Don A. Rouzan v. Ivy Saizan Rouzan

DON A. ROUZAN * NO. 2020-CA-0240

VERSUS *
COURT OF APPEAL
IVY SAIZAN ROUZAN *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2011-11460, DIVISION “B”
Honorable Rachael D. Johnson, Judge
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Judge Joy Cossich Lobrano
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(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Regina Bartholomew-Woods)

Don A. Rouzan
DON A. ROUZAN & ASSOCIATES, LLC
6600 Plaza Drive, Suite 200
New Orleans, LA 70127

PLAINTIFF/APPELLEE, IN PROPER PERSON

Claudia P. Santoyo
ATTORNEY AT LAW
2901 Ridgelake Drive, Suite 205
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED

SEPTEMBER 30, 2020

JCL This is a child custody case. Appellant, Ivy Saizan Rouzan (“Mother”),

SCJ appeals the October 29, 2019 judgment of the district court, which modified the

RBW interim custody judgment and awarded joint custody and co-domiciliary status to

both parents. For the reasons that follow, we vacate and remand.

Appellee, Don A. Rouzan (“Father”), and Mother were married in 1998 and

divorced in 2012. Three children were born of the marriage, who are now

teenagers.1 On April 3, 2018, more than five years after the parties’ divorce, the

district court rendered an interim custody judgment awarding Mother and Father

joint custody, naming Mother as domiciliary parent, and setting forth an interim

physical custody and holiday visitation schedule. The district court continued its

hearing on permanent custody pending completion of a custody evaluation.

On December 10, 2018, Father filed a motion for status conference

concerning the custody evaluation. A status conference was scheduled on January

24, 2019 and then continued to March 14, 2019 on Father’s motion. In a March 18,

2019 order, the district court appointed Dr. Lucinda DeGrange (“Dr. DeGrange”),

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During the pendency of this appeal, the oldest child turned eighteen years of age.

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a licensed psychologist, as the custody evaluator and required the parties to contact

Dr. DeGrange within seven days of the status conference to begin the custody

evaluation process.

On March 25, 2019, Mother filed a motion to enroll new counsel and a

request for notice of trial or hearing.

On July 22, 2019, Father filed a new motion for status conference. On July

30, 2019, the district court ordered two status conferences scheduled in two

different divisions of the court. The first status conference was set on August 26,

2019 at 10:00 a.m. in Division B to address the findings of the custody evaluation,

to set pre-trial deadlines, and to select a trial date. The second status conference

was set later on the same day, on August 26, 2019 at 1:30 p.m., in Division E to

address the status of the sale of the family home, to set pre-trial deadlines, and to

select a trial date.

In their briefs, Mother and Father both represent that the status conference

actually went forward two days later, on August 28, 2019, where the parties met

with the presiding judge, then the minute clerk to select a trial date. Mother and

Father provide differing accounts of this meeting with the minute clerk, and they

dispute whether a custody hearing date was selected and whether the parties

waived notice of the hearing date. The record contains no order resetting the status

conference to August 28, 2019, no minutes or orders documenting any actions

taken at this status conference, no scheduling order, no order setting the custody

hearing, no notice of hearing or trial, and no waiver of notice or service.

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The record contains a subpoena duces tecum dated October 14, 2019 that

was directed to Dr. DeGrange, commanding her in-court appearance to testify on

October 29, 2019. The subpoena is stamped as “received” by the Orleans Parish

Sheriff’s Office on October 16, 2019, but it contains no information that it was

served on anyone.

On October 29, 2019, Father appeared in court. Father is an attorney and

was representing himself at that time. Neither Mother nor her counsel was present.

The transcript reflects a discussion between Father and the district court judge of

their mutual understanding that a custody hearing was set on that day. According

to this colloquy, a status conference was held on August 28, 2019, where the

minute clerk provided both parties with a hearing date. The district court judge

indicated from the bench that “this has been on the docket since August of this

year” and that, prior to starting the hearing, the judge’s staff had called Mother’s

attorney’s office and was unable to reach anyone.

According to the transcript, the district court wanted to take testimony from

Dr. DeGrange, who was subpoenaed and was present in court. The custody

evaluation report prepared by Dr. DeGrange is not a part of the record, though the

district judge stated from the bench that she had read the report and was familiar

with its contents.

