Edward Gary Mitchell v. Sandra Marie Mitchell

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-514

EDWARD GARY MITCHELL

VERSUS

SANDRA MARIE MITCHELL

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2009-3555
HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.

AFFIRMED.

Andrea Ducote Aymond
Aymond Law Office
121 S. Washington Street
Marksville, LA 71351
(318) 240-7232
COUNSEL FOR PLAINTIFF/APPELLEE:
Edward Gary Mitchell

Bradford H. Felder
G. Andrew Veaey
Huval, Veazey, Felderm, & Renegar, L.L.C.
2 Flagg Place
Lafayette, LA 70508
(337) 234-5350
COUNSEL FOR DEFENDANT/APPELLANT:
Sandra Marie Mitchell

PETERS, J.

Sandra Marie Mitchell appeals a trial court judgment naming her former

husband, Edward Gary Mitchell, the primary custodian of their daughter;

terminating Mr. Mitchell’s previously set child-support obligation; rejecting two

separate rules for contempt of court filed by Mrs. Mitchell; and deferring other

matters related to the litigation to a later hearing. In her appeal, she raises seven

assignments of error, and, for the following reasons, we find no merit in these

assignments of error and affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

Edward Gary Mitchell and Sandra Marie Mitchell were married on January

17, 1985, and divorced on July 12, 2010. Three children were born of the marriage,

and this litigation involves the custody of the remaining minor child, Abby Nicole

Mitchell (Abby), 1 who was born on December 8, 1997. The initial pleading

addressing Abby’s custody is a consent judgment, which was filed one month after

Mr. Mitchell filed his May 14, 2009 petition for divorce. This June 15, 2009

consent judgment awarded the parents joint custody and named Mrs. Mitchell the

domiciliary parent. Additionally, it set a specific visitation schedule for Mr.

Mitchell; ordered that he pay $50.00 per week in child support and one-half of the

extracurricular school activities and school expenses; ordered that he maintain

medical insurance on Abby; and addressed certain aspects of community property

division, possession, and obligations. At the time of the consent judgment, both

parents were residing in Avoyelles Parish, Louisiana.

While the parties did litigate other issues after the divorce, the custodial

arrangement remained the same until June 2013, when Mr. Mitchell filed

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The minor’s name is spelled “Abbie” in some places in the record, and spelled “Abby”
in other places. We will use the spelling on the minor’s school records, which were introduced
into evidence.

pleadings seeking to be named the domiciliary parent. This and other issues raised

from the subsequent pleadings filed by the parties, came to trial on February 18,

2014. After completion of the evidentiary phase of the trial, the trial court took the

matters under advisement. On March 6, 2014, the trial court issued extensive

reasons for judgment wherein it retained the joint custody relationship, but named

Mr. Mitchell as the primary custodial parent, awarded Mrs. Mitchell specific

visitation privileges, and set forth requirements concerning the manner in which

the parents were to treat each other in the future. The trial court also rejected

specific claims raised by rules for contempt of court filed by Mrs. Mitchell,

terminated Mr. Mitchell’s child support obligation, and reserved the issues of child

support owed by Mrs. Mitchell and a separate claim for contempt of court

involving a hospitalization coverage issue to a future hearing.

The trial court executed a judgment in conformity with its reasons for

judgment on the same day it issued its reasons for judgment and, thereafter, Mrs.

Mitchell perfected this appeal. In her appeal, Mrs. Mitchell raised the following

assignments of error:

1. The trial court erred in failing to first determine there was no
material change in circumstances justifying a change in custody.

2. The trial court erred in determining that it is in Abby’s best
interest to have Gary named domiciliary parent and, in effect, holding
that Gary overcame the legal presumption that Sandra’s decision to
enroll Abby in the gifted program at Lafayette High School was in
Abby’s best interest.

3. The trial court erred in limiting Sandra’s custodial periods to
four days per month and a few holiday days with no extra time during
the summer.

4. The trial court erred in allowing the child, Abby, to
determine the dates, times, and places of Sandra’s custodial periods.

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5. The trial court erred in drawing conclusions about evidence
that was ruled inadmissible and in questioning a witness about that
evidence after ruling it inadmissible.

6. The trial court erred in failing to hold Gary in contempt for
his blatant manipulation of the trial date in this matter, by failing to
pay for the mental health evaluation that he requested or which he was
ordered to pay, and for failing to follow certain provisions in the prior
Consent Judgments.

7. The trial court erred when it granted temporary custody
pending a trial set on November 4, 2013 without evidence supporting
a finding of immediate and irreparable harm.

OPINION

The trial court’s reasons for judgment are seventeen pages in length and

contain an extensive breakdown of the procedural and factual history of this

litigation, the factual determinations it made in reaching the judgment before us,

and the law applicable to the issues raised. Rather than reproduce the content of

these well-written reasons for judgment, we incorporate them in this opinion by

reference.

