223 So. 3d 1263
La. Ct. App.2017Background
- Unmarried parents: Janice Sullivan (mother) and David Henry (father) of a child born Dec. 11, 2012; Henry filed to establish paternity and custody.
- Henry obtained temporary sole custody ex parte after alleging Sullivan attempted suicide and was hospitalized; initial no-visitation order followed by limited supervised visitation pending hearing.
- After an evidentiary hearing before Judge Dawn Amacker (Oct. 22, 2015), Amacker orally ruled to award sole custody to Henry and supervised visitation to Sullivan, but had not yet signed a written judgment.
- Sullivan’s new counsel (Richard Ducote) sought Amacker’s recusal; Amacker voluntarily recused and re-allotted the case to Judge Mary Devereux (Division K). Devereux signed a final judgment (Feb. 12, 2016) adopting Amacker’s oral ruling based on the existing record.
- This court initially vacated Devereux’s judgment (holding she was not a statutory successor), but the Louisiana Supreme Court reversed and remanded, holding a successor judge may sign where the prior judge manifested an affirmative intent to sign. The matter returned for merits review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Re-allotment / successor judge authority | Amacker should have randomly re-allotted under Civ. P. art. 253.1; Devereux was not a valid successor and lacked authority to sign judgment | Amacker properly re-allotted after voluntary recusal; Supreme Court held Devereux could sign as successor because Amacker manifested intent to sign | Court follows La. Sup. Ct.: no error in re-allotment; Devereux valid successor and could decide on record |
| Exclusion of witness (Julie Glover) | Sullivan: Glover would rebut statements in progress notes; exclusion was error | Trial court: sequestration breached; testimony might be tainted so exclusion appropriate | Trial judge did not abuse discretion; exclusion proper given suspected sequestration violation |
| Custody award (sole custody to Henry) | Sullivan: Insufficient clear and convincing evidence under La. Civ. Code art. 132; award not in child’s best interest | Henry/trial court: evidence (mental health, substance concerns, false abuse allegations, interference with father–child relationship) supported sole custody and supervised visitation | No manifest error/abuse of discretion; record supports sole custody to Henry and supervised visitation for Sullivan |
| Motion for new trial | Sullivan: procedural defects (recusal), excluded evidence (Glover, Dr. Klein report), and alleged new developments warranted new trial | Trial court: Devereux properly acted as successor (per La. Sup. Ct.); evidentiary rulings not an abuse; no new evidence shown | Denial of new trial affirmed; no abuse of discretion and procedural objections moot after voluntary recusal and Supreme Court ruling |
Key Cases Cited
- Starkey v. Starkey, 122 So.3d 579 (La. App. 1 Cir. 2013) (on successor-judge analysis under La. R.S. 13:4209)
- Martello v. Martello, 960 So.2d 186 (La. App. 1 Cir. 2007) (trial court custody determinations reviewed for abuse of discretion)
- State v. Chester, 724 So.2d 1276 (La. 1998) (purpose of witness sequestration is to prevent influence by prior testimony)
- In re Succession of Wagner, 993 So.2d 709 (La. App. 1 Cir. 2008) (appellate review of trial court evidentiary rulings for abuse of discretion)