Shaunn Caillier McCorvey v. Derriel Carlton McCorvey

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-174

SHAUNN CAILLIER MCCORVEY

VERSUS

DERRIEL CARLTON MCCORVEY

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 02-C-2619-A
HONORABLE AARON FRANK MCGEE, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Alex L. Andrus, III
ANDRUS & DOHERTY
117 North Market Street
Opelousas, LA 70571
Telephone: (337) 942-5645
COUNSEL FOR:
Plaintiff/Appellee - Shaunn Caillier McCorvey

Glenn James Labbe
P. O. Box 90870
Lafayette, LA 70509
Telephone: (337) 233-3033
COUNSEL FOR:
Defendant/Appellant - Derriel Carlton McCorvey

Derriel Carlton McCorvey
The Law Office of Derriel C. McCorvey, L.L.C.
P. O. Box 2473
Lafayette, LA 70502
Telephone: (337) 291-2431

THIBODEAUX, Chief Judge.

In this child custody case, the Defendant, Derriel McCorvey, appeals

from a judgment of the trial court which denied his Motion for Change of Venue,

denied his Motion to Strike and for Sanctions, denied his Motion to Expand Parental

Custody, and which granted the Plaintiff’s Motion and Order for Contempt and to

Restrict Inappropriate Activities in the Presence of the Minor Child and to Restrict

Visitation. For the reasons set forth below, we affirm the well-reasoned judgment of

the trial court.

I.

ISSUES

The issues to be determined are:

1) whether the trial court abused its discretion in
denying Defendant’s Motion for Change of Venue;

2) whether the trial court abused its discretion in
finding Defendant in contempt of court;

3) whether the trial court abused its discretion in
denying Defendant’s Motion to Strike Language
from Plaintiff’s Motion; and,

4) whether the trial court abused its discretion in
restricting Defendant’s visitation and in denying
Defendant’s Motion to Expand Parental Custody.

II.

FACTS

Plaintiff, Shaunn Caillier-McCorvey, filed a Petition for Divorce and

Incidental Relief in St. Landry Parish against Defendant, Derriel McCorvey, on

grounds of adultery on June 24, 2002, one year after the birth of their daughter,

Darian Z. McCorvey, born on June 25, 2001. Plaintiff asked for sole custody of the

1

minor child and, in the alternative, joint custody, use of the family home in

Opelousas, and a judicial partition of community property in due course. The

judgment of divorce was rendered on November 12, 2002. Joint custody was

awarded to both parties with domiciliary custody awarded to the mother, Shaunn

Caillier-McCorvey.

Both parties are practicing attorneys, and the record contains four

volumes of documents, five bound volumes of exhibits including the records of two

previous appeals, as well as large envelopes of exhibits, indicating a contentious

divorce, and property and custody battles between the parties. At some time during

these proceedings, Defendant Derriel McCorvey married Kia Harden, and Plaintiff

Shaunn Caillier-McCorvey married Kia Harden’s former spouse, Michael Harden.1

The Hardens had three children, who became the step-children of both parties herein.

The three Harden children are primarily domiciled with their mother and the

Defendant, wherein Kia Harden McCorvey is their domiciliary parent.

On June 3, 2003, having already issued verbal orders in chambers

regarding racial slurs in the presence of the child, Judge James T. Genovese rendered

a written Judgment on Child Custody/Visitation ordering the parties to avoid racial

comments or slurs regarding the child or the child’s effects.

On February 23, 2004, Judge Genovese issued an order finding

Defendant in contempt for willful disobedience of a preliminary injunction regarding

distribution of community funds. He was sentenced to pay a fine and serve fifteen

days in the St. Landry Parish jail (suspended under one-year probation).

On May 3, 2004, Ms. McCorvey filed a Motion for Contempt, to Restrict

Inappropriate Activities in the Presence of the Minor Child and to Restrict Visitation.

1
For ease of identification, Ms. Harden, the Plaintiff, will be referred to in this opinion as
“Ms. McCorvey,” her surname which appears in the caption of the record.

2

Her contempt motion was based upon Mr. McCorvey’s alleged violation of the

above-referenced June 3, 2003 written order of Judge Genovese, as well as his

previous verbal orders in chambers, to avoid racial, ethnic, or prejudicial comments

or slurs. Plaintiff also sought a judgment ordering Defendant to refrain from

intentionally and willfully exposing the minor child to music which contains sexually

explicit lyrics and to restrict the Defendant’s visitation with the minor child. Judge

Aaron Frank McGee granted Plaintiff’s Motion for Contempt but deferred penalties

and reduced Defendant’s visitation in a judgment dated September 9, 2004.

On May 20, 2004, Defendant filed a Motion and Order to Decrease Child

Support2 and to Expand Parental Custody. He also filed a Motion and Order to Strike

and for Sanctions against Plaintiff and her attorney, arguing that they had included

scandalous, indecent, and profane language in the pleadings and had attached “naked”

photographs as exhibits. Judge McGee denied Defendant’s Motions and restricted

rather than expanded visitation, pursuant to his September 9, 2004 judgment.

After the recusal of two trial court judges, and an attempt to recuse a

third, Mr. McCorvey filed a Motion for Change of Venue. Judge McGee heard the

Motion for Change of Venue along with the above motions in June 2004, denying the

venue motion from the bench. Judge McGee did not include the venue ruling in his

written judgment of September 9, 2004, but the venue motion is deemed denied and

addressed herein.3 It is from the above rulings of Judge McGee that this appeal is

brought by Defendant, Derriel McCorvey.

III.

2
The issue of reduction in child support is not on appeal herein.
3
See Mabry v. Mabry, 522 So.2d 699 (La.App. 5 Cir. 1988) (judge ruled from bench denying
alimony, but written judgment was silent as to claim; claim for alimony was deemed denied and,
accordingly, was addressed by court of appeal).

3

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two

tiered test must be applied in order to reverse the findings of the trial court:

1) the appellate court must find from the record
that a reasonable factual basis does not exist
for the finding of the trial court, and

2) the appellate court must further determine that
the record establishes that the finding is
clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more

reasonable than the fact finder’s, reasonable determinations and inferences of fact

should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330

(La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s

findings are reasonable based upon the entire record and evidence, an appellate court

may not reverse said findings even if it is convinced that had it been sitting as trier

of fact it would have weighed that evidence differently. Housely v. Cerise, 579 So.2d

973 (La.1991). The basis for this principle of review is grounded not only upon the

better capacity of the trial court to evaluate live witnesses, but also upon the proper

allocation of trial and appellate functions between the respective courts.

4

Change of Venue

Mr. McCorvey, an attorney representing himself on this issue, contends

that the trial court erred in denying his Motion for Change of Venue under La.Code

Civ.P. art. 122, which provides as follows:

Art. 122. Change of proper venue

Any party by contradictory motion may obtain a
change of venue upon proof that he cannot obtain a fair and
impartial trial because of the undue influence of an adverse
party, prejudice existing in the public mind, or some other
sufficient cause. If the motion is granted, the action shall
be transferred to a parish wherein no party is domiciled.

