Shaunn Caillier McCorvey Harden v. Derriel Carlton McCorvey

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-551

SHAUNN CAILLIER (MCCORVEY) HARDEN

VERSUS

DERRIEL CARLTON MCCORVEY

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 02-C-2619-D
HONORABLE DONALD WAYNE HEBERT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Gremillion, J., dissents and assigns written reasons.

Alisa Ardoin Gothreaux
617 W. Canal St.
Church Point, LA 70525
(337) 654-0935
Counsel for Plaintiff/Appellee:
Shaunn Caillier (McCorvey) Harden

Derriel C. McCorvey
Attorney at Law
P. O. Box 2473
Lafayette, La 70502
(337) 291-2431
PRO SE

PETERS, J.

This litigation involves the custody of a minor child born during the marriage

of Shaunn Callier McCorvey (now Harden, and hereinafter referred to as Mrs.

Harden) and Derriel C. McCorvey. In his appeal of the trial court’s judgment

increasing his visitation time with his daughter, Mr. McCorvey seeks visitation rights

over and above those awarded by the trial court. For the following reasons, we affirm

the trial court judgment in all respects.

FACTUAL AND PROCEDURAL HISTORY

The litigants were previously husband and wife, but were divorced on

November 12, 2002. Their marriage produced one child, Darian McCorvey, who was

born on June 25, 2001. The divorce proceedings resulted in a joint custody decree

naming Mrs. Harden as domiciliary custodian, and the particulars of that joint custody

decree as it relates to Mr. McCorvey’s visitation have been the primary focus of this

lengthy litigation.1 The original joint custody plan gave Mr. McCorvey minimal

visitation privileges and provided that “[a]s the child grows and develops, the father

shall be entitled to expanded visitation to the point of a physical sharing of the child

as required by law.”2

The current phase of this litigation began with a motion filed by Mr. McCorvey

in September of 2008 seeking, among other relief, further expansion of his visitation

rights.3 After a November 2008 hearing, the trial court rendered the following

judgment with respect to Mr. McCorvey’s request for increased visitation rights:

1
Issues arising between the parties have been reviewed by this court in a number of opinions,
both published and unpublished.
2
While the litigation between the parties has covered the entire spectrum of family law issues,
our analysis in this opinion will remain limited to the visitation issue only.
3
By this time, Mr. McCorvey’s visitation privileges had been increased to alternate weekends
and one week per month in June, July, and August.

It is Ordered, Adjudged and Decreed that the Rule of Derriel C.
McCorvey for expanded visitation is denied at this time and, as a
predicate for any future consideration of that demand, the parties are
hereby Ordered to participate in co-parenting classes by the
Counselor/Mediators the Rev. Lloyd Joiner Jr. and Dr. Kenneth
Bouillon[sic] with each party to split the payment of the cost payable in
advance. The co-parenting sections [sic] shall commence within seven
days of the rendition of the Judgment and shall conclude at the
discretion of the experts appointed by the Court. The experts may use
their discretion to interview the minor child, Darian, in furtherance of
the co-parenting if they deemed that necessary. At the conclusion of the
co-parenting sessions, and within 10 days thereof, Dr. Kenneth
Bouillin[sic] shall make a written report to the Court. At that time the
Court will then further consider the advisability of expanded visitation
and if warranted, will likely expand it in stages.[4]

Mr. McCorvey appealed that judgment to this court.5

Recognizing that the trial court had left open Mr. McCorvey’s motion for

increased visitation pending the results of co-parenting classes, this court, in an

unpublished opinion, remanded the matter to the trial court for a ruling on the

visitation issue after receipt of the ordered reports. McCorvey v. McCorvey, 09-434

(La.App. 3 Cir. 11/4/09), writ denied, 09-2526 (La. 12/9/09), 23 So.3d 901.

Specifically, this court stated:

[W] remand this matter for the trial court to consider the reports of the
co-parenting instructors, as well as the current schedule of the child,
who is now in third grade. The trial court is further instructed to
consider the longstanding recommendations of both Dr. Bouillion and
the previous trial judges involved in this matter that Derriel is entitled
to a gradual increase in visitation as Darian grows older, to the point
where physical custody is shared equally between the parents.

Id. at p. 4.

Following a January 2010 hearing, the trial court expanded Mr. McCorvey’s

4
Dr. Kenneth R. Bouillon is a psychologist originally retained by Mrs. Harden at the
inception of the litigation in 2002.
5
As is the case with almost all of the trial court proceedings referred to in this opinion, the
matters before the trial court at the November 2008 hearing included issues not directly related to
visitation issues. However, we will limit our historical analysis to only those matters directly
affecting the issue now before us.

2

visitation by giving him an additional non-consecutive week with his daughter in the

month of June and changing the existing schedule from every other Friday at 5:00

p.m. until Sunday at 5:00 p.m. to every other Friday at 5:00 p.m. until Monday

morning, with Mr. McCorvey dropping Darian off at school, or until 10:00 a.m. in the

event Darian does not have school. Mr. McCorvey now appeals, seeking a further

increase of his visitation rights.

