131 So. 3d 363
La. Ct. App.2013Background
- Miguel Barnes and Jessica Jacob shared joint custody of two children under a June 3, 2010 consent judgment naming Jacob domiciliary parent.
- Barnes filed a motion to change custody seeking domiciliary-parent status; a hearing officer recommended denial and appointment of a Parenting Coordinator.
- At a July 17, 2012 hearing the trial judge required a full custody evaluation by a mental-health expert before considering modification; the parties agreed and the evaluation was completed.
- At the May 28, 2013 hearing Barnes (appearing pro se) argued the evaluator recommended he be designated domiciliary parent; Jacob’s counsel challenged the report as relying on pre-consent-judgment events and argued no material change existed.
- The trial court denied Barnes’s motion for change of custody, finding no material change in circumstances. On appeal the reviewing court found the mental-health evaluation report had not been formally introduced into evidence and therefore could not have been considered.
- The appellate court vacated the May 28, 2013 judgment and remanded for further proceedings so the required evidentiary process can occur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mental-health custody evaluation could be considered by the trial court | Barnes: evaluation recommended modification and designation of Barnes as domiciliary parent | Jacob: report relied on events before the consent judgment; no material change in circumstances | The report was never formally introduced into evidence; court vacated judgment and remanded for further proceedings |
| Whether a material change in circumstances was proved to warrant custody modification | Barnes: evaluator’s findings show change warranting modification | Jacob: no material change; reliance on pre-judgment events | Trial court ruled no material change, but appellate court did not review merits because the evaluation was not admitted; remand required |
Key Cases Cited
- Denoux v. Vessel Mgmt. Services, Inc., 983 So.2d 84 (La. 2008) (evidence not properly offered and introduced cannot be considered)
- Sheffie v. Wal-Mart Louisiana, LLC, 92 So.3d 625 (La. App. 5 Cir. 2012) (appellate review limited to recorded evidence)
- Rudolph v. D.R.D. Towing Co., LLC, 59 So.3d 1274 (La. App. 5 Cir. 2011) (appellate courts may not receive new evidence)
- Brielle’s Florist & Gifts, Inc. v. Trans Tech, Inc., 74 So.3d 833 (La. App. 3 Cir. 2011) (evidence must be properly introduced to be considered)