Mr. McCorvey argues that his former wife, the Plaintiff herein, Ms.

McCorvey, now Harden, is an attorney in St. Landry Parish and that this fact will

prevent him from obtaining a fair result in that parish. However, he fails to offer

evidence of any unfair dealings as a result of her employment. Instead, Mr.

McCorvey complains that two of the four judges of the Twenty-Seventh Judicial

District Court and one hearing officer have been removed from hearing matters in this

proceeding due to conflicts or potential conflicts with witnesses, parties, or attorneys

in the case. As support for his argument that he is being denied impartial

proceedings, he offers details of the various recusals of the judges and hearing officer.

More specifically, Judge Alonzo Harris recused himself on July 3, 2002

because he had consulted with the parties on their prenuptial agreement and was

expected to be called to testify regarding same. Judge James T. Genovese recused

himself to avoid the appearance of impropriety because his campaign manager had

performed some work for Ms. McCorvey. Mr. McCorvey sought removal of Hearing

Officer Otis Lomenick due to a remark allegedly made by Mr. Lomenick during an

unrelated conference and subsequently reported to Defendant. The alleged remark

was, “I just can’t stand him.” While the hearing officer was not officially or formally

5

recused, it was determined that all proceedings in this matter would by-pass him.4

Accordingly, rather than providing evidentiary support for a change of venue, the

recusals tend to support a position that any potential bias has indeed been removed,

and further indicate that everything is being done to ensure that Mr. McCorvey

receives fair and impartial proceedings in his case.

Ms. McCorvey argues that the assignment of error on venue should be

deemed abandoned where Defendant failed to brief the issue pursuant to Uniform

Rules, Court of Appeal Rule 2-12-4. This rule provides in pertinent part that

Defendant’s brief must contain an argument confined strictly to the issues of the case,

free from unnecessary repetition, giving accurate citations of the pages of the record

and the authorities cited. Also, the argument must include a suitable reference by

volume and page to the place in the record which contains the basis for the alleged

error. Otherwise, the court may consider as abandoned any specification or

assignment of error which has not been briefed. See Hansel v. Holyfield, 00-62

(La.App. 4 Cir. 12/27/00), 779 So.2d 939, writs denied, 01-276, 01-279 (La. 4/12/01),

789 So.2d 591.

In the present case, the argument of Mr. McCorvey on the issue of

change of venue is deficient. He did not state which other venue he wishes to access

in his appellate brief, or in his oral argument, or in his original Motion for Change of

Venue. The motion consists of one page and one paragraph of argument, contains

only one clear reference to the record, and that reference cites to the order of recusal,

rather than to any facts upon which the change of venue could be based. Likewise,

Mr. McCorvey’s brief on appeal relies almost exclusively on the recusals and cites

no case law in support of the change of venue.

4
Defendant also attempted to recuse Judge Aaron Frank McGee. Defendant’s motion was
heard by Judge Donald W. Hebert on May 20, 2004, and subsequently denied. That ruling is not
being appealed herein.

6

While we find Mr. McCorvey’s arguments sorely lacking, he did cite a

basis in law for a change of venue, La.Code Civ.P. art. 122. Accordingly, under the

present circumstances, where we have other more compelling grounds to deny the

venue change, we will not base our decision on a failure to brief under the Uniform

Rules, Court of Appeal Rule 2-12-4. We now turn to the issue of evidentiary support.

Ms. McCorvey argues that Mr. McCorvey failed to support his argument

for change of venue with evidence of any kind. At the hearing on his Motion for

Change of Venue, Mr. McCorvey presented nothing more than a brief oral argument

before the trial judge. Ms. McCorvey’s counsel then asked for a dismissal, stating

that Mr. McCorvey had not called witnesses or adduced proof of any kind to support

his claim and, therefore, failed to carry his burden under Article 122, which requires

“proof that he cannot obtain a fair and impartial trial.” Ultimately, the trial court

agreed. Ms. McCorvey cites Deville v. Leonards, 457 So.2d 311 (La.App. 3 Cir.

1984). There, this court held:

Under La.C.C.P. Art. 122, a change of venue is
discretionary with the trial judge and will not be disturbed
absent a clear abuse of discretion. Pursuant to this article,
the mover has the burden of showing sufficient cause why
he is unable to obtain an impartial trial in the court of
original venue. Plaintiff’s unsupported allegation that he
is disliked in Acadia Parish is insufficient to meet that
burden. Nor does the fact that ten attorneys refused to take
his case suggest that he is disliked or unable to obtain a fair
and impartial trial. We find no abuse of the trial judge’s
discretion in denying plaintiff’s motion for change of
venue.

Id. at 312.

Similarly, in the present case, Mr. McCorvey has made unsupported

allegations that he is disliked and that his wife’s position as an attorney will result in

unfair proceedings in an effort to show abuse of discretion on the part of the trial

7

court. He has not presented deposition testimony, affidavits, or any form of evidence

or jurisprudence in support of his motion for a change of venue.

In Bennett v. Sedco Maritime, 520 So.2d 894 (La.App. 3 Cir. 1987), a

drilling rig owner in a Jones Act suit argued that because the plaintiff’s counsel was

the district attorney in the parish where the matter was to be tried, the rig owner

would not receive an impartial trial there. However, jurors questioned about the

counsel’s position as district attorney all stated in so many words that, in their eyes,

he was just “another lawyer.” Accordingly, this court held that the rig owner was not

entitled to a change of venue under Article 122.

Similarly, in the present case, where the Plaintiff, Ms. McCorvey, is an

assistant district attorney, and where the case is a judge-tried case, the trial judge

stated the following:

