Raney v. WrenRaney v. Wren
- Reporters:
- ,
- Before:
- Weimer, Gonzales, Kuhn
WEIMER, J.
This is an appeal by the plaintiff, Lori Lynne Wren Raney, from a judgment awarding joint custody of the minor child, Jessica, to her and Jason Christopher Wren. Mr. Wren was designated as the domiciliary parent. We affirm.
FACTS AND PROCEDURAL HISTORY
The parties were married on January 19, 1988. One child, Jessica Wren, was born of the marriage on July 15, 1988. The parties physically separated in August of 1993, at which time Mrs. Raney decided to move from Baton Rouge, Louisiana, to Monroe, Louisiana, to be close to her family. According to Mr. Wren, he allowed Mrs. Raney to take Jessica with her to Monroe. Mrs. Raney moved back to Baton Rouge in March of 1994, at which time Jessica remained in Monroe with her grandparents and finished kindergarten. After completing school, Jessica moved back to Baton Rouge, and according to Mr. Wren, spent more time with him than with her mother because of Mrs. Raney‘s work schedule. Thereafter, on December 16, 1994, a judgment of divorce was rendered and by consent of the parties, they were awarded joint custody of Jessica, with Mr. Wren designated as the domiciliary parent. Mrs. Raney was awarded unrestricted visitation.
Mrs. Raney remarried in March of 1995, and subsequently moved to California with her new husband, Robert Raney, in November of 1995. On December 12, 1995, Mrs. Raney filed a Petition for Change of Custody
Mr. Wren filed an Answer and Reconventional Demand in which he alleged that he had been the primary caregiver of Jessica and that Mrs. Raney had not been actively involved in Jessica‘s life for the last several years. He further alleged that Mrs. Raney‘s remarriage and move to California was a change in circumstances and that he was entitled to sole custody. In an amended petition, Mrs. Raney alleged that Mr. Wren had a “history of family violence” as defined in
This matter was heard by the trial court on February 5, 6, and 7, and June 4, 5, 6, and 20, 1997. After hearing all of the evidence in this case, the trial court rendered judgment awarding the parties joint custody of Jessica, with Mr. Wren designated as the domiciliary parent. It is from this judgment that Mrs. Raney now appeals.
Mrs. Raney has assigned eight specifications of error relative to the trial court‘s limiting evidence to facts occurring after the original custody decree; the trial court‘s refusal to allow Jessica to testify other than to state her preference as to domicile (to which Mr. Wren was willing to stipulate); the trial court‘s ruling that the best interest of the child would be served by maintaining domiciliary parent status with Mr. Wren; and the trial court‘s allowing expert testimony on the mental health of the parties based solely on certain diagnostic test scores and favoring that testimony over a custody evaluation performed by the court‘s independent psychological expert.
MODIFICATION OF CUSTODY
When a trial court has made a considered decree of permanent custody, the party seeking a change in custody bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). However, where no considered decree of custody has been rendered, the “heavy burden” rule of Bergeron does not apply. If a prior award of custody has been made by consent decree, the party seeking a change in custody must prove that a change in circumstances materially affecting the welfare of the child has occurred since the original decree. The proponent for change must also show that the proposed modification of custody is in the best interest of the child. Connelly v. Connelly, 94-0527, p. 4 (La.App. 1 Cir. 10/7/94), 644 So.2d 789, 793.
STANDARD OF REVIEW
Every child custody case must be viewed within its own peculiar set of facts. Connelly, 94-0527 at 4, 644 So.2d at 793. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court‘s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La.1988)(per curiam); Bercegeay v. Bercegeay, 96-0516, p. 5 (La.App. 1 Cir. 2/14/97), 689 So.2d 674, 676.
In the instant case, as in most custody cases, the trial court‘s determination was based heavily on factual findings. The Louisiana Supreme Court developed a two part test for reviewing factual issues on appeal in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). According to the test, appellate
1. The appellate court finds from the record that a reasonable factual basis for the finding of the trial court does not exist, and
2. The appellate court determines that the record establishes that the finding is clearly wrong (manifestly erroneous).
Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).
The Supreme Court has promulgated some general principles for appellate courts to follow when determining whether factual findings are “clearly wrong.” One general principle concerns the credibility of witnesses. When factual findings are based on the credibility of witnesses, the fact finder‘s decision to credit a witness‘s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Credibility determinations may be clearly wrong when “documents or objective evidence so contradict the witness‘s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness‘s story....” Stobart, 617 So.2d at 882; Rosell, 549 So.2d at 844-845. However, absent contradictory evidence or inconsistent or implausible statements, it is “virtually never” clearly wrong for the fact finder to accept one witness‘s version of the facts over another. Rosell, 549 So.2d at 845.
