Harrel v. Harrel

• Decision Date: 27 June 2018
• Docket Number: No. 52,248–CA,52,248–CA
• Citation: 251 So.3d 546
• Parties: Elizabeth Mary Toups HARREL, Plaintiff–Appellee v. Jason Carr HARREL, Defendant–Appellant
• Court: Court of Appeal of Louisiana — District of US

251 So.3d 546

Elizabeth Mary Toups HARREL, Plaintiff–Appellee

v.Jason Carr HARREL, Defendant–Appellant

No. 52,248–CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 27, 2018

BOOTH, LOCKARD, POLITZ, & LeSAGE, L.L.C. By: Nyle A. Politz, Shreveport, Counsel for Appellant

BOWERS LAW FIRM, LLC By: Gary A. Bowers, Shreveport, Counsel for Appellee

Before BROWN, MOORE, and COX, JJ.

BROWN, C.J.

The father has appealed from a trial court judgment declining to modify a May 2013 consent judgment based upon the court's finding that the father failed to prove a material change in circumstances warranting a change in the custody arrangement set forth in the parties' consent judgment. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

The parties to this appeal are former spouses. They were married on November 25, 2004, separated on October 20, 2012, and divorced by judgment rendered December 16, 2013. The parties have three minor children. By a consent judgment entered on May 14, 2013, the parties were awarded joint custody, with the mother being named domiciliary parent and the father being given "reasonable visitation" of alternating weekends, every Thursday evening for three hours, eight hours on Father's Day, and all holidays to be agreed upon by the parties. Also in this judgment, the parties "waived the necessity of a Joint Custody Implementation Plan (‘JCIP’) and find same to be in the children's best interest, but reserve their right to have one set in the event that either [parent] desires same, without having to prove a change in circumstances." The mother was represented by counsel at the time of the parties' agreement, while the father appeared in proper person.

On June 24, 2015, the father filed a Petition for Rule Nisi for Entry of Shared Time Joint Custody Implementation Plan and to Modify Support, which was set for hearing on August 31, 2015.¹ At this hearing, the mother sought and was granted the appointment of an La. R.S. 9:331 mental health professional, whose report and recommendation were issued on March 28, 2016. On April 13, 2016, the mother filed a Motion for Authorization to Conduct Independent Psychiatric Evaluation of the father pursuant to La. C.C.P. art. 1464. The trial court granted this request on April 28, 2016, and signed an order to that effect on May 16, 2016. The physician initially appointed, Richard Williams, was seriously injured in an accident in August 2016 and died in October 2016 before beginning the evaluation. The mother filed a Motion and Order to Substitute Psychologist Sally Thigpen on November 3, 2016, and this order was granted. Dr. Thigpen issued her 39–page report on January 30, 2017.

The trial, which consisted of ten nonconsecutive days held over the course of approximately three and one-half months, concluded on June 2, 2017. The trial court found that the father failed to prove a material change in circumstances warranting a change in the custody arrangement as set forth in the May 2013 consent judgment or that such a modification was in the best interest of the parties' children and declined to modify the consent judgment. The trial court issued its oral reasons on September 26, 2017. A written judgment and a Judgment Appointing a Parenting Coordinator were signed on October 31, 2017, the same date that the JCIP was implemented. The father has appealed.²

DISCUSSION

On appeal, the father has raised three assignments of error. Specifically, he argues that the trial court erred in: (1) requiring him to prove a change in circumstances in order to have a JCIP set; (2) failing to enter a JCIP that allowed the father substantial time with the children; and, (3) finding that the examination of him by Dr. Sally Thigpen pursuant to La. C.C.P. art. 1464 was an evaluation of "the parties."

The mother urges this Court to affirm the judgment of the trial court. The mother points out that: (1) the father did not seek implementation of a JCIP consistent with the agreed-upon custodial arrangement set forth in the parties' May 2013 consent judgment, but instead requested a substantial increase in his custodial time far beyond that contemplated by the parties in their May 2013 consent judgment; (2) the father failed to prove his entitlement to an equally shared custody arrangement, i.e., he failed to demonstrate that there has been a material change in circumstances since the May 2013 consent judgment warranting such an increase (or that said change was in the best interest of the children); and, (3) the trial judge weighed and evaluated the testimony and evidence of the mental health experts, and the record supports the judge's determinations regarding the weight to be given to the expert testimony in this case.