THE COURT: I do not disagree with the technicalities
you are raising, Mr. Andrus, okay. Proof requires Proof.
I will say this however, now addressing Mr. McCorvey . .
. if your argument were testimony, I would still deny the
change of venue, the reasoning being that the Court does
not find that there is the possibility of undue influence. . .
. First of all, it’s not a jury trial, it’s a bench trial.
Secondly, if all four Judges of the 27th Judicial District
Court had recused themselves, it still does not mean there
would have been a change of venue. I think Mr. Andrus is
correct in that . . . and pursuant to directions from the
Supreme Court, what we do in those situations is we ask
the Supreme Court to appoint another Judge to hear the
case. . . . but some of your argument, in terms of undue
influence, also falls kind of under the recusal motions,
which we’ve already dealt with. You are correct in that
Judge Harris recused himself, Judge Genovese recused
himself. I did not recuse myself. There was a hearing.
Judge Hebert concluded that it was appropriate for me to
continue with the case and I’m doing that. . . . one of the
reasons that I did not recuse myself was that I do not feel
the influence that concerns you, as the moving party on
venue. And I’m stating all these things because I want the
record to reflect what’s going through my mind as I
address this issue. The 27th Judicial District Court, unlike
most of the districts, is divided into four judicial districts.
. . . We think in terms of Divisions A, B, C, and D. I am
8

the election district for Division B, which is election
district number . . . four, I believe. . . . The bottom line is
that I certainly am aware of the fact that Larry Caillier is
the Chief of Police for the City of Opelousas. The City of
Opelousas does not vote in the election district for Division
B, so Chief Caillier never has had and never will have,
unless the legislature changes the law, any influence in the
election of the Division B Judge. Additionally, when I ran,
I ran without opposition . . . so I never had any occasion to
even go ask the Chief for any help. . . . I’ve already
announced that I’m stepping down in February of next
year. . . . So, my point is that the concern of undue
influence by Chief Caillier is simply not there. As relates
to the fact that Mrs. Harden, the former Mrs. McCorvey, is
with the District Attorney’s Office, I am also the same
Judge that handled the divorce litigation . . . involving the
senior member of the District Attorney’s Staff. . . . I would
handle the domestic of the District Attorney, if that’s what
it took. I do not duck things just because they involve
people that are attorneys, or public officials . . . . I’ll do
what I have to do. I do not feel as though there’s any
concerns, any undue influence. If there would have been,
I would have stepped down a long time ago. . . . So I say
those things . . . so there’s a complete record made in terms
of why we’re proceeding and why I’m denying the Motion
for the change of Venue. . . .

In addition to the trial court’s specific remarks regarding his impartiality,

this court notes the well-settled presumption that judges are deemed to be impartial

absent proof to the contrary. State v. Edwards, 420 So.2d 663 (La.1982).

In Faulk v. Schlumberger Well Services, 412 So.2d 162 (La.App. 3 Cir.

1982), an automobile accident suit filed in Cameron Parish, we affirmed the trial

court in denying a change of venue under La.Code Civ.P. art. 122. There, the

defendant argued that an indictment for negligent homicide had been sought against

him in that parish and that the deceased motorist was a police jury member whose

widow had campaigned extensively for election to his vacant seat, resulting in further

publicity being given to the death. We found that there had been no showing of “any

undue influence in favor of plaintiffs or that defendants were prejudiced or that they

did not receive a fair trial.” Faulk, 412 So.2d at 165. We further stated, in view of

9

the judge’s rulings during voir dire and his removal of some jurors on his own

motion, “we hardly see how the trial court could have been more fair.” Id.

Again, in Savoie v. McCall's Boat Rentals, Inc., 491 So.2d 94 (La.App.

3 Cir.), writs denied, 494 So.2d 334, 494 So.2d 542 (La.1986), we carefully reviewed

the record and affirmed the trial judge in denying a motion for change of venue under

Article 122. There, we stated:

Though the defendant maintains that an “intolerable
condition” existed because the plaintiff was the son of the
Sheriff, it failed to show any undue influence in favor of
the plaintiff by which it was unduly prejudiced or denied a
fair and impartial trial. In fact, in its brief, the defendant
admits that it “does not imply that Sheriff Savoie
committed any improper act to exercise an undue influence
over the jurors.” . . .

The defendant has also made no showing that there
was any undue influence or prejudice that operated to his
detriment simply because the jury venire was composed of
two former clients of the plaintiff’s counsel.

Savoie, 491 So.2d at 100.

Similarly, in the present case, Mr. McCorvey himself made statements

that undermine his attempts to obtain a change of venue under Article 122. More

specifically, where he asserted undue influence as a result of his ex-wife’s father’s

position as Chief of Police of Opelousas, Mr. McCorvey argued, “I think his

reputation precedes itself, widely known, you know a mired [sic], grudges held

against.” Accordingly, the reference to grudges held against Chief Caillier operates

to illuminate the fact, as some cases have referenced, that public opinion regarding

a public official can be a double-edged sword. The same theory applies to assistant

district attorneys. That is why voir dire is available in jury trials.

Although Defendant argues at times as if this were a jury trial, the

presiding judge made it very clear, in very specific statements, not only that there was

no undue influence, but why there was no undue influence in this case. Based upon
10

the foregoing, we agree that Mr. McCorvey has failed to meet his burden of showing

prejudice and undue influence under La.Code Civ.P. art. 122.

Moreover, Ms. McCorvey further argued that venue for these

proceedings (divorce and ancillary issues) is jurisdictional and not subject to transfer,

and that even if an agreement were reached to try the case elsewhere, they could not

do that because the proceedings are jurisdictional.

We note that these proceedings were filed in the proper venue in St.

Landry Parish, where the parties were domiciled in a home they owned, constituting

immovable community property. The articles governing divorce and community

property issues, La.Code Civ.P. art. 3941 and La.Code Civ.P. art. 82, respectively,

establish mandatory venue, and child custody article, La.Code Civ.P. art. 74.2,

provides for permissive supplementary venue, all of which prime the general rules of

venue.5 These family law causes of action generally require venue in the domicile of

one of the parties or in the last matrimonial domicile which, in this case, conflicts

with the Article 122 transfer to a parish where no party resides. We have found no

law addressing this conflict. In fact, there are very few cases interpreting Article 122,

even though it originated over forty years ago. In particular, we have located no cases

transferring venue under Article 122 that involve the family law issues of custody,

visitation, community property, and child support.

In some future case, where family law issues are litigated, and where

undue influence under Article 122 is supported in the record, and where no venue is

available to satisfy the requirements of all statutes involved, we will be obliged to

5
La.Code Civ.P. art. 43: “The general rules of venue provided in Article 42 are subject to
the exceptions provided in Articles 71 through 85 and otherwise provided by law.” See also, Kellis
v. Farber, 523 So.2d 843, 845 (La.1988): “The Code of Civil Procedure provides a general rule of
venue followed by various permissive and mandatory supplementary provisions. The general rules
of venue are contained in article 42, the permissive supplementary rules in articles 71 through 77,
and the mandatory supplementary rules in articles 78 through 85. Several other mandatory venue
rules are provided for in other parts of the Code.”

11

resolve the conflict. However, in the present case, because we find that Defendant

failed to prove bias or undue influence or any entitlement to a transfer of venue under

La.Code Civ.P. art. 122, we find it unnecessary to address the jurisdictional venue of

the family law articles. Accordingly, we affirm the trial court in denying Mr.

McCorvey’s Motion for Change of Venue.

Finding of Contempt

The judgment of the trial court states in pertinent part, “Derriel

McCorvey is found guilty of contempt of Court for violation of the verbal Order and

written Order of Judge James T. Genovese signed June 3, 2004 [sic][2003].” Judge

Genovese’s June 3, 2003 written order stated that, “Neither parent shall make any

racial, ethnic, or prejudicial comments or slurs regarding the child, or the child’s

effects in the presence of the child.” Judge Genovese had previously in chambers

verbally ordered the parties not to make racial or ethnic slurs in the presence of the

minor child.

These orders were the result of the mother’s concerns and the belief of

Judge Genovese that it was in the best interest of the child to be reared in an

atmosphere of respect for all cultures and of tolerance for diversity, where that is the

reality of our American society into which she is growing. Because of the offensive

language about to be described, it should be noted at this juncture that the parties

involved are of the same race. The following events led to the ruling on visitation.

On March 17, 2004, the Defendant went to the home of his former

mother-in-law to pick up Darian for the weekend visitation. Darian was a little over

two and a half years old at the time and was clutching one of her favorite dolls from

a Disney animation. The record indicates that the doll was a Caucasian, “Barbie-”

sized doll, representing Beauty from the “Beauty and the Beast” animation. Mr.

12

McCorvey had previously asked Ms. McCorvey why Darian had this “big ole white

doll.” At the time of this exchange, Mr. McCorvey took the doll away from his little

girl and discarded it under the carport. The grandmother came out of the house with

Darian’s overnight bags, saw the child in distress, saw and retrieved the doll, and

asked whether Darian intended to take the doll with her. Darian said yes, but Mr.

McCorvey objected, saying that she could not have “those kinds of dolls” at his

house. The child began crying and reaching for her doll,6 and the custody exchange

was made very difficult.

On March 25, 2004, Mr. McCorvey again went to pick up Darian for

visitation. Darian had various toys of her choosing for the weekend. This time, Mr.

McCorvey objected to a miniature playhouse that depicted white children inside.

Over the child’s protests and the mother’s efforts to make the transition easier for

Darian by giving the toy back to her and then asking Mr. McCorvey’s wife to take it

in the car, Mr. McCorvey repeatedly took the toy, even from his wife, and made a

show of discarding it under the carport. Subsequently, at this same exchange, Mr.

McCorvey cursed Darian’s new stepfather, Michael Harden, calling him a “bitch-ass

nigger” and a “pussy ass nigger” and threatening him with an “ass whipping.” All of

this occurred in the presence of Darian and Michael Harden’s three children who

were in Mr. McCorvey’s car with their mother, Kia Harden McCorvey. These events

were witnessed and testified to by Plaintiff, her husband, the maternal grandmother,

the housekeeper, and the housekeeper’s daughter.

6
The court notes that the photographs submitted by Ms. McCorvey as exhibits in this matter
depict the little girl’s room with a large majority of African-American dolls, including “baby” dolls
and “Barbie” dolls, and a few “white” dolls, indicating that the child is living in an environment with
her mother that celebrates her own culture without prohibiting the diversity that Judge Genovese
sought to instill in the best interest of the child in today’s society.

13

Mr. McCorvey argued that Judge Genovese’s order requires that he not

make racial slurs regarding the child or the child’s effects, and that he did not use

racial slurs when referring to the child or her effects. However, the record indicates

that the verbal orders of Judge Genovese had previously prohibited the language used

and the events that occurred while in the presence of the child. Judge Genovese was

called as a witness and was asked to read the written order into the record, and to

clarify the broader verbal order that he gave the parties. Pursuant to questions by

Plaintiff’s attorney, Alex Andrus, Judge Genovese testified as follows:

Q. Your Honor, in addition to that [written order], do
you recall having a conference in chambers with the
parties, including Derriel McCorvey . . . regarding
an admonishment not to make any racial slurs in the
presence of the child?

A. I did have an extensive pre-trial, preliminary
conference, on those issues in chambers with both
Ms. McCorvey and Mr. McCorvey.

Q. And Your Honor, had there been evidence regarding
allegations of racial remarks being made by the
parents in this case?

A. Previous thereto, there was testimony elicited . . . .
and there were complaints made by Ms. McCorvey
that there were certain statements made . . . position
taken regarding racial and ethnic matters with the
child of tender age. . . . There were allegations that
the child was being restricted in the manner in which
the child was being raised . . . contrary to racial
equality, which was of concern to me . . . . some
reference to dolls . . . Some concerns by the mother
that the daughter had to be raised in a certain
environment, and that the African-American
influence would have to be maintained and
preserved always, at all times, and that the child was
not to be exposed to any diversity whatsoever. . . .
I wanted to make sure that the child had full
exposure to all cultures, all races . . . . That was a
deep concern of mine. . . .

Q. And did you admonish the parties not to make any
racial slurs or ethnic slurs in the presence of the
child?
14

A. Absolutely. I never condone, at any time, any type
of activity like that. It’s probably more than an
admonition, Mr. Andrus. I take that . . . very
seriously, especially [in] a custody matter. . . . I
wanted the child to have a good, wholesome
upbringing so that the child would be exposed to
society as society is, not in some tunnel vision type
approach. . . .

Q. Your Honor, was that order communicated directly
to both parties?

A. Well, I told them that in my chambers. Point blank.

Judge Genovese was then asked to read silently the offensive racial

language used by Defendant against the child’s stepfather in the presence of the child,

and to state whether he would consider that language to be within the ambit of his

order prohibiting racial slurs. Judge Genovese responded, “Yes . . . . that type of

language would constitute a racial slur, and would constitute a very demeaning,

debasing statement that would be very detrimental to the upbringing of this child, and

. . . this type of activity would not be allowed in the presence of the child.” He further

testified that the language complained of was exactly what he intended to prohibit,

“any type of racial slurs, any type of activity that would be a violation of ethnicity”

because such activity would be detrimental to the best interest of the child.

A contempt of court is any act or omission tending to obstruct or

interfere with the orderly administration of justice, or to impair the dignity of the

court or respect for its authority. La.Code Civ.P. art 221. A direct contempt of court

is one committed in the immediate view and presence of the court. La.Code Civ.P.

art. 222. A constructive contempt of court includes an act of “[w]ilful disobedience

of any lawful judgment, order, mandate, writ, or process of the court. . . .” La.Code

Civ.P. art. 2242. Based upon the orders of Judge Genovese in 2003, the events in

March of 2004, and the evidence adduced, Judge McGee did not err in finding Mr.

McCorvey in contempt. Mr. McCorvey argues that he and his current wife testified
15

that those events did not occur but that Judge McGee chose to believe Plaintiff and

her four witnesses instead. However, it is well settled that the trial court is in the

better position to evaluate the testimony before him.

Failure to Strike Objectionable Language and Photographs

Mr. McCorvey filed a Motion and Order to Strike and for Sanctions

against Ms. McCorvey and her attorney, stating that in Ms. McCorvey’s Motion for

Contempt they had included scandalous, indecent, and profane language. The

language at issue is the above-referenced racial slurs and threats made by Mr.