EXCLUSION OF EVIDENCE
(Assignments of Error Nos. 1, 2 & 3)
In these assignments of error, Mrs. Raney contends that the trial court erred “by limiting the evidence presented in this case to facts occurring after December 16, 1994, on the grounds that such evidence is irrelevant.” In support of her position, Mrs. Raney cites Smith v. Smith, 615 So.2d 926 (La.App. 1 Cir.), writ denied, 617 So.2d 916 (1993). After a review of the record as a whole, we conclude that the facts in Smith are clearly distinguishable from the facts in the instant case. For the following reasons, we agree with the trial court‘s decision to exclude evidence of acts prior to the consent judgment.
In Smith, the parties entered into a consent judgment whereby the parties were granted joint custody of their two minor children with the mother being designated as the primary custodial parent. Smith, 615 So.2d at 928-929. Later, Mr. Smith filed a rule for change of custody seeking sole custody of the children on the basis that Mrs. Smith had relocated to Indiana with the children without giving him prior notice of the move. The trial court excluded testimony offered by Mrs. Smith as to verbal and physical abuse by Mr. Smith during their marriage. Mrs. Smith sought introduction of this evidence “to show that she was justified in moving to Indiana without notifying Mr. Smith.” In its reasons for judgment, the trial court characterized Mrs. Smith‘s actions as impulsive and stated that it was “outraged” that she had moved out of state without notifying Mr. Smith. The court further found that Mrs. Smith‘s alleged fear of Mr. Smith did not justify her actions. Smith, 615 So.2d at 930. The trial court then rendered a judgment which modified the previous custody decree by changing the domiciliary parent from Mrs. Smith to Mr. Smith.
On appeal, this court concluded that the trial court erred in excluding certain evidence of acts occurring prior to the consent judgment. This court noted:
Whether evidence is relevant or not is within the discretion of the trial court, and its ruling will not be disturbed absent a clear abuse of discretion. However, application of the change in circumstances rule to this case does not automatically preclude the introduction of all evidence of facts occurring prior to the stipulated custody judgment. The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had “a full and fair opportunity to litigate“. Smith, 615 So.2d at 931 (citations omitted).
After considering the entire record, including the proffered testimony of both parties, this court reversed the trial court‘s judgment and
In the instant case, Mrs. Raney sought to introduce evidence that Mr. Wren had a “history of family violence” within the meaning of
For evidence of facts occurring before a stipulated judgment to be admissible, the evidence must meet the criteria of relevance and the balancing test as set forth in the Louisiana Code of Evidence. See
Mrs. Raney relies on Smith for the proposition that evidence of facts occurring prior to a stipulated custody judgment should be considered in a subsequent custody hearing. However, just as courts should not automatically exclude evidence of pre-consent judgment conduct, courts should not automatically admit the evidence. To introduce evidence of facts which occurred prior to a consent decree, the evidence must be relevant and material. However, even relevant evidence of facts occurring prior to the consent decree should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or considerations of undue delay or waste of time.
We have evaluated the testimony found in the proffers and conclude that the evidence involves a swearing contest between the parties. A thorough review of the record in this case indicates that the evidence does not support Mrs. Raney‘s allegations of violence on the part of Mr. Wren. Given the length of time between Mrs. Raney‘s complaints and the original consent decree, and other factors such as her conduct after the consent decree, Mrs. Raney‘s allegations are suspect.2
Mrs. Raney testified that she and Mr. Wren had a very amicable separation. In fact, during the summer prior to her move to California, she indicated that they “start[ed] communicating a lot more” and tried to “show Jessica that in her presence [they] were both okay with each other and that [they] could get along with each other.” She testified that she “had no problem going to his [Mr. Wren‘s] house” and “no problem spending time with him [Mr. Wren] and Jessica.” Mrs. Raney also admitted to spending the night at Mr. Wren‘s house on two occasions.
We have carefully considered the record and find no abuse of discretion by the trial court in refusing to admit the evidence of acts prior to the consent decree.
(Assignments of Error Nos. 4, 5 & 6)
A review of the record in this case reveals that Jessica did not testify at the custody hearing. Mrs. Raney contends that the trial court erred by limiting Jessica‘s testimony to that of her preference as to domicile, in that the record contained expert testimony and evidence establishing Jessica‘s competence, intelligence, willingness, and need to testify. The parties stipulated to Jessica‘s preference as to domicile, i.e. that she would rather live with her mother.
According to the record, Jessica was called as a witness by counsel for Mrs. Raney. However, she was only asked a few questions before counsel for Mr. Wren interjected concerns regarding Jessica testifying. Argument by counsel for both parties was then heard by the trial judge, who ultimately determined that it was in the child‘s best interest to limit Jessica‘s testimony to her preference as to domicile.3 Later in the record, counsel for Mrs. Raney requested that the court interview Jessica. However, this request was denied by the trial court.
The admission of the testimony of a child of tender years is a matter which addresses itself to the sound discretion of the trial court. Wilson v. Moser, 210 La. 1021, 29 So.2d 49, 50 (1946). However, a court cannot exclude a child‘s testimony based solely on the premise of protecting the child. Id. at 49. While there are no specific provisions in the Louisiana Code of Civil Procedure or the Louisiana Code of Evidence that address the testimony of children,4 we do have jurisprudential guidance.
In the case of Watermeier v. Watermeier, 462 So.2d 1272, 1275 (La.App. 5 Cir.), writ denied, 464 So.2d 301 (1985), the court established guidelines for taking the testimony of children in a custody dispute:
[T]he interview must be conducted in chambers outside of the presence of the parents, but in the presence of their attorneys, with a record being made by the court reporter. The judge shall first determine [the child‘s] competency as “a person of proper understanding” by interrogating the child with appropriate questions. The attorneys shall be allowed to participate in the competency examination by asking questions and registering appropriate but only necessary objections. If the judge determines that the child is not a competent witness as outlined above, [the judge] shall immediately terminate the interview.
However, if the judge determines that the child is competent, . . . the interview [may continue] in the presence of the attorneys as observers only. They shall not participate by asking questions, or cross-examining or registering objections, as we deem this would upset, distract and possibly intimidate the child to a degree that would undermine [the child‘s] willingness to give any useful information.5
These guidelines have been cited with approval and adopted by this court in In re Custody of Landry, 95-0141, p. 7 (La.App. 1 Cir. 10/6/95), 662 So.2d 169, 173 and Diggs v. Tyler, 525 So.2d 1263, 1265-1266 (La.App. 1 Cir.1988).
There is nothing in the record to indicate that the trial court followed these guidelines. While Jessica‘s brief testimony was elicited during a closed hearing, presumably outside of the presence of her parents,6 her competency was not evaluated by the trial court. Rather, counsel for Mrs. Raney was allowed to question Jessica. Jessica was first questioned regarding her understanding
The trial court did not follow the jurisprudentially created guidelines for taking the testimony of a child in a custody dispute. The record contains evidence to indicate that Jessica was in fact competent to testify and the trial court made no finding that she was incompetent to testify. Although a trial court has great discretion regarding the admission of a child‘s testimony, in this case the trial court‘s exclusion of Jessica‘s testimony was erroneous in light of Wilson, Landry, and Diggs.
Having found an error in the trial court‘s ruling, we must determine if the error is prejudicial to the case.
BEST INTEREST OF CHILD
(Assignment of Error No. 7)
In this assignment of error, Mrs. Raney contends that the trial court erred in ruling that the best interests of Jessica would be served by maintaining domiciliary parent status with Mr. Wren. For the reasons that follow, we find this assignment of error to be without merit.
The best interest of the child is the paramount consideration to be applied in all custody determinations.
In written reasons for judgment, the trial court stated in part:
The Court finds that neither parent is unsuitable. The mother has recently married and has moved out of state. The father has cared successfully for their daughter for a lengthy period of time in a stable environment. His schedule is flexible, enabling him to be with his daughter as needed.
....
Considering the entirety of the record, the credibility and demeanor of the witnesses, particularly the parties, the Court will award joint custody with Mr. Wren being designated as the primary domiciliary parent. (Emphasis added.)
Mrs. Raney argues that “if the evidence of the developmental needs of [Jessica] are not refuted, and neither party is unsuitable, these facts[,] combined with the stipulation by [Mr. Wren] that [Jessica] wishes to be with her mother[,] should carry [her] burden of proof.” Mrs. Raney must prove that a change in circumstances materially affecting Jessica‘s welfare has occurred since the original consent decree was signed and that the modification proposed is in Jessica‘s best interest. See Connelly, supra. In addition to the above, Mrs. Raney, as a parent seeking to remove her child from the court‘s jurisdiction, must show: (1) that there is a good reason for the move, and (2) that the move is in the child‘s best interest. Day v. Day, 97-1994, p. 3 (La.App. 1 Cir. 4/8/98), 711 So.2d 793, 795. It is undisputed that Mrs. Raney‘s move constituted a change in circumstances. It is also clear that there was a good reason for Mrs. Raney‘s move. Thus, the question that remains is whether the move is in Jessica‘s best interest.
While the child‘s preference as to domicile is certainly a factor to be considered by the trial court in a custody determination, so too is the stability of environment. Although both parties are generally shown to be good and loving parents, the totality of the circumstances favors Mr. Wren. He has provided a stable environment for Jessica and successfully cared for her since the original consent decree was signed. In contrast, Mrs. Raney has left Louisiana, relocated twice over the past few years, and is not certain that she will permanently reside in Virginia as her husband is in the Navy and may be transferred to another command. As noted by this court in Day, stability of environment and the desirability of maintaining continuity of that environment are important factors to be considered in a custody dispute. Day, 97-1994 at 6, 711 So.2d at 796. Absent a compelling reason, a change from a stable environment should not be made. Id.
In the instant case, the trial court considered the lay and expert testimony and determined that it was in Jessica‘s best interest to remain with her father in the stable environment which he has provided. Review of the record reveals no reversible error. We find that the trial court‘s credibility determinations are not clearly wrong. Each case must be evaluated based on its own particular facts and circumstances by weighing and balancing the factors enumerated above. After carefully examining the evidence in this case, we cannot say the trial court abused its discretion in awarding the parties joint custody with Mr. Wren designated as the domiciliary parent.
EXPERT TESTIMONY
(Assignment of Error No. 8)
In this final assignment of error, Mrs. Raney asserts that the trial court erred by allowing expert testimony by Dr. Carey Rostow on the mental health of the parties based solely on their Minnesota Mutiphasic Personality Inventory-2 (MMPI-2) test scores.7 She further contends that it was error for the trial court to favor Dr. Rostow‘s testimony over the custody evaluation performed by Dr. Alan Taylor, the court appointed psychological expert.
While Dr. Rostow was asked questions about the MMPI-2 test scores for both Mr. Wren and Mrs. Raney, he was never asked to comment on the mental health of the parties. Furthermore, Dr. Rostow was never asked to give a recommendation as to custody. Rather, he was simply used as an expert witness to testify about the MMPI-2, and his experiences regarding the use of this test in custody cases.9
As previously indicated, Dr. Taylor was appointed by the trial court to evaluate the parties and prepare a custody evaluation. Dr. Taylor, who was qualified as an expert in the field of clinical psychology, testified at length about the testing process and his interviews with the parties. Marcia Cox, an expert in the field of social work, also testified about the case and her involvement in assisting Dr. Taylor in preparing the custody evaluation for the court. Dr. Taylor indicated that based on his assessment of the parties, he would recommend that Jessica live with her mother.
It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Fountain v. Fountain, 93-2176, p. 5 (La.App. 1 Cir. 10/7/94), 644 So.2d 733, 738. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Id. Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole. Goodwin v. Goodwin, 618 So.2d 579, 586 (La.App. 2 Cir.), writ denied, 623 So.2d 1340 (1993); Galloway v. Gaspard, 340 So.2d 579, 583 (La.App. 1 Cir.1976).
We find no merit in Mrs. Raney‘s contention that the trial court erred in allowing expert testimony by Dr. Rostow. The trial court considered the testimony of all the witnesses. It weighed the evidence in light of the circumstances on which the expert testimony was predicated. We cannot say that the trial court‘s evaluation of the expert testimony and subsequent determination that Jessica‘s best interests would be best served by maintaining joint custody with Mr. Wren designated as the domiciliary parent was an abuse of its great discretion.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff-appellant, Lori Lynne Wren Raney.
AFFIRMED.
GONZALES, J., concurs and assigns reasons.
GONZALES, J, concurring.
I respectfully concur. I agree with the result reached by the majority but write separately to express my views regarding the trial court‘s refusal to allow evidence of Mr. Wren‘s history of family violence.
Evidence of Mr. Wren‘s history of family violence is relevant in determining his fitness as the domiciliary parent of his daughter,
After determining the trial court erred in excluding the proffered evidence, this court must then determine whether the erroneous exclusion of the evidence affected a “substantial right” of Mrs. Raney. This inquiry is required by
The majority opinion seems to indicate that it was error to exclude the proffered evidence regarding Mr. Wren‘s alleged history of family violence. If this is the case, the majority should simply say so. I believe it was error to exclude the proffered evidence. However, I also believe that the exclusion of the evidence did not affect a substantial right of Mrs. Raney, because the proffered evidence amounts to nothing more than a “swearing contest” between the parties, as the majority opinion indicates, and was not of sufficient weight to change the trial court‘s determination on the issue of Mr. Wren‘s fitness as the domiciliary parent of his daughter.