No exhibits were introduced into evidence. Father was not sworn as a

witness, but he provided argument to the district court. Dr. DeGrange was the only

witness to give sworn testimony. In that testimony, Dr. DeGrange recommended

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that Mother remain the domiciliary parent. She also recommended that the parents

share joint equal custody and alternate physical custody each week, though she

also recommended more flexibility with the oldest child’s custody schedule. Dr.

DeGrange testified that her recommendation was in the best interest of the children

and the family unit.

At the conclusion of the hearing, the district court judge stated in open court

that she would adopt Dr. DeGrange’s recommendations, except for domiciliary

status, and that she would appoint both Mother and Father as co-domiciliary

parents and order a parenting coordinator for one year. On October 29, 2019, the

district court rendered judgment containing the following language:

This matter came before the Court on the 29th day of October, 2019,
pursuant to [Mother’s] Petition to Establish Custody. On August 28,
2019, [Mother’s] counsel and [Father] appeared for a status
conference with the Court. During this conference, both [Mother’s]
counsel and [Father] received notice and waived service of the
October 29, 2019 hearing date.
…
The Court, after considering the law, the entire record, and the
testimony of [Father] and Dr. Lucinda DeGrange, and believing this
order to be in the best interest of the child, renders the following
Judgment:

The judgment awarded Mother and Father joint custody of the children and

designated Mother and Father as co-domiciliary parents. The district court ordered

that, for one year, in the event that Mother and Father cannot agree upon a decision

regarding the children, the parties bring the issue to a parenting coordinator for

resolution. For the two younger children, the district court ordered a split custody

schedule with each parent exercising custody on a “week on / week off basis.” The

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district court ordered that the oldest child be allowed to live with the parent of his

choice.2

This appeal followed, in which Mother set forth the following assignments

of error:

1. The judgment “violated the restrictions of [La. C.C.P. arts.] 1572,
1913 and 1914 in that it failed to provide, as requested, written notice
of the trial date of October 29, 2019, which was not waived by
[Mother’s] counsel.”

2. The judgment is “contrary to the uncontradicted testimony of the
custody evaluator in this matter.”

“Every child custody case must be viewed based on its own particular facts

and relationships involved, with the goal of determining what is in the best interest

of the child.” Jaligam v. Pochampally, 16-0249, p. 6 (La. App. 4 Cir. 12/7/16), 206

So.3d 298, 303 (citation omitted). Ordinarily, courts of appeal review child custody

decisions under the abuse of discretion standard. Id., 16-0249, p. 5, 206 So.3d at

302. “The abuse of discretion standard is highly deferential, but a court necessarily

abuses its discretion if its ruling is based on an erroneous view of the law.” LCR-M

Ltd. P’ship v. Jim Hotard Properties, L.L.C., 13-0483, p. 9 (La. App. 4 Cir.

10/9/13), 126 So.3d 668, 675 (citing United States v. Taylor, 487 U.S. 326, 336,

108 S.Ct. 2413, 101 L.Ed.2d 297 (1988)(noting that discretionary choices are not

left to a court’s inclination, but to its judgment, which is guided by sound legal

principles))(other citations omitted).

The threshold issue on appeal is whether Mother was provided with

adequate notice of the custody hearing. “[I]t is a basic principle of our legal system

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The judgment also sets forth numerous co-parenting guidelines and holiday visitation.

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that a final judgment cannot be rendered against a party who has not been provided

with proper notice.” Miller v. Crescent City Health Care Ctr., 11-0403, p. 4 (La.

App. 4 Cir. 11/9/11), 78 So.3d 219, 221 (quoting Chaney v. Coastal Cargo, Inc.,

98-1902, p. 4 (La. App. 4 Cir. 1/20/99), 730 So.2d 971, 973). Moreover,

“[p]rocedural due process requires an opportunity to be heard,” and “adequate

notice of the hearing is fundamental.” Miller, 11-0403, pp. 3-4, 78 So.3d at 221

(citations omitted).