McCorvey toward Darian’s stepfather, Michael Harden. Ms. McCorvey testified

regarding the lengthy consideration she gave to the drafting of the Motion for

Contempt and the inclusion of the foul language used in the presence of Darian and

the children of Michael Harden. Ms. McCorvey testified that she consulted other

attorneys about the propriety of including the quoted language and determined that

the language was relevant, germane, and necessary to demonstrate to the court Mr.

McCorvey’s violation of the direct orders of Judge Genovese.

While Mr. McCorvey accuses Ms. McCorvey and her attorney of

character assassination, Ms. McCorvey argues that the language used does not

describe her ex-husband; rather, it recites verbatim what Ms. McCorvey and four

witnesses heard Mr. McCorvey say in the presence of Darian and the Harden

children. Moreover, Ms. McCorvey testified that under Louisiana’s fact pleading

procedure, the inclusion of the language was appropriate. In his reasons for

judgment, Judge McGee stated:

The Court is satisfied that the language of petitioners
pleadings, while being somewhat “graphic”, are not
inappropriate and is not unlike the testimony the Court
receives from witnesses during a trial when the witness is
hesitant to use the actual language spoken, in relating what
the witness might have heard someone say, such as the “F
16

word”, the “N word”, “S O B”, etc. The Court is of the
opinion that the evidence received by the Court
substantiates the allegations and that the allegations may
well have been subject to objections had not the specifics
been alleged.

Mr. McCorvey further argues that Judge McGee erred in failing to strike

the scandalous, indecent, “naked photographs” from the CD jacket insert of the group

“Outkast” which Ms. McCorvey attached as an exhibit to her trial court brief without

alleging that Mr. McCorvey had shown them to his daughter. The testimony indicates

that the pictures were attached for illustrative purposes. Ms. McCorvey testified that

when her two-year-old daughter came home singing the lyrics to the music of this

group, and given Ms. McCorvey’s discovery of Mr. McCorvey’s sexual behavior with

his secretary, and group sex with a stripper, and casual sexual exploits with other

women, she did not believe that Mr. McCorvey had the “ability to discern” when he

was doing something even unintentionally. She testified that the group “Outkast”

represented Mr. McCorvey’s errant lifestyle, behavior that she had proved in court,

that the music denigrated marriage, and it was not appropriate for her daughter to be

exposed to it and learn the lyrics.

Ms. McCorvey articulated cogently the link between the group, the

music, the photographs, the care of her daughter, and the fact that because of Mr.

McCorvey’s lifestyle, her daughter was now “bounced from house to house.” She

stated that she could no longer sit back and let things happen to her daughter; that the

music was disrespectful and representative of Mr. McCorvey’s behavior; that the

pictures were attached to her brief to show the judge what the group was all about.

Given the facts and circumstances in this case and the nature of these proceedings,

we do not find an abuse of discretion.

17

Motions on Visitation

In a proceeding for divorce or thereafter, the court shall award custody

of a child in accordance with the best interest of the child. La.Civ.Code art. 131. Mr.

McCorvey cites the joint custody article, La.R.S. 9:335, which in pertinent part

requires an award of joint custody except for good cause shown, frequent contact with

both parents, and equal sharing of physical custody to the extent it is feasible and in

the best interest of the child. However, where Mr. McCorvey deems his own

“parental authority” paramount, as the testimony shows, he does not cite to subsection

(B)(3) of that article, which provides that the domiciliary parent shall have authority

to make all decisions affecting the child unless ordered otherwise. Moreover, all

major decisions made by the domiciliary parent concerning the child are presumed

to be in the best interest of the child. La.R.S. 9:335B(3).

“Under La.Civ.Code art. 131, decisions regarding custody of the

children are made with the best interest of the child being paramount.” Aucoin v.

Aucoin, 02-756, pp. 5-6 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245, 1249. Under

La.Civ.Code art. 134 a number of factors are listed for consideration in making the

best interest determination. In Hawthorne v. Hawthorne, 96-89 (La.App 3 Cir.), 676

So.2d 619, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365, we held that these

factors are merely suggested factors; the trial court is free to use other factors to make

its determination; the court should consider the totality of the facts and circumstances

in its analysis of the best interest of the child. Id. “Additionally, the list is not

exclusive and the trial court is to be given great discretion as to the weight of the

relevant factors used. La.Civ.Code art. 134, Comment (b).” See Aucoin, 834 So.2d

at 1249.

The burden of proof on a party seeking to modify a prior permanent

custody award is dependent on the nature of the underlying custody award. Custody
18

awards are commonly made in two types of decisions. The first is through a

stipulated judgment, such as when the parties consent to a custodial arrangement.

The second is through a considered decree, wherein the trial court receives evidence

of parental fitness to exercise care, custody, and control of a child. Evans v. Lungrin,

97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731. See also, Aucoin, 834 So.2d 1245.

“When a trial court has made a considered decree of permanent custody

the party seeking a change 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).

Also, “there must be a showing of a change in circumstances materially affecting the

welfare of the child before the court may consider making a significant change in the

custody order.” Id. at 1194 (emphasis added).

However, “[i]n cases where the original custody decree is a stipulated

judgment, such as when the parties consent to a custodial arrangement, and no

evidence of parental fitness is taken, the heavy burden of proof enunciated in

Bergeron is inapplicable.” Aucoin, 834 So.2d at 1248 (emphasis added), quoting

Hensgens v. Hensgens, 94-1200, pp. 6-7 (La.App. 3 Cir.), 653 So.2d 48, 52, writ

denied, 95-1488 (La. 9/22/95), 660 So.2d 478. See also, Evans, 708 So.2d 731.

Where the Bergeron burden is inapplicable, the party seeking to modify the custody

arrangement need only prove a change in circumstances since the original decree and

prove that the new custody arrangement would be in the best interest of the child.

Aucoin, 834 So.2d 1245; See also, Weaver v. Weaver, 01-1656 (La.App. 3 Cir.

5/29/02), 824 So.2d 438; Hensgens, 653 So.2d 48; Evans, 708 So.2d 731.

19

In this case, even though the parties had difficulty in agreeing on the

specifics of visitation in the joint custody plan, and the parties ultimately left the

drafting of the plan to Judge Genovese, the resulting custody decree was a “hybrid”

judgment wherein the parties consented to a custodial arrangement with Ms.

McCorvey designated as the primary domiciliary parent. The judgment drafted by

Judge Genovese was not based upon parental fitness. Thus, the heavy burden of

proof rule enunciated in Bergeron was not applicable when Judge McGee heard

argument on modifying Judge Genovese’s custody order. Moreover, Judge McGee

did not make significant changes in the custody order, leaving domiciliary custody

with the mother and making minor reductions in the father’s visitation.

In the present case, we find that the change in circumstance requirement

is fully satisfied by the escalating pattern of negative behavior on the part of Mr.

