75 So. 3d 30
La. Ct. App.2011Background
- Joseph and Shannon married April 16, 1994; three children: Rachel, Drew, Jack.
- They separated September 3, 2009; Joseph filed for divorce October 2009; Shannon filed reconventional demand November 2009.
- Interim order granted Shannon temporary sole custody with Joseph having alternating weekend visitation; custody evaluation ordered.
- Ms. Ruel conducted the custody evaluation; Jo Ballanco contributed a report attached to the evaluation.
- Trial court denied divorce, awarded joint custody with Shannon as the primary domiciliary parent; contempt finding against Shannon for denying Rachel visitation; ordered substance abuse assessment for Shannon; Joseph taxed with costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adultery as basis for divorce | McFall—Webber affair and bank account corroborate adultery. | Shannon denies adultery; no corroboration supports Webber testimony. | Trial court not manifestly erroneous in finding no adultery. |
| Contempt for denial of visitation; fees and make-up time | Shannon’s contempt warrants attorney’s fees, costs, and additional visitation time. | Contempt finding was made; trial court deferred sentence; no award of fees or extra visitation. | Legal error to fail to award fees and make-up visitation; remanded for compliance with RS 9:346. |
| Custody related to substance abuse treatment recommendations | Trial court should impose intensive outpatient treatment and follow evaluator's recommendations. | Trial court has discretion; may accept or reject expert opinions; fresh independent assessment permissible. | Court did not err in ordering independent assessment and not mandating intensive outpatient treatment. |
| Admissibility of Ballanco as expert; domestic violence assessment | Ballanco’s methods are unreliable; Daubert criteria not satisfied; costs of expert fee improper. | Ballanco qualified as expert; testimony cumulative; expert fee within trial court discretion. | Court properly admitted Ballanco as expert; taxing of fees affirmed. |
| Custody determination; need for DV-related findings before custody | Domestic violence history must be addressed; joint custody inappropriate without DV ruling. | Custody decisions must balance best interests; evaluator findings considered; DV issue unresolved. | Vacate and remand custody/visitation ruling to address outstanding DV petition under RS 9:364. |
Key Cases Cited
- Marcotte v. Marcotte, 886 So. 2d 671 (La.App. 3 Cir. 2004) (Circumstantial proof must exclude other reasonable hypotheses in adultery cases)
- Cenacle Retreat House v. Dubose, 888 So.2d 409 (La.App. 5 Cir. 2004) (Appellate review of trial court factual determinations with deference to credibility)
- Arnoult v. Arnoult, 690 So.2d 101 (La.App. 5 Cir. 1997) (Great weight given to trial court's factual findings; manifest error standard)
- Evans v. Lungrin, 708 So.2d 731 (La.2d 1998) (Legal error may justify de novo review; need proper legal analysis)
- Kuebel v. Charvet's Garden Center, Inc., 30 So.3d 885 (La.App. 5 Cir. 2009) (Expert testimony weight within trial court’s discretion; Daubert considerations referenced)
- Richardson v. Richardson, 974 So.2d 761 (La.App. 4 Cir. 2007) (Trial court discretion in custody matters; expert testimony weighed like others)