Mother argues that the district court erred in proceeding with the custody

hearing without her presence or the presence of her attorney, after failing to give

the parties written notice of the hearing. According to Mother, at the August 28,

2019 status conference, the minute clerk provided the parties with three potential

hearing dates, rather than any firm date. Mother concedes that the first of these

dates was October 29, 2019, which would have been a second setting.

Nevertheless, Mother contends that she filed a request for notice of hearing

pursuant to La. C.C.P. art. 1572, and she was entitled to, and was awaiting, written

notice of hearing from the district court. She denies that she waived notice of the

hearing date. Conversely, Father argues that, during the status conference,

Mother’s attorney supplied October 29, 2019, as an available date for the hearing,

along with two “backup” dates. According to Father, both parties agreed to appear

in court on October 29, 2019, and waived further notice of the hearing. He

contends that the onus was on Mother’s attorney to confirm with the district court

that the custody hearing was set to move forward.

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The Louisiana Code of Civil Procedure and local rules of the district court

govern pre-trial and scheduling conferences and notice of hearing or trial. In

particular, La. C.C.P. art. 1551(B) mandates that the district court “shall render an

order which recites the action taken” at a pre-trial and scheduling conference, and

that “[s]uch order controls the subsequent course of the action, unless modified at

the trial to prevent manifest injustice.” With respect to hearing and trial dates, La.

C.C.P. art. 1571 provides that “[t]he district courts shall prescribe the procedure for

assigning cases for trial, by rules which shall: (a) [r]equire adequate notice of trial

to all parties…”

In the Civil District Court of the Parish of Orleans, Local Rule 9.14 specifies

the district court’s procedure – that dates selected at a status conference are

memorialized in a scheduling order signed by the parties and the court – as

follows:

… after the completion of a sufficient amount of discovery that allows
the lawyers/parties to reasonably anticipate the length of the trial, any
party may seek a status conference for the purpose of selecting a trial
date appropriately in the future, as well as cut off dates for witness
lists, expert reports, and discovery. At this status conference, a date
for a pre-trial conference to occur shortly before trial may also be
selected. The dates selected will be reduced to a scheduling order
signed the by parties and the court.

La. C.C.P. art. 1572 also governs a party’s request for notice of trial and a

limited waiver of notice:

The clerk shall give written notice of the date of the trial whenever a
written request therefor is filed in the record or is made by registered
mail by a party or counsel of record. This notice shall be mailed by
the clerk, by certified mail, properly stamped and addressed, at least
ten days before the date fixed for the trial. The provisions of this

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article may be waived by all counsel of record at a pre-trial
conference.

As described herein, the record on appeal contains no scheduling order, no

order setting a custody hearing, no notice of hearing or trial served on the parties,

and no evidence of a written or transcribed waiver of notice or service. Although

Father contends – and the district court found – that Mother and Father received

notice of the custody hearing and waived service during the status conference, the

record contains nothing to show that the district court ordered the parties to appear

on October 29, 2019, or that the parties agreed to waive notice of the hearing.

This Court has concluded that a litigant’s “procedural due process rights

were violated by the rendition of [] judgment against them” where there was “no

record support for a finding by the trial judge that the defendants were given notice

of trial.” LCR-M Ltd. P’ship, 13-0483, pp. 8-9, 126 So.3d at 674. Consequently,

this Court has vacated numerous judgments where the record lacked evidence of

notice of the hearing or any waiver of the litigant’s notice of the hearing. See, e.g.,

id.; Miller, 11-0403, pp. 3-4, 78 So.3d at 221; Hicks v. Schouest, 381 So.2d 977,

978 (La. App. 4th Cir. 1980). See also Edwards v. Edwards, 614 So.2d 725, 727

(La. App. 5th Cir. 1993); Allmon v. Allmon, unpub., 13-0754, pp. 4-5, 2013 WL

5177183 (La. App. 1 Cir. 9/13/13). Under the facts before us on appeal, we are

constrained to reach the same result. We find that the district court abused its

discretion in rendering judgment without any record support of proper notice of

hearing provided to Mother or her counsel. The October 29, 2019 judgment must

be vacated and remanded.

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Accordingly, for the reasons set forth in this opinion, we vacate the October

29, 2019 judgment and remand to the district court for further proceedings

consistent with this opinion.

VACATED AND REMANDED

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