McCorvey, evidenced by the events leading to the motion and finding of contempt,

by a cumulation of incidents of very poor judgment on Mr. McCorvey’s part, and by

recent testimony and judgments illuminating past behavior. Judge McGee, in

modifying Judge Genovese’s joint custody order, issued written reasons as follows:

It is obvious that this judgment, signed June 3, 2003, was
actually drafted by the Judge during a time when the
parties had a more “amicable relationship”. . . . As a result
of a recusal by Judge Genovese (and the other two judges
of the 27th Judicial District Court) the undersigned is called
upon to decide whether the parties have violated the
provisions of that Order, and whether the Order should be
expanded, or restricted, or maintained as is.

In connection with the issues presented, the Court
has had the opportunity to hear lay testimony as well as
expert testimony, and perhaps even more importantly, has
had the opportunity to hear and see the litigants, both of
whom are practicing attorneys. In this Judge’s thirty years
as a practicing attorney and almost ten years on the bench,
I cannot recall any domestic litigation which has risen to
the level of hostility such as I have witnessed herein. On
the one hand the Court would characterize the mother,
Shaunn Caillier-McCorvey Harden, as apparently being an
20

individual who started off her relationship with her
husband, Derriel C. McCorvey, as one who was quite
docile and submissive. Now, for obvious reasons, she has
become an individual best described by the phrase “I am
sick and tired of it and I am just not going to take it
anymore.” The defendant on the other hand, during the
entirety of the trial thus far, appears to be an individual
who unfortunately has brought his “football mentality” into
play, both during and after the marriage. The evidence
against the defendant, from the testimony of the witnesses,
as well as the Court’s observation of the defendant in open
court, leads the Court to but one conclusion . . . that the
defendant is domineering, controlling, possessive, and
selfish. His words, his body language, his facial
expressions, his tone of voice, etc., suggests that without
any doubt whatsoever the defendant is overly aggressive
and combative. The Court is satisfied that the defendant
was in all likelihood the aggressor in the incident between
himself and the plaintiffs’ current husband, Michael
Harden, that the defendant probably did and does have
problems with his daughter playing with “white dolls”, and
that the defendant probably was guilty of exposing his
daughter to “so called music” that is hardly fit for adults,
most [sic] less babies (and in the future adolescents). The
defendant does not have his child’s best interest at heart in
his actions and attitudes thus far, and it is obvious that he
wishes to dominate her every thoughts, words, and deeds,
leaving no room for the more responsible/balanced
upbringing that the mother seeks. The Court senses that
the defendant is more interested in the “almighty I” than he
is in “what’s best for his little baby girl.” There is no doubt
but that this defendant would benefit from such programs
as the Anger Management Program . . . .

In accordance with the above, the Court finds that
the plaintiff . . . is not guilty of any contempt relative to the
Court’s custody orders, however, the defendant is. In
effect, Mr. McCorvey has not only violated the language of
Judge Genovese’s orders, but he has likewise violated the
“spirit” of same. The Court will defer imposition of
penalties relative to said contempt until the conclusion of
all litigation between the parties. . . . In accordance with
the above, the Court will somewhat reluctantly maintain
the previously ordered joint custody and will certainly
maintain the mother as the domiciliary parent. That having
been said however, the Court will amend the visitation
provisions so as to allow visitation between the child and
the father every other weekend from Friday at 5:00 p.m. to
Sunday at 5:00 p.m. The Court will also adjust the summer
vacation schedule to allow the child to spend one (1) week
with the father during the summer months of June, July,
21

and August, in addition to his regular scheduled weekend
visitation. If either of the three summer weeks falls on the
father’s regularly scheduled weekend visitation, then in
that event the visitation is not to be expanded to nine (9)
days – it being the Court’s opinion that this is too long a
period of time for this young child to be away from her
mother. . . .

All other provisions of the original visitation plan, as
setup by Judge Genovese, not in conflict herewith, shall be
maintained . . .

The record reveals that Judge McGee was more than justified in his

remarks and actually charitable in omitting the details of Mr. McCorvey’s many

transgressions.

Prior to Judge Genovese’s June 3, 2003 custody order, the parties were

evaluated by Dr. Maureen Brennan, a court appointed psychologist. Mr. McCorvey

asserted that the report of Dr. Brennan “recommended a balanced and flexible

visitation schedule, with gradually expanding visitation.” However, she also stated

that it depends on how much conflict there is and how well the child is adjusting to

each parent. Also, at the hearing leading to Judge Genovese’s order of June 3, 2003,

Dr. Kenneth Bouillion was accepted as an expert in the field of clinical child

psychology. He stated that very young children need a normal daily routine with the

most important psychological factors being security and continuity of care with the

primary caretakers. He said the parents must communicate really well and put the

child’s interests first because the child picks up on the conflict between these parents.

Dr. Bouillion further stated that equal or near-equal sharing of a child

Darian’s age (one and three quarters years old at the time) would lead to regression

in terms of the immaturity of the child, an increase in clinginess, problems sleeping,

separation issues. He stated that when such children get older, they get a glazed over

look, lose things, leave things at both places, and get washed out emotionally. Dr.

Bouillion intimated that in this case involving conflict and poor communication, he
22

would not be surprised to hear of night crying and regression in toilet training, which

was the testimony herein.

Dr. Bouillion stated that he had read depositions and talked with the

mother. The mother voiced concerns that the father had watched x-rated videos with

the little girl present; she told him about nudity, general vulgarity of speech, skin

color issues, general lack of sensitivity to the little girl’s emotional state. He said that

contrary to Dr. Brennan’s report, he would have made a list of “don’ts” in the report

as to those issues. Dr. Bouillion further stated that he helped write the statute on joint

custody, and he thought the joint custody philosophy at that time was about having

the visiting parent participate more, with short frequent visits, not overnight extended

visits when the child is very young. He stated, “Children just can’t live in two places

very easily when they are that young without some serious consequences.”

Since the 2003 custody order of Judge Genovese was issued, Mr.

McCorvey has been found in contempt twice. The second instance of contempt

involved the order regarding racial slurs and profanity and threats in the child’s

presence. This behavior was witnessed and testified to by five adults. Mr. McCorvey

has also demonstrated an inflexibility regarding the child’s toys and his views on

cultural diversity, upsetting the child, making the exchange of custody very stressful,

all indicating that he does not have the best interest of the child at heart. He has

exposed his child to radio music by the group “Outkast” and told her that the song

“Hey Ya” is a “good song” in spite of the fact that the song advocates sex in the back

of a car using explicit, sexual, slang terminology unfit for a child and offensive to the

sensibilities of many adults. Yet, this little girl was learning the lyrics.