Considering the content of the trial court’s reasons for judgment, we now

turn to the assignments of error asserted by Mrs. Mitchell. In doing so, we

recognize that La.Civ.Code art. 131 provides, “In a proceeding for divorce or

thereafter, the court shall award custody of a child in accordance with the best

interest of the child.” Additionally, we also recognize that each child custody case

must be viewed in light of its own particular set of facts and circumstances, with

the paramount goal of reaching a decision that is in the best interests of the child.

Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3 Cir. 1990). The best

interest evaluation is fact-intensive and requires the weighing and balancing of

factors opposing or favoring custody in the competing parties based on the

evidence presented in each case. Romanowski v. Romanowski, 03-124 (La.App. 1

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Cir. 2/23/04), 873 So.2d 656. Additionally, the trial court is vested with broad

discretion in deciding child custody cases and its decision will not be disturbed

absent a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982).

We also note that in this case, as in most child custody cases, the trial court’s

determination was based heavily on factual findings. It is well settled that an

appellate court cannot set aside a trial court’s findings of fact in the absence of

manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549

So.2d 840 (La.1989). If the findings are reasonable in light of the record reviewed

in its entirety, an appellate court may not reverse those findings even though

convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently. Id. In order to reverse a fact finder’s determination of fact,

an appellate court must review the record in its entirety and (1) find that a

reasonable factual basis does not exist for the finding, and (2) further determine

that the record establishes that the fact finder is clearly wrong or manifestly

erroneous. Stobart v. State, DOTD, 617 So.2d 880 (La.1993).

Assignment of Error Number One

Before considering whether the trial court’s judgment satisfied the “best

interests” test, we must consider Mrs. Mitchell’s first assignment of error wherein

she correctly points out that the trial court must also find a material change of

circumstance before it can rule on Mr. Mitchell’s request for the change of

domiciliary parent designation. As pointed out in Beard v. Beard, 599 So.2d 486,

488-89, (La.App. 3 Cir. 1992) (citations omitted):

When no evidence is adduced at the district court level prior to
the entry of the joint custody order which is sought to be modified,
that joint custody decree is not a “considered decree” within the
meaning of Bergeron [v. Bergeron, 492 So.2d 1193 (La.1986)]. In this
situation, the heavy burden of proof is not applicable, but the moving
party must still prove a material change in circumstances since the
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entry of the original decree and that the modification proposed is in
the best interest of the child. Every child custody case must be
decided based only on its own particular facts and circumstances. On
appellate review, the determination of the trial court in establishing or
modifying custody is entitled to great weight and will not be disturbed
absent a clear showing of an abuse of discretion.

Neither of the two prior custody judgments in this matter were considered decrees

and, therefore, Mr. Mitchell was not required to establish the extra burden of proof

required by Bergeron in order to obtain a modification of the prior custody order.

Mrs. Mitchell acknowledges that Bergeron does not apply to this litigation, but

argues that the trial court failed to find a material change of circumstances before

addressing the “best interest of the child” issue.

We find no merit in this assignment of error. The trial court clearly found

that Mitchell’s relocation to Lafayette, Louisiana, constituted a material change of

circumstances. As pointed out by the trial court in its reasons for judgment, before

Mrs. Mitchell moved to Lafayette, Abby had spent her entire life in and around the

Cottonport/Bunkie area of Avoyelles Parish, Louisiana. She had attended

Avoyelles Parish schools, built lasting friendships, and involved herself in all sorts

of academic and extracurricular activities. Additionally, both her maternal and

paternal extended families reside in Avoyelles Parish. On the other hand, Abby

had no connection to Lafayette and, while she excelled academically at Lafayette

High School, her extracurricular activities were limited to music/singing lessons,

and the trial court found in its reasons for judgment that at school she only “met

and became friendly with three individuals[.]”

From the moment she moved to Lafayette, Abby began to express her desire

to return to the Cottonport/Bunkie area and reside with her father. The trial court

found that this expressed desire caused Mrs. Mitchell to become antagonistic

toward Abby, even to the extent of accusing her of betrayal. Mrs. Mitchell even
5

objected to Abby trying to maintain a relationship with her relatives on her

mother’s side who lived in Avoyelles Parish. In fact, although Mrs. Mitchell

asserted in testimony that the move to Lafayette was “because [her] support group

was there” and because “it was better educational wise for Abby[,]” the trial court

concluded factually that Mrs. Mitchell made the move because of problems with

her own family in Avoyelles Parish. These problems had their origin in the

breakup of her marriage, and Mrs. Mitchell’s anger toward them arose because she

felt they had taken Mr. Mitchell’s side in that breakup. In analyzing Mrs.

Mitchell’s testimony overall, the trial court classified it as “amazing” and we read

the reasons for judgment to conclude that that classification was not meant to be

complimentary. The trial court further stated that Mrs. Mitchell “has some

extremely unique beliefs as a mother[,]” and that it had “never witnessed an

attitude as presented by [her].” The trial court found that in her testimony Mrs.

Mitchell “had a very convenient memory; was very coy at times; and also reflected

a streak of meanness at times.”

Our review of the evidentiary record causes us to find no manifest error in

the trial court’s factual determinations concerning the move by Mrs. Mitchell to

Lafayette, the reasons for the move, and the effect that move had on the

relationship between Abby and Mