Bailey v. Bailey

• Decision Date: 11 March 2020
• Docket Number: 19-644
• Citation: 297 So.3d 58
• Parties: Charles Neil BAILEY v. Tara Melanie BAILEY
• Court: Court of Appeal of Louisiana — District of US

297 So.3d 58

Charles Neil BAILEY

v.Tara Melanie BAILEY

19-644

Court of Appeal of Louisiana, Third Circuit.

March 11, 2020

Lisa Nelson, Williams & Nelson, 202 West North Street, Leesville, Louisiana 71446, (337) 238-4704, Counsel for Plaintiff/Appellant: Charles Neil Bailey

Charles Sam Jones, Attorney at Law, Post Office Box 995, DeRidder, Louisiana 70634, (337) 463-5532, Counsel for Defendant/Appellee: Tara Melanie Bailey

Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and John E. Conery, Judges.

KEATY, Judge.

Divorced father appeals from a judgment rendered in this child custody and support matter that arose out of his contested divorce proceeding. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The following history was provided in the Appellant Brief filed by Charles Neil Bailey (Chuck).¹ In her Appellee Brief, Tara Melanie Bailey (Tara), does not dispute that history, except to add information regarding Chuck's having been represented by five different attorneys within the course of this proceeding.

This matter stems from a contested divorce proceeding initiated by the filing of petitions by both parties. The parties were married on November 25, 2006 in Las Vegas, Nevada but resided together as husband and wife in Leesville, La. They have one child born of the marriage, L.E.B.,^[2] born January 5, 2009. [Tara] has a child Z.R.B,^[3] born July 21, 2001, from a previous relationship, that lived with the parties since their relationship began and who has maintained a close and loving relationship with [Chuck]. The parties physically separated on or about January 30, 2015 and except for periods when [Chuck] was unavailable due to work, have mostly shared physical custody of the child on an alternating weekly basis from the time of their separation. [Chuck] has also had significant visitation with Z.R.B. The initial petition for divorce was filed by [Chuck] on March 9, 2015. Appellant sought the joint and shared custody of the minor child, L.E.B. as well as visitation with Z.R.B. Appellant alleged that the parties had agreed to this arrangement and that no child support would be paid by either party. Appellant also sought restraining orders and use orders. An initial Rule date was fixed for April 20, 2015. However on Ma[r]ch 3, 2015 in a suit entitled and captioned "TARA MELANIE BAILEY V CHARLES N BAILEY", DOCKET #90838B, [Tara] had filed for a Protective Order. [T]hese two cases were consolidated under docket #90857 and all matters assigned to Division A.

... Appellee filed an Answer and Reconventional Demand seeking joint custody with Appellee being designated as the primary custodial parent, as well as restraining orders and use orders. These matters were also fixed for April 20, 2015.

Appellant filed his Answer to Appellee's Reconventional Demand ... and a First Supplemental and Amending Petition for Divorce.... The Amendment changed his request for custody to show he was now seeking joint custody with Appellant being designated as the primary custodial parent.

On April 20, 2015, the parties entered into a stipulated partial judgement which addressed injunctive relief, use of property and rental reimbursement but did not address custody or visitation, effectively leaving the parties to continue sharing L.E.B. on the alternating weekly basis.

....

Appellee answered Appellants First and Second Amending and Supplemental Petitions and filed her First Amending Reconventional Demand.... Said Amendment alleged that Appellant, [Chuck], was physically abusive to Appellee during the parties marriage, again seeking primary custody of L.E.B, seeking additional injunctive relief, use of the home, interim spousal support, child support, rental value of a home as well as a divorce under Article 103(4) & (5) due to alleged abuse. Hearing was fixed [but later] continued at Appellee's request[.]

... Appellant answered Appellee's First Amending Reconventional Demand and then filed a Third Supplemental and Amending Petition for Divorce seeking sole custody of L.E.B or alternatively joint with Appellant being designated domiciliary parent and seeking visitation with Z.R.B.

Appellant filed a Motion for Psychological evaluations on December 1, 2015[, and] again requested Psychological Evaluations in the Motion for Continuance he filed[.] The Order appointing Dr. John Simoneaux to conduct a mental health evaluation regarding custody/visitation was signed on December 8, 2015 and hearing was continued without date pending the evaluations.