While Mr. McCorvey denies having ever purchased the music, the CD’s

were entered into the record, and this court has observed other titles such as “Spread”

and “Where Are My Panties.” The words to these “songs” include profanity and
23

detail exactly what the titles indicate. They are audio pornography. By association,

any father who approves the music of this group for his little girl is exercising

extremely poor, and detrimental, judgment. Given the influence that music has on

children and adults alike, the messages the child will receive by the time she reaches

puberty are ones we fear to contemplate. We will not tread into the mine-ridden field

of censorship or dictate the tastes of consenting adults regarding their individual

affinity for a particular type of music, but the trial court is in the position of deciding

what is in the best interest of this little girl, and Mr. McCorvey’s behavior in this

regard is particularly detrimental to this child. These events are indicative of an

escalating pattern of negative behavior constituting a change in circumstances

sufficient to modify the custody order.

Moreover, there was testimony from the maternal grandmother regarding

the heavy-handedness of the father. She reported that he not only took toys away

from his daughter during an already difficult custody exchange and forbade her to

play with white dolls, but that he also force-fed the little girl, boiled her meat,

evidenced by photographs in the record, refused to take her cereal with him or buy

foods that she liked, refused to buy diapers because there were some already in the

house, even though the wrong size. The grandmother, who kept the child during the

day, also testified that the little girl would not eat meat, a problem the grandmother

thinks is related to the father’s cruel joke about killing her Easter chicks and making

chicken nuggets out of them. While there are no doubt thousands of grandmothers

who disagree with their son-in-laws’ methods of child rearing and child care, the

picture emerging here under this collective testimony is that Mr. McCorvey exercises

very poor judgment where his daughter is concerned, traversing the spectrum from

cruel humor to psychological intimidation.

24

With regard to racial identity, there was testimony indicating Mr.

McCorvey felt his daughter was “too bright” and that she was going to have “to color

up”, that he had a preference as to what color she was, that he preferred that she be

darker-skinned, instead of light-skinned like her mother. The record is replete with

evidence of Mr. McCorvey’s heavy-handedness and transgressions. Additionally, he

has entered into agreements and distributed and converted community funds in

defiance of court orders, has been ordered to pay fines, and has been sentenced to jail

twice for contempt of court. There was testimony that he alienated community

property, that he refused a sale of the family home that one year later sold for

$25,000 less, and that he cost the Plaintiff an associate’s position with a law firm by

intimidating her future employer in public.

In addition to these events, we have new testimony from the two clinical

psychologists, Dr. Brennan and Dr. Bouillion, which led to the current modification

of custody now on appeal. Before testifying, Dr. Bouillion sat through over six hours

of examination and cross-examination of the parties and witnesses in the contempt

issue and the custody issue, and he also observed Mr. McCorvey in the role of

witness, party, and attorney on his own behalf. Dr. Bouillion indicated that Mr.

McCorvey’s examination of witnesses in the courtroom strongly implied that Mr.

McCorvey believed that his parental prerogative should subordinate all other

authority. Dr. Bouillion further testified as follows:

A. . . . . I saw a lot today that I didn’t like. . . . number
one, the issue of the language, the cursing, the
physical posturing that was discussed . . . . that’s
very frightening for a child of this age, and I’d like
to explain a little bit about that, because what I think
is the issue of that kind of physicality and
emotionality between family members that this child
loves, is more strongly impacted on her because of
her age. She’s not quite three years old, she’s able
to understand a good bit, what’s said, but she also
sees the feeling. Witnesses described her being
25

distressed, crying, wanting to bring toys and not
bring toys, and being particularly distressed about
her dad’s opinion, that she was intimidated by his
anger. And the picture that I got is that the father
makes choices and makes decisions about how he
wants things to be at his house, and he’s trying to
keep that clearly separated from the rest of her life,
and she spends more of her time with her mother . .
. and they have different lifestyles and different
selection of toys and different issues, like diversity
or culturalization, and the meaning of blackness and
how black is bright, and how black is black and how
bright is bright, and those issues. Now, what’s
terribly important is that at two years and three
quarters, the process of identification starts to take
place, and there’s something that’s called
incorporation. That’s a very basic thing that occurs
at that time. I’ll give you a good example from my
second son. When he was two years and ten months
old, he started doing this (indicating), taking his left
hand and rubbing his cheek as though he had a beard
like his father. That’s why little kids walk like their
parents, they talk like their parents. That
incorporation is very powerful. This is a little girl
who’s trying to learn how to be a little girl and a
young woman in the world. She has her mother and
the other female figures in her mother’s family, and
she has her dad, also, talking to her about how she
should act as a little girl, and what she should play
with and what she should do. So that process of
incorporation is sort of the foundation of
identification. It’s also the foundation of what we
call adequacy or positive self-esteem. The very
basis of self-esteem is being set now. Children at
two years of age, who have this kind of dissidence,
these kinds of differences of opinion between their
parents, it leads to problems of self-doubt and
problems of autonomy, the inability to make choices
. . . . Three years of age we have identification.
Little boys learn how to be little boys, little girls
learn how to be little girls. They also have a sense
of conscience, they know the difference between
right and wrong, they make choices, and that’s when
they start to have initiative, interaction in the world.
And what I was distressed by the most was that . . .
I didn’t hear enough talk about the child’s wishes
and concerns being expressed, and we want the child
to be able to choose toys and select things. And
obviously . . . in transition . . . moving from one
family to the other, the child is more comfortable if
she can take items, clothes, her favorite tennis shoes,
26

her favorite toys, whatever she’s into playing at that
moment, to the other home. It facilitates that. We
call that transitional objects . . . . They need that to
make them make that transition and feel
comfortable. . . . And so she’s trying to make
choices and be comfortable and secure and I was
distressed that I heard a lot of . . . testimony about
crying when she left and the difficulty that they have
in separating from the mother . . . and going with the
dad. My big concern was this isn’t just humor. This
isn’t funny. It’s not about white dolls or black dolls.
It’s more about all these important psychological
processes that are being established and I was sitting
there thinking, if I’m in practice in ten years, I’m
going to see this kid when she’s thirteen, and she’s
going to be acting out . . . . She’s going to rebel . . .
. I’m very distressed about that . . . . The parents
need to get together on what is African/American,
what is that and you know, this is a diverse society.
We live in America where we’re all turning brown,
you know, and we have to learn to be comfortable
with each other, and let her choose her own identity.
The dad can’t force it on her . . . We can’t change
the color of her skin. She is what she is. . . . I was
really concerned that this is a fight about what kind
of female we’re going to have. And it’s just starting
and this . . . is serious, because what we do at two
and a half and three and four, determines so much
about what’s going to happen when she hits puberty
and God forbid the middle of adolescence, when
she’s fifteen, sixteen, thinking who am I, where do
I come from. . . . I guess I’m emotional about this,
but as a child psychologist, I didn’t like sitting
through this stuff for six hours, and it wasn’t fun and
games to me at all. This is serious. I’ve been in
practice thirty years, and I’ve lived to see this
through generations, and I don’t like it. And these
are intelligent parents, they’re well educated, and I
feel strongly that the Court should order them to co-
parenting classes . . . find a professional that they
can work with.

