Gerhardt v. Gerhardt

• Decision Date: 18 May 2011
• Docket Number: No. 46,463–CA.,46,463–CA.
• Citation: 70 So.3d 863
• Parties: Walter William GERHARDT, Plaintiff–Appelleev.Tammy Joanna Jones GERHARDT, Defendant–Appellant.
• Court: Court of Appeal of Louisiana — District of US

70 So.3d 863

Walter William GERHARDT, Plaintiff–Appellee

v.Tammy Joanna Jones GERHARDT, Defendant–Appellant.

No. 46,463–CA.

Court of Appeal of Louisiana, Second Circuit.

May 18, 2011.

Richard Lynn Ducote, Metairie, LA, for Appellant.Randall R. Robinson, Bossier City, LA, for Appellee.

Before WILLIAMS, GASKINS and LOLLEY, JJ.LOLLEY, J.

[2 Cir. 1] Tammy Joanna Jones Gerhardt, the mother, appeals the judgment by the First Judicial District, Parish of Caddo, State of Louisiana, granting sole custody of the couple's two children to Walter William Gerhardt, the father, and supervised visitation to Tammy. For the following reasons, we affirm the trial court's judgment.

Facts

Walter and Tammy were married in 1991 and had two children-one son in 1995 (“the older child”) and another son in 2000 (“the younger child”). The couple physically separated in 2009, after which a consent judgment and interim order over the custody arrangement was issued awarding Walter visitation while the children resided with Tammy.

In his petition for divorce, Walter asked for sole custody of the children until Tammy secured treatment for substance abuse, an eating disorder, and mental issues. Tammy countered by asking for joint custody of the children and claiming, among other things, that Walter is abusive physically, mentally, and emotionally.

Subsequently, Walter moved for two counts of contempt against Tammy, stating she was not allowing Walter visitation with the children as mandated by the court order. Tammy was found guilty of contempt of the court order, but sentencing was deferred upon Walter's request.

Shortly after, Walter filed a third rule for contempt against Tammy for, among other things, her failure, once again, to allow Walter to exercise his custody rights. The matter was heard by the trial court and witnesses were presented. Officer Matthew Reger of the Shreveport Police [2 Cir. 2] Department (“SPD”) testified that he was called to Walter's home over an incident where the older child claimed Walter had hit him. The officer did not make an arrest because he did not believe a crime had occurred. Walter testified that no physical altercation had occurred between his older child and himself, and that after that incident he had been deprived of seven weeks of visitation with the children. He also stated Tammy disparaged him in front of the children, also against court order. Walter Gerhardt's mother, Rosemary Gerhardt, with whom Walter resided, corroborated Walter's testimony that no physical altercation had ensued.

Tammy also testified. She admitted that Walter had not had visitation with the children; however, she claimed this was because the children refused. She stated the police report regarding the physical altercation was incorrect. She also began rambling about her religious views and admitted that she will not open any letters from Walter, his attempt at communication.

The trial court found Tammy guilty of contempt, reasoning that it found Walter to be very credible, while taking issue with Tammy's credibility, even pointing out her “strange” demeanor. The trial court then ordered Tammy to serve 15 days in jail for each of three counts of contempt, running consecutively.

Subsequently, Walter filed a fourth motion of contempt against Tammy and also requested sole custody of the younger child. The couple was then issued a judgment of divorce as the requisite time period had [2 Cir. 3] lapsed. A hearing was conducted on the fourth contempt motion and several witnesses were called to testify.

Melissa White, Tammy's former best friend, testified that Tammy's personality has changed drastically over the past three years. She said Tammy has become hyperactive, would not sleep for nights at a time, would not clean the house, would drink heavily, would exhibit paranoia, and would talk negatively about Walter in front of the children. She claims Tammy's behavior became so alarming that she, along with other friends, held an intervention. This testimony regarding Tammy's unusual change in behavior was corroborated by several other friends of Tammy's: Fred White, Sharon Partain, Amanda Phillips, and Kim Gibbs. White also testified that Tammy telephoned her and said the children reported that Walter had sexually abused them. However, she also testified that as Tammy told her this, she could hear the children in the background screaming at Tammy, “No, that's not what I said ... I said Daddy pushed me.” At the conclusion of the hearing, the contempt charge was dropped in light of an agreement made between the parties.