Appellee then filed a Rule for Contempt ... alleging [Chuck] had violated the inunctions prohibiting the parties from bothering or harassing each other because of posts he made on social media between May and December 2015, had admitted to abuse of her, and was using Z.R.B. to gather information against her for court and requesting that Appellant's visitation with L.E.B. and Z.R.B. be limited to overnight and supervised. Appellee attached several exhibits to her Rule and an Ex Parte Order restricting Appellee's visitation was issued. Hearing was fixed for March 28, 2016. Appellant immediately filed a Motion to Vacate the Ex Parte restriction of his visitation and the order was rescinded by the Court. The matter was continued in open court and ... eventually continued without date.

Appellee filed a Rule for Final Divorce on July 26, 2016. A hearing was fixed for September 12, 2016 and the parties were divorced on that date.^[4]

The parties saw Dr. John Simoneaux on May 31, 2016 (Chuck) and June 16, 2016 (Tara) and his reports were issued in June and July 2016.... Appellee filed a Motion to refix the remaining matters for trial.... A Status Conference was then ordered for November 28, 2017, and the custody matters re-fixed for January 16, 2018. That hearing was rescheduled at Appellant[']s request. On January 11, 2018 the parties in a status conference with the Judge, fixed all matters for April 5, 2018 and temporarily agreed to a joint custody for the parties with [Tara], being temporarily designated domiciliary parent of L.E.B., with the reasonable visitation to [Chuck].

[Seven] days before the scheduled contested hearing, Appellant's attorney, E. GREY TALLEY, filed a Motion to withdraw. Said Motion was denied by the court. Appellant was notified by E. GREY TALLEY of her intent to withdraw by the Motion she filed ... and began to seek other counsel. [Two] days before the schedule[d] hearing, attorney WESLEY R. BAILEY, enrolled as counsel for Appellant and requested a continuance. A continuance was granted, ... leaving Appellant[']s counsel 13 days to prepare to try a contested case that had been pending for 3 years.

Day 1 of testimony was held on April 16, 2018 with a second day scheduled for May 8, 2018.

At the conclusion of the second day of trial, the court ordered memorandum of law and child support worksheets from the parties, then took the matter under advisement.

The Court issued Written Reasons on July 25, 2018. A Judgement was signed on August 17, 2018 awarding the parties joint custody of the minor child, with [Tara], being designated the domiciliary parent and [Chuck], having specific rights of visitation on an alternating weekly basis; ordering [Chuck], to pay child support in the amount of $325 per month; finding [Chuck] to be in arrearage of his child support obligation and rendering a judgement against him and in favor of [Tara], in the amount of $14,716.40, to be repaid in the minimum amount of $150 per month; holding [Chuck] in contempt of court for postings on Facebook and ordering him to pay court costs and attorney fees in the amount of $500. The Judgement was mailed by the Clerk of Court on August 27, 2018. [Chuck] filed a timely Motion for New Trial.... Said Motion was ... heard on December 6, 2018. While the motion for new trial was pending, [Tara] applied for services with the Louisiana Department of Social Services for enforcement and collection of the child support order and arrearages. An enforcement order was filed under Docket # R-10339-2018 on September 7, 2018 CS Order and signed by the Honorable C. Anthony Eaves on September 13, 2018, designating DSS as the payee for the child support obligation and transferring jurisdiction over the child support order to the 30th JDC Juvenile court for subsequent enforcement and modification. [Tara], filed 2 rules for Contempt of Court against [Chuck], alleging his failure to pay child support during the pendency of the Motion for New Trial, and his failure to pay attorney fees ordered in the contempt judgement. Those rules were also fixed for hearing on December 6, 2018. On December 6, 2018, the Court denied Appellant[']s Motion for New trail [sic] and requested Memoranda from counsel on issues raised at the hearing. A collection action by Support Enforcement was also heard on December 14, 2018. Appellant filed a Memorandum and Appellee requested the matters be dismissed.

Chuck timely appealed and is now before this court asserting that the trial court erred, as a matter of law and fact: 1) in granting domiciliary status to Tara; 2) in calculating child support; 3) in holding him in contempt of court; 4) in failing to allow him visitation with Zachary; and 5) by denying his Motion for New Trial.

DISCUSSION

A trial court's ruling in a child custody case is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Guidry v. Guidry, 07-1272 (La.App. 3 Cir. 3/5/08), 979 So.2d 603. To the extent that its ruling is based on factual determinations, an appellate court reviews these findings for manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Lemoine v. Lemoine , 09-861, p. 2 (La.App. 3 Cir. 12/16/09), 27 So.3d 1062, 1063. "The trial court is in the best position to evaluate the testimony and credibility of witnesses in a custody matter." Gregory v. Gregory , 11-1263, p. 2 (La.App. 3 Cir. 3/7/12) (unpublished opinion).

Designation of Tara as Domiciliary Parent of Loryn

"In a...