Nail v. Clavier

• Decision Date: 10 November 1999
• Docket Number: No. 99-588.,99-588.
• Citation: 745 So.2d 1221
• Parties: Timothy NAIL, Plaintiff-Appellee, v. Marilyn E. CLAVIER, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

745 So.2d 1221

Timothy NAIL, Plaintiff-Appellee, v. Marilyn E. CLAVIER, Defendant-Appellant.

No. 99-588.

Court of Appeal of Louisiana, Third Circuit.

November 10, 1999.

Writ Denied January 5, 2000.

John Edward Fitz-Gerald, for Timothy Nail.

Kathleen Kay, Lake Charles, for Marilyn Clavier.

William J. Cutrera, Lake Charles, for Christopher Nail et al (Children).

BEFORE: DECUIR, AMY and PICKETT, Judges.

DECUIR, J.

This court granted a request for supervisory writs filed by Marilyn Clavier and converted the case to an appeal on all issues. At issue is the custody of the minor children, born to Marilyn Clavier and Timothy Nail, as well as child support and visitation matters.

FACTS

On January 24, 1991, the marriage between Timothy Nail and Marilyn Clavier ended in a divorce granted by order of the District Court, County of Larimer, State of Colorado. Stating explicit reservations about the abilities of either party to provide adequate parenting, the Colorado court granted custody of Christopher, born December 9, 1986, and Ashley, born January 25, 1988, to Marilyn Clavier. In addition, the court granted Clavier's request to move the children to Louisiana. Nail was granted one extended weekend visitation per month in Louisiana, one week for spring break, two weeks for the summer of 1991, four weeks for the summers of 1992-1994, and six weeks per summer thereafter and alternating holidays. The court also ordered Nail to pay $390 per month in child support while the children remained in Colorado. Three months after the children moved to Louisiana support was to be reduced to $280 per month in consideration of travel costs.

Clavier and the children subsequently moved to Sulphur, Louisiana. Some time later Nail moved to Louisiana as well. Despite explicit prohibitions on contact between the parties contained in the Colorado divorce decree, Nail and Clavier managed contact intimate enough to produce another child. Kristen was born on December 27, 1993. After Kristen's birth, the family continued the tumultuous life of violence, substance abuse and general disarray which had previously characterized the marriage. Nail stayed with the family for extended periods, though he maintained a separate residence. The latest of these extended stays ended on July 10, 1997 when Clavier asked Nail to leave. He ultimately did so, taking the children for his visitation. The parties dispute the intended length of that visit. In any event, on July 13, 1997, Nail and the children went by Clavier's home, allegedly to retrieve Christopher's retainer. Exactly what transpired is unclear, but Clavier arrived in an intoxicated state and ended up locked in the house with the children. Nail contended that she was refusing to let the children leave and, therefore, he called the police. The police arrived and after a heated argument with the officer, Clavier was detained by force and placed under arrest. All of this transpired in the presence of the children.

On July 21, 1997, Nail filed a petition for change of custody. On July 30, 1997, Clavier answered and sought additional relief. A hearing was held on July 31, 1997 and custody of the children was transferred by the court to Harbour House. On August 12, 1997, the court appointed William Cutrera guardian ad litum for the children, ordered child support by both parties, and issued a second interim order transferring custody to Bill and Lisa Elder, Clavier's sister and brother-in-law. Citing difficulty dealing with Clavier's behavior during and surrounding visitation and the general turmoil created in their family, the Elders requested a transfer of custody. On October 31, 1997, a hearing was held and custody was transferred to Elaine and Sally Nail, Nail's grandmother and mother. Nail's mother lived in Colorado but agreed to move to Louisiana to care for the children. The children have been in her custody since that time. Nail and Clavier were granted two hours of supervised visitation per week by the trial court.

Trial of the matter began on December 17, 1998. On March 25, 1999, the curator for the children filed an answer asking the court to place the children "with a person or persons, whether parent or a non-parent, in accordance with their best interest." At the completion of the trial, the court determined that the best interest of the children could only be met by awarding Sally Nail sole custody of the children. The court also allowed Sally Nail to return to Colorado with the children. The court denied visitation to both Nail and Clavier pending completion of counseling for emotional problems, anger management, domestic violence issues, and alcohol and drug abuse. In addition, the court ordered each party to pay $224.00 in child support, $50.00 of which is to be forwarded to the curator, William Cutrera, in compensation for his services.