In this new agreement, the custody remained joint, but Walter was designated as the domiciliary parent and Tammy was to have visitation on weekends. Tammy would pay the note and insurance for her vehicle as well as receive child support payments. Interim spousal support concluded. Additional requirements were placed on each parent when he or she was in custody of the children as well. They were ordered not to consume alcohol; [2 Cir. 4] to provide adequate supervision; not to have overnight visitors; to supervise the older child after 6:00 p.m.; and not to leave the children alone together. Also, Tammy agreed to allow the older child to go to a treatment facility in Tennessee that was chosen by Walter.

Walter subsequently filed a fifth motion for contempt against Tammy. This time, Walter requested Tammy not only be found in contempt of the court order, but also that her visitation with the children be immediately suspended after he learned of a driving incident, in which Tammy, while driving the younger son, ran her vehicle off the road into a ditch. Tammy and the son were found the next morning, still in the vehicle. The older son had been left alone at home the entire night. Walter also claimed Tammy had fallen delinquent on the financial obligations she agreed to pay pursuant to the court order, which he had to pay for her.

In opposition, Tammy prayed for sole custody of the children, supervised visitation by Walter, and the appointment of an attorney to represent the children in the matter. She claimed Walter abused the children both physically and sexually and that the treatment facility Walter chose to send the older child to was actually a “bogus facility operated by the discredited cult ‘Church of Scientology.’ ” Tammy also claimed she did not freely consent to the previous custody agreement as it was induced by fraud, and, therefore, could not be in contempt of breaching it. Pending a hearing on the matter the trial court suspended Tammy's visitation with the younger child and issued her restricted and supervised visitation with the older child.

[2 Cir. 5] A hearing was held and witnesses were called. Corporal R.J. Herkey of the SPD testified that he responded to the scene when Tammy was found in her vehicle on the side of the road at 8:00 a.m. He stated the incident did not appear to have been alcohol-related. Detective Jeff Holiday of the SPD testified that he investigated the abuse claims and did not have enough evidence to make an arrest.

Walter testified that Tammy has not been paying her car note or insurance, and that Tammy did not move out of the family home when ordered by the court to do so. He stated Tammy had violated the custody agreement by leaving the older son alone after 6:00 p.m. as well as consuming alcohol. He also said he stands by his decision to send his older child to the rehabilitation treatment center in Tennessee and that he has never abused the children.

Tammy testified that the children reported to her that Walter had sexually abused them. She also testified to the medications she takes: Adderall; hypoglycemia medication; hydrocodone; Lortab; and Topamax. She testified that she knows the incident in the vehicle was dangerous, but the reason it occurred was because she had consumed wheat to which she is allergic and drunk wine which can create problems with her hypoglycemia. She rambled off topic several times during her testimony. She also claimed her own father, the children's grandfather, and an unknown person had previously abused the older child, as well.

The older child testified that Walter has both physically and sexually abused him and that he wants nothing to do with Walter, but that he loves [2 Cir. 6] his mother. He said the rehabilitation center to which his father sent him was a very bad experience and did not help him at all. He testified that he was the only child among several “crazy” adult patients and that he was forced to run and sit in saunas for hours, as well as read books on Scientology.

Drs. Ann Springer and Deborah Brown testified that the children had reported to them they had been abused by Walter physically and sexually, and they had no reason to believe this was untrue or coached. Tammy's doctor, Dr. Ricky Jones, testified that Tammy is hypoglycemic and that alcohol can exacerbate the condition.

After articulating a thorough reasoning for the judgment, the trial court found for Walter, rejecting the evidence purporting to prove abuse, and awarded Walter sole custody of the children while allowing Tammy supervised visitation. This custody arrangement was set up to be modified in the future if Tammy showed signs of improvement so she could eventually have more visitation with her sons and then go back to a joint custody arrangement. The court also found Tammy guilty of three counts of contempt for failing to pay car insurance and car mortgage payments, leaving the younger child unsupervised, and drinking in the presence of the children against court orders. Tammy was remanded into custody until she reimbursed Walter for the amount he paid toward her financial obligations and submitted to a drug test. Tammy now appeals this judgment.

[2 Cir. 7] Law and Discussion

On appeal Tammy asserts four assignments of error. First, she asserts the trial court erred by granting Walter sole custody when he had not sought such a custody...