Dr. Bouillion further testified that the chest-to-chest and nose-to-nose

confrontation described by the witnesses, the physicality of it, and the violence of the

words would terrify a child of this age and is clearly detrimental to her development.

He stated that the conflicts stop her development, she gets anxious and frightened,

confused about what she can and cannot bring. She cannot use the transitional
27

objects that make her feel secure, so she has to somehow think how to cope. Thus,

a child normally just placates the aggressor which results in a split personality; she

becomes one way at one house and another way at the other house. Dr. Bouillion

stated that she sounded like a beautiful little girl with wonderful things going for her

but the problems are serious. He further testified regarding the language and

confrontational behavior:

A. The belligerence and then the “N” word. I mean
that’s about as hard as you can put somebody down,
from one black male to another.

Q. And then to emasculate them with the words “you’re
hiding behind women.” . . . . What is the effect of
that?

A. That men are more powerful than women and that
men should rule the world. It’s like the caveman
philosophy sort of.

Q. What effect does that have on the development of a
three year old girl?

A. As a girl . . . it makes her doubt herself, slows her
development down, and impacts her ability to make
choices, impacts her self-esteem or adequacy. This
can’t keep going on.

Dr. Bouillion further testified that the lyrics of the song “Hey Ya” were

well beyond what a child should hear and not a good role model for a little girl in our

society. Judge McGee, as Judge Genovese before him, questioned Dr. Bouillion

about specifics, trying diligently to fashion an order that would reflect the best

interest of the child. Dr. Bouillion stated that the exchange is not the time to sort out

problems, that the child should take transitional objects, whatever she is close to at

that point in time, to make her feel more comfortable and secure. In spite of all of this

testimony, Mr. McCorvey repeatedly cross-examined Dr. Bouillion regarding

Defendant’s own “parental authority,” indicating an unreasonable persistence and

28

determined refusal to consider expert opinion regarding the best interests of his

daughter.

Regarding custody, Dr. Bouillion testified that Mr. McCorvey’s

Thursday to Sunday visitation every other weekend and an overnight visit mid-week

in the off week was instituted too soon for a child that young. He stated that under

the best circumstances, where you have intelligent, well-educated parents who live

close together, and: (1) minimal conflict between the parents; (2) cooperation; and,

(3) communication between the parents, then extensive visitation is preferable at age

six or seven. If all factors are present, in grammar school one moves toward a 60/40

child-sharing schedule and perhaps a 50/50 schedule in junior high school. However,

in the present case, Dr. Bouillion stated, you have intelligent, educated parents, but

none of the three factors.

Dr. Maureen Brennan, who examined the parties prior to Judge

Genovese’s order and issued a psychological report, gave live testimony at the latest

custody hearing before Judge McGee. Mr. McCorvey examined Dr. Brennan as

follows:

Q. Okay, okay. Dr. Brennan, if I told you that, that
there has been, uh, no problems, uh, with the, uh,
care exercised by me, during my visitation with my
daughter, would you be opposed to the expansion of
additional one day during the week, uh-uh-uh, with
my daughter?

A. As I indicated to you, I haven’t seen your daughter,
and you know, in general . . . the rule of thumb is
that any increase is gradually. It comes when there
are no problems, expands with the age of the child.
I told you that I don’t have problems adding some
days. I have real difficulties with a very young
child, and this child is till [sic], as I understand, very
young – three last week. . . . expanding overnights,
you know, for that in between time . . . . in between
weekend visits, is a problem to me. I don’t think
kids need that – to live out of a suitcase type thing.
...
29

Dr. Brennan testified repeatedly that she could not make

recommendations without knowing what was going on, and that given the fact that

they were back in court, “there’s probably still a lot of conflict which concerns me.”

Judge Genovese issued a four-page custody order, setting forth a specific

visitation schedule for regular visitation and summer visitation, and a daily and

hourly schedule for holidays including Christmas, Easter, Thanksgiving, Mardi Gras,

Martin Luther King Day, Mother’s Day, Father’s Day, and the child’s birthday.

Judge McGee modified only the regular and summer visitation and upheld all other

provisions of Judge Genovese’s order “not in conflict herewith.” In fact, Judge

McGee increased the summer visitation.

More specifically, in June 2003, Judge Genovese awarded the father two

weeks of summer vacation with the child: one week in July, and one week in August.

This visitation was to prime all other regular visitation. By contrast, Judge McGee

awarded the father three weeks of summer vacation with his daughter: one week in

June, one in July, and one week in August. However, because of the testimony he

heard, Judge McGee was of the opinion that the child was too young to be away from

her mother for an extended period of time, and he ordered that Mr. McCorvey’s

summer vacation weeks could not be taken alongside his regular weekend visitation

resulting in a nine-day period for the child to be away from her mother.

The only other specific change that Judge McGee made to the custody

order was to reduce the regular overnight visitation by two days. More specifically,

Judge Genovese had awarded Mr. McCorvey overnight visitation every other

weekend, from Thursday at 6:00 p.m. to Sunday at 6:00 p.m.; and on the “off” week,

he awarded the father one overnight visitation from Wednesday at 6:00 p.m. to

Thursday at 6:00 p.m. (altering the exchange time to 5:00 p.m. during the fall

months). Judge McGee’s order maintained the father’s every-other-weekend
30

overnight visitation but set it from Friday at 5:00 p.m. to Sunday at 5:00 p.m., rather

than Thursday to Sunday, and he deleted the one overnight visit in the middle of the

“off” week. These minor changes are consistent with the testimony of the experts

who agreed that overnight visitation by a non-domiciliary parent should be limited

in the cases of the very young, especially under the circumstances of this case.

The standard of review in child custody matters is clear. “The trial court

is in a better position to evaluate the best interest of the child from observances of the

parties and witnesses; thus, a trial court’s determination in a child custody case is

entitled to great weight on appeal and will not be disturbed unless there is a clear

abuse of discretion.” Aucoin, 834 So.2d at 1248, quoting Hawthorne, 676 So.2d at

625, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365. There is no abuse of

discretion in the trial court’s judgment.

IV.

CONCLUSION

Accordingly, because Ms. McCorvey has shown an escalating pattern of

behavior on the part of Mr. McCorvey that is deleterious to the child and constitutes

a change in circumstances sufficient to meet the heavy burden of Bergeron, even

though she is not required to do so, and where she has shown that modifying the

visitation provision in the joint custody order is in the best interest of the child, we

affirm the judgment of the trial court on visitation. Likewise, we affirm the trial court

on the issues of venue and contempt of court for the reasons stated.

AFFIRMED.

31