Because it is more logical to do so, we will address the third assignment of error first.

Expert Testimony

Questions of credibility and the weight to be given to expert testimony are to be resolved by the trier of fact. Lasyone v. Kansas City Southern Railroad, 00-2628 (La. 4/3/01), 786 So.2d 682; Williams v. Board of Supervisors of University of Louisiana System , 48,763 (La. App. 2d Cir. 2/26/14), 135 So.3d 804, writ denied , 14-0666 (La. 5/2/14), 138 So.3d 1249. The weight to be given to expert testimony depends on the facts on which it is based as well as the professional qualifications and expertise of the expert. Meany v. Meany , 94-0251 (La. 7/5/94), 639 So.2d 229 ; Fuqua v. Fuqua , 46,118 (La. App. 2d Cir. 1/26/11), 57 So.3d 534. A fact-finder may accept or reject the opinions expressed by an expert, in whole or in part. Green v. K–Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838 ; Davis v. Foremost Dairies, 45,835 (La. App. 2d Cir. 2/16/11), 58 So.3d 977, writs denied, 11–0568, 11-0538 (La. 4/25/11), 62 So.3d 97, 98.

The following is excerpted from the trial court's oral reasons for judgment:

The Court heard the sworn testimony and was able to make credibility determinations based upon the testimony and the Court's personal observation of the witnesses as they testified.... Based upon the testimony, the exhibits, and the Court's credibility determinations, review of the facts, the Court's insight is as follows ...

The Court first focused on the testimony of the Court-appointed expert, Dr. Mark Vigen. Dr. Vigen was appointed as the Court's expert[;] however, there was a report rendered from Dr. Vigen and Dr. Lobrano ... on March 28, 2016. Of concern to the Court was the testimony from Dr. Vigen when he ultimately acknowledged the deficiencies in the entire process of composing the report. He testified standard operation and procedure would have been for them to request the medical records for [the father]. He said, "If we had to do it over, we would have requested his medical records to review before generating the report."

Dr. Vigen and Dr. Lobrano in their testimony admitted that they reviewed the medical records of [the father] after the report had been rendered.... Dr. Lobrano testified, quote, "I wish we had done a more thorough exploration of his psychiatric history. I believe we could have done a better job with that." ...

Dr. Sally Thigpen, on the other hand, reviewed the records of three of the psychiatrists ... and the therapist Ms. Rebecca Warren. She also performed psychological testing on [the father] and reviewed depositions that had previously been taken in the case. Again, Dr. Thigpen rendered a 39–page opinion, an assessment of the parties.³

The Court again reviewed those medical records and opined that the doctors and therapists who provided treatment to [the father] all rendered recommendations to him on how to manage and cope with his generalized anxiety disorder. However, in those medical records there wasn't a consistent routine on who was prescribing what medication and whether [the father's] mental stability was being managed at the time in light of all that was going on in his life in terms of the divorce, the separation, his time with the children, et cetera. It was clear from evidence that was submitted that this process was having an [e]ffect on his mental stability. The fights with [the mother], the text messages, the email exchange echo the Court's assessments....

The record does not show an abuse of the trial court's discretion in this case. The trial court did not base its conclusions and findings of fact solely upon the testimony of Dr. Thigpen, but instead, as the judge specifically noted in her reasons for judgment, she took into consideration all of the evidence, including the testimony of the parties, as well as the medical records and recommendations of all mental health professionals involved. This assignment of error is without merit.

Custody/Visitation

There is no merit to the father's first assigned error, which is that the trial court erred in requiring him to prove a change in circumstances to have a JCIP established.

It is undisputed that there was no JCIP at the time of the parties' consent agreement in May 2013. This, however, was done per the parties' agreement at that time. Regarding the father's periods of physical custody of the parties' children, the May 2013 consent judgment did not set any specified visitation during holidays (except for Father's Day) or summer vacations, but provided that "all holidays [were to] be agreed upon by the parties." As the record shows, the parties, having attempted for several years to fashion their own schedule for the non-specified holidays and summer months, were unable to do so without significant conflict and stress. By its terms, the May 2013 consent judgment necessarily envisioned that the father's periods of physical custody with the children would be more than the specifically provided for two nights every other weekend, three hours one night per week, and eight hours on Father's Day.

By providing that a JCIP would be set upon either party's request, which, as noted above, would contain the specified visitation periods from the May 2013 consent...