Clavier filed a motion of intent to apply for supervisory writs and to stay the proceedings. The trial court stayed the proceeding pending the outcome of the writ but refused to prevent the children from leaving the jurisdiction. On May 17, 1999, this court granted the writ and converted it to an appeal. Clavier's request to prohibit the removal of the children from the jurisdiction was denied.

AWARD OF CUSTODY TO NON-PARTY

Clavier first asserts that the trial court erred in awarding custody to Sally Nail because she did not petition for custody and is not a party to the suit. We disagree.

Clavier relies on Hall v. Hall, 367 So.2d 162 (La.App. 2 Cir.1979) in support of her contention. After reviewing Hall, we conclude that it does not stand for the proposition that custody may not be awarded to a non-party. Rather, Hall holds that where the proper standard of proof regarding the parents' conduct has not been met, custody cannot properly be awarded to a nonparent especially if that non-parent is not a party.

Accordingly we have reviewed the jurisprudence for more persuasive authority. In Roller v. Roller, 213 So.2d 161 (La.App. 3 Cir.1968), this court held that the technicality that the grandmother was not a named party did not deprive the trial court of the discretion to award custody to her. In Stuckey v. Stuckey, 276 So.2d 408, 411 (La.App. 2 Cir.1973), the court noted that Roller stated "a sound rule which allows the trial court the necessary flexibility to do what is necessary in the best interest of the child." Likewise, our brethren of the fourth circuit held specifically, "[g]rand-parents of a minor child need not be parties to an action for child custody in order for custody to be awarded to them." Schloegel v. Schloegel, 584 So.2d 344, 348 (La.App. 4 Cir.1991). Accordingly, we find no merit in this assignment.

NECESSITY OF INVOKING JUVENILE AUTHORITY

By her next two assignments, Clavier contends that an exercise of its juvenile jurisdiction is the only means by which a court may award custody to a non-parent and that under the Children's Code the court may only exercise this authority upon petition by the District Attorney. We disagree.

Clavier cites Hall, 367 So.2d 162, and Mertens v. Mertens, 308 So.2d 508 (La. App. 3 Cir.), writ denied, 313 So.2d 240 (La.1975), in support of her contentions. A cursory examination of these cases reveals that they do not purport to limit the power of the trial court to an exercise of its juvenile authority. Instead, both cases involve situations where the trial court did not find the requisite proof under the custody provisions nor could the court properly exercise its juvenile authority.

We find this case to be governed by La.Civ.Code art. 133 which provides that upon finding that an award of custody to "either parent would result in substantial harm to the child, the court shall award custody to another person" who has been or can provide a stable environment. This statute vests the court with all the authority necessary for the judgment in this case. There was no need for the court to exercise its juvenile authority. Accordingly, these assignments lack merit.

FAILURE TO REFER TO DEPARTMENT OF SOCIAL SERVICES

Clavier next contends that the trial court erred in awarding custody to a nonparent rather than referring the matter to the Department of Social Services as provided in La.Ch.Code art. 308. We disagree.

La.Ch.Code art. 308 provides:

A. Whenever any court of this state in the trial of any proceeding has cause to believe that a child's physical or mental health or welfare is endangered by abuse or neglect, it may report or refer the charges to the local child protection unit of the Department of Social Services in accordance with Article 610. [Emphasis added.]

The language of the article is clearly permissive rather than mandatory. The trial court had the option to refer the matter to the Department of Social Services, but was not required to do so. Moreover, in this case, the testimony of both parties reveals that the Department of Social Services had already investigated on more than one occasion. Accordingly, this assignment has no merit.

CONSIDERATION OF EVIDENCE OUTSIDE THE RECORD

By this assignment, Clavier contends the trial court erred by considering evidence not in the record in making its determination. Specifically, Clavier objects to the trial court's consideration of reports from the Office of Community Services regarding allegations of abuse and neglect, and reliance on interviews conducted with the children.

Clavier is correct in asserting that "a finder of fact cannot consider evidence outside the record in making its findings." Burdis v. Lafourche Parish Police Jury, 618 So.2d 971, 976 (La.App. 1 Cir.), writ denied, 620 So.2d 843 (La.1993). She is also correct in noting that the trial court did not admit the Office of Community Services reports into the record. Moreover, it is clear from the trial court's reasons that it improperly attributed its findings to evidence adduced from these reports. However, after careful review of the record in its entirety, we...