OPINION

The law is well settled that the trial court’s finding with regard to custody

matters is entitled to great weight on appeal as it is in a superior position to assess

what the child’s best interests are based on its consideration of the testimony of the

parties and witnesses. AEB v. JBE, 99-2668 (La. 11/30/09), 752 So.2d 756; Miller

v. Miller, 01-356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Therefore, upon review,

the findings of the trial court in custody matters are afforded great weight and the trial

court’s determination will not be disturbed absent a showing of abuse of discretion.

Thibodeaux, v. Thibodeaux, 00-82 (La.App. 3 Cir. 6/1/00), 768 So.2d 85, writ denied,

00-2001 (La. 7/26/00), 766 So.2d 1262. Louisiana Revised Statutes 9:335A(2)(a)

directs that in joint custody plans “each parent shall have physical custody of the

child so that the child is assured of frequent and continuing contact with both

parents.” Equal sharing of time may be warranted if it is in the best interest of the

child. See La.R.S. 9:335A(2)(b) and Brown v. Brown, 96-743 (La.App. 3 Cir.

02/26/97), 692 So.2d 458.

At the January 2010 hearing the trial court took judicial notice of a letter to the

trial court dated June 8, 2009, in which Dr. Bouillon stated:

After the second co-parenting session in which the parents agreed to
gradually begin extending the child’s visitation with the father the

3

mother changed her mind after further consultation with her attorney.
The next two co-parenting sessions proceeded in a positive manner with
good agreements. The parents continue to communicate well with each
other and have obviously made some progress in resolving conflictual
matters.

I would therefore recommend that the court consider approving an
extension of the father’s visits to immediately include an additional one
week of each of the summer months in addition to the father’s current
visitation and that beginning with the next school year this coming
August that the father immediately be given visitation on alternate
weekends from Friday after school until Monday morning before school
as well as Thursday night overnight in the off week as well. I would
recommend that this examiner meet in co-parenting sessions in the fall
of this upcoming year to ensure that Darian’s daily routine is proceeding
in a smooth manner. I do feel that the extension of this visitation is
clearly in Darian’s best interest and I feel certain that she will adjust to
this in a positive manner as well.

Thus, the trial court judgment did not award Mr. McCorvey all of the increased

visitation time that Dr. Bouillon recommended. Mr. McCorvey asserts in his appeal

that he should be awarded the extra two weeks in the summer and the Thursday night

visitation as recommended by Dr. Bouillon.

While acknowledging progress in the four co-parenting classes with Dr.

Bouillon, Mrs. Harden questioned the Thursday overnight visitation based on her

concern that it would be disruptive. She expressed concerns that the extra time would

not be in Darian’s best interests given her demanding school curriculum and Mr.

McCorvey’s lack of involvement with Darian’s school. On the other hand, Mr.

McCorvey testified he is fully prepared to assist Darian with her challenging

homework.6

The trial court, in making its decision to grant Mr. McCorvey less than Dr.

Bouillon’s recommended increased visitation, attempted to draw the distinction

6
The parties testified to other pending issues, but these were not of such a nature as to have
a significant bearing on the trial court’s decision.

4

between its obligation to assess the credibility and character of the parties in the

litigation and our obligation to consider its discretion in making a custody/visitation

decision, by stating that those not present in the trial courtroom are not in a position

“to see the countenance of the individuals” and “to see, the heat rise or not.” In other

words, the trial court is in the best position to make such credibility and character

decisions. We agree with that analysis. In making the decision not to implement all

of Dr. Bouillon’s recommendations, the trial court stated that “[w]hen I said

incremental, and I said gradual, I meant incremental and gradual. When I see that you

come to a point where there’s no heat rising, then we’ll talk about things.”

Considering the record before us, and given the great discretion vested in the

trial court, we find no abuse of discretion in the judgment before us.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects.

We assess all costs of this appeal to Derriel C. McCorvey.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform
Rules, Courts of Appeal.

5

10-551

SHAUNN CAILLIER (MCCORVEY) HARDEN

VERSUS

DERRIEL CARLTON MCCORVEY

GREMILLION, Judge, dissents and assigns written reasons.

Having reviewed the extensive documentary and testimonial evidence I find

the trial court abused its discretion in awarding what amounts to an eight-hour

increase in visitation per month during the school year. The trial court provided no

no justification other than the “rising heat” for such a meaningless increase in

visitation time. Moreover, it does not comport with the “frequent and continuing

contact” required of La.R.S 9:335A(2)(a).

Both parties testified that for the past several years they have worked hard to

put aside their differences and to do what is best for their daughter. Although Shaunn

is very concerned with her daughter’s education and the homework “process” she has

instituted with Darian, I find that Derriel, an attorney, is more than qualified to assist

his daughter with her fourth-grade homework twice a month. Additionally, Dr.

Bouillion, who has worked with the family since the inception of the litigation,

agreed that it was in Darian’s best interest that she be allowed to spend more time

with her father.

Although an expert does not supplant the need for the trial judge, there simply

is not sufficient reasoning as to why this limited increase in visitation would not

benefit Darian. Moreover, Derriel’s “rising heat” in the courtroom could well be

justified by his frustration with this court system due to his inability to see his

daughter on a frequent and continuing basis. Accordingly, I find it is in Darian’s best

interest to increase her contact with her father, and I would adopt the

recommendations set forth in Dr. Bouillion’s report.