. Landry Parish jail (suspended under one-year probation).

On May 3, 2004, Ms. McCorvey filed a Motion for Contempt, to Restrict Inappropriate Activities in the Presence of the Minor Child and to Restrict Visitation. Her contempt motion was based upon Mr. McCorvey's alleged violation of the above-referenced June 3, 2003 written order of Judge Genovese, as well as his previous verbal orders in chambers, to avoid racial, ethnic, or prejudicial comments or slurs. Plaintiff also sought a judgment ordering Defendant to refrain from intentionally and willfully exposing the minor child to music which contains sexually explicit lyrics and to restrict the Defendant's visitation with the minor child. Judge Aaron Frank McGee granted Plaintiff's Motion for Contempt but deferred penalties and reduced Defendant's visitation in a judgment dated September 9, 2004.

On May 20, 2004, Defendant filed a Motion and Order to Decrease Child Support 2 and to Expand Parental Custody. He also filed a Motion and Order to Strike and for Sanctions against Plaintiff and her attorney, arguing that they had included scandalous, indecent, and profane language in the pleadings and had attached "naked" photographs as exhibits. Judge McGee denied Defendant's Motions and restricted rather than expanded visitation, pursuant to his September 9, 2004 judgment.

After the recusal of two trial court judges, and an attempt to recuse a third, Mr. McCorvey filed a Motion for Change of Venue. Judge McGee heard the Motion for Change of Venue along with the above motions in June 2004, denying the venue motion from the bench. Judge McGee did not include the venue ruling in his written judgment of September 9, 2004, but the venue motion is deemed denied and addressed herein. 3 It is from the above rulings of Judge McGee that this appeal is brought by Defendant, Derriel McCorvey.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two

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tiered test must be applied in order to reverse the findings of the trial court:

1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder's, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The 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.

Change of Venue

Mr. McCorvey, an attorney representing himself on this issue, contends that the trial court erred in denying his Motion for Change of Venue under La.Code Civ.P. art. 122, which provides as follows:

Art. 122. Change of proper venue

Any party by contradictory motion may obtain a change of venue upon proof that he cannot obtain a fair and impartial trial because of the undue influence of an adverse party, prejudice existing in the public mind, or some other sufficient cause. If the motion is granted, the action shall be transferred to a parish wherein no party is domiciled.

Mr. McCorvey argues that his former wife, the Plaintiff herein, Ms. McCorvey, now Harden, is an attorney in St. Landry Parish and that this fact will prevent him from obtaining a fair result in that parish. However, he fails to offer evidence of any unfair dealings as a result of her employment. Instead, Mr. McCorvey complains that two of the four judges of the Twenty-Seventh Judicial District Court and one hearing officer have been removed from hearing matters in this proceeding due to conflicts or potential conflicts with witnesses, parties, or attorneys in the case. As support for his argument that he is being denied impartial proceedings, he offers details of the various recusals of the judges and hearing officer.

More specifically, Judge Alonzo Harris recused himself on July 3, 2002 because he had consulted with the parties on their prenuptial agreement and was expected to be called to testify regarding same. Judge James T. Genovese recused himself to avoid the appearance of impropriety because his campaign manager had performed some work for Ms. McCorvey. Mr. McCorvey sought removal of Hearing Officer Otis Lomenick due to a remark allegedly made by Mr. Lomenick during an unrelated conference and subsequently reported to Defendant. The alleged remark was, "I just can't stand him." While the hearing officer was not officially or formally recused, it was determined that all proceedings in this matter would by-pass him. 4 Accordingly, rather than providing

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evidentiary support for a change of venue, the recusals tend to support a position that any potential bias has indeed been removed, and further indicate that everything is being done to ensure that Mr. McCorvey receives fair and impartial proceedings in his case.

Ms. McCorvey argues that the assignment of error on venue should be deemed abandoned where Defendant failed to brief the issue pursuant to Uniform Rules, Court of Appeal Rule 2-12-4. This rule provides in pertinent part that Defendant's brief must contain an argument confined strictly to the issues of the...

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14 practice notes
  • 922 So.2d 694 (La.App. 3 Cir. 2006), 05-889, McCorvey v. McCorvey
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 1 Febrero 2006
    ...parental custody. However, the issue of McCorvey's parental custody was decided in McCorvey v. McCorvey, 05-174 (La.App. 3 Cir. 11/2/05), 916 So.2d 357. The current judgment appealed from does not address the child custody issue, nor shall we revisit it. Partition of Community Property McCo......
  • 922 So.2d 694 (La.App. 3 Cir. 2006), 05-889, McCorvey v. McCorvey
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 1 Febrero 2006
    ...parental custody. However, the issue of McCorvey's parental custody was decided in McCorvey v. McCorvey, 05-174 (La.App. 3 Cir. 11/2/05), 916 So.2d 357. The current judgment appealed from does not address the child custody issue, nor shall we revisit it. Partition of Community Property McCo......
  • 285 So.3d 7 (La.App. 3 Cir. 2019), 19-349, Joubert v. Joubert
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 13 Noviembre 2019
    ...and appellate functions between the respective courts." 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. Absent legal error, appellate courts must "review the record in its e......
  • 203 So.3d 519 (La.App. 3 Cir. 2016), 16-287, Mason v. Mason
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 5 Octubre 2016
    ...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 grounde......
  • Free signup to view additional results
14 cases
  • 922 So.2d 694 (La.App. 3 Cir. 2006), 05-889, McCorvey v. McCorvey
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 1 Febrero 2006
    ...parental custody. However, the issue of McCorvey's parental custody was decided in McCorvey v. McCorvey, 05-174 (La.App. 3 Cir. 11/2/05), 916 So.2d 357. The current judgment appealed from does not address the child custody issue, nor shall we revisit it. Partition of Community Property McCo......
  • 922 So.2d 694 (La.App. 3 Cir. 2006), 05-889, McCorvey v. McCorvey
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 1 Febrero 2006
    ...parental custody. However, the issue of McCorvey's parental custody was decided in McCorvey v. McCorvey, 05-174 (La.App. 3 Cir. 11/2/05), 916 So.2d 357. The current judgment appealed from does not address the child custody issue, nor shall we revisit it. Partition of Community Property McCo......
  • 285 So.3d 7 (La.App. 3 Cir. 2019), 19-349, Joubert v. Joubert
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 13 Noviembre 2019
    ...and appellate functions between the respective courts." 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. Absent legal error, appellate courts must "review the record in its e......
  • 203 So.3d 519 (La.App. 3 Cir. 2016), 16-287, Mason v. Mason
    • United States
    • Louisiana Court of Appeals of Louisiana
    • 5 Octubre 2016
    ...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 grounde......
  • Free signup to view additional results