House v. House
| Decision Date | 26 May 2021 |
| Docket Number | CA 20-355 |
| Citation | 318 So.3d 386 (Mem) |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Kali W. HOUSE v. Richard HOUSE |
The majority concedes that "the trial court did not make an explicit finding that Richard proved a material change in circumstances sufficient to alter a change in the custody plan" but maintains the trial court's ruling "reflects an implied finding" that Richard's relocation by the military to Hawaii establishes a material change in circumstances. But nowhere in the jurisprudence do I find support for an implied finding being a sufficient basis for the trial court to proceed to the second step in the process, the determination of the best interest of the child. The majority cites this court's decision in Joubert but does not adhere to its precepts. In Joubert we clearly held that:
Should the party urging a change of the physical custody allocation of a joint custody plan fail to show a material change in circumstances, the inquiry ends, and there is no basis for altering the consent judgment. Lunney v. Lunney , 11-1891 (La.App. 1 Cir. 2/10/12), 91 So.3d 350, writ denied , 12-610 (La. 4/4/12), 85 So.3d 130.
Joubert v. Joubert , 19-349, pgs. 5-6, (La. App. 3 Cir. 11/13/19), 285 So. 3d 7, 12–13 (emphasis added). See also Delhoste v. Delhoste , 16-983 (La.App. 3 Cir. 5/22/17), 222 So. 3d 136 and cases cited therein. The father's move to Hawaii certainly presents visitation issues but it provides no basis for changing the agreed-upon domiciliary custody arrangement designating Kali as the domiciliary parent. Richard does not establish a basis for the trial court or this court to change the existing decree.
The record reflects the trial court did not find that Richard proved a material change in circumstances sufficient to alter a change in the custody plan . Nevertheless, without making such finding, the trial court proceeded to address the best interest of the child. It was error for the trial court to proceed with a determination of the best interest of the child. Thus, the inquiry should have stopped there. Even if it were proper to proceed with a best interest of the child analysis, I believe the record does not support a change of domiciliary custody. Because the trial court legally erred in proceeding to the determination of best interest of the child before establishing the first prong of the test we must review the matter de novo .
[W]hen a trial court applies incorrect legal principles and these errors materially affect the outcome of a case and deprive a party of substantial rights, legal error occurs. Evans v. Lungrin , 97-541, 97-577 (La. 2/6/98), 708 So.2d 731. "[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence." Id. at 735.
This child is only two and a half years old, and for the first year of her life she bonded only with her mother because her father was unavailable for most of the first twelve months of her life. The primary basis alleged by Richard to establish a change of circumstances was one instance of alleged abuse by the mother's husband at the time, Mr. Cauble. The majority maintains that "the trial court [ ] found that Kali's husband, Mr. Cauble, abused Rowan, and yet Kali continued living with Mr. Cauble." The record does not support this statement. Richard testified at the hearing he no longer believes Cauble abused the child .
Unable to establish any abuse by Cauble, Richard testified he now thinks it is Kali who abused their child despite his contradictory testimony that he personally has never seen Kali spank Rowan or act aggressively toward her. There is no medical evidence to support either of Richard's accusations and in fact, the only medical evidence presented says there are no indications of any emotional or physical abuse of Rowan. The majority agrees that the trial court was correct in finding that Kali did not abuse her child.
Additionally, Kali filed for a divorce from her second husband and she testified the divorce was in progress at the time of the hearing awaiting expiration of the legal time delay before a judgment of divorce can be awarded. Kali testified that when she realized her then husband may well have physically abused the child on one occasion, she separated from him, subsequently filed for divorce, and no longer has any contact with him.
Richard also alleges Kali continued to see Cauble after filing for divorce from him but in his ex parte petition for custody he states as a basis for his petition that Kali's home environment is unstable because she was divorcing Cauble and is no longer in a stable environment. Richard cannot have it both ways. In short, there was simply no evidentiary basis for the trial court to find that Cauble abused the child and the majority's effort to breathe life into this assertion is clear error.
Further, the trial court's findings and rulings are internally inconsistent. Although the trial court indicates it found the testimony of Cyla Hall (Hall) and Makayla Clayton (Clayton) credible, it found Rowan was not physically abused or neglected by Kali and permitted her to have unsupervised visitation with Rowan henceforth. Moreover, it further provided Kali shall enjoy full physical custody of Rowan in the event Richard is reassigned to a post where he cannot bring his children. The inclusion of that provision in the trial court's order speaks volumes about Kali's continued fitness to be the domiciliary parent and belies any notion of abuse or change of circumstances. The majority ignores this inconsistency.
Arial Leggett (Leggett) testified at the hearing. She babysat Rowan on occasion for Kali and does not have any relationship with Hall, Clayton, Richard, or Cauble. Her only relationship to Kali is that she has babysat for her on a few occasions. She testified that Kali brought Rowan to her on August 24, 2019, and she babysat her from about 12:15 P.M. to about 5:00/6:00 P.M. Hall picked up Rowan from her around 6:00 P.M. She tells a very different story concerning Rowan's condition on that date than does Hall.
or anything to that effect?
A. Oh no. Huh-uh (negative).
Q. Would you have put her around—now, you mentioned that you had a baby?
A. Uh-huh (affirmative).
Q. That child, how old is that child?
A. My baby was born July 27th. She [Rowan] came on August 24th, so my baby's two months old.
....
Q. Would you have had a sick child around your baby?
A. Not at all.
Q. Now, we're speaking about August 24th?
A. Uh-huh (affirmative)
Q. And how did—how did Rowan appear aside from her health?
A. She—she got there and she was like, totally happy. Like, she was playing, she was watching TV, she was—we went to McDonalds, she ate. She ate apple pie, she ate nuggets, she ate fries, she fed my baby. She played like a normal baby, like a normal kid. Nothing was wrong with her at all.
Q. Okay, and at 5:30/6:00 that day, did you have any further actions with this child?
A. No.
Q. Okay.
A. She was completely healthy.
Q. In regard to Cyla Hall, have you ever met her before?
A. No, I have—I don't know—I don't know who she is.
Q. Did you allow her to pick up the child because you were told to?
A. Yes, because Kali gave me permission to give her to—give Rowan to her.
Q. Okay, and aside from that chance encounter, you don't know her, couldn't call her, talk to her, or anything?
A. No, not at all.
This testimony is consistent with Kali's testimony regarding the same series of events. Kali testified that when Hall picked up Rowan on August 24, 2019, she had her for only about an hour then Richard picked her up. The next day, August 25, 2019, Richard brought Rowan back to Hall to babysit her until Kali returned from her birthday weekend in Mississippi. Consistent with Leggett's testimony, Kali testified regarding this time frame as follows.
and then she said that she gave her a bath and went to bed and she was fine. She never expressed any sickness. But the next day she told me that Rowan was acting sick and my husband was there whenever she said that she was gonna make up that Rowan was sick so that I would hurry up and come home and get her. So—whenever I viewed Rowan that day, she was not sick. She had no runny nose, no cough, there was absolutely nothing wrong with the child.
....
A. The next day I came home whenever she told me, but we were in Natchez, Mississippi, so it took us about four hours to get home. I came home as soon as she told me that.
Hall testified she has known Kali since March of 2018. She would see Kali and Rowan about once a week until August of 2019. She recounted that Kali and Rowan spent the night at her home on August 23, 2019, Kali's birthday weekend. Hall described Rowan's condition at that time quite differently than Leggett and Kali.
To continue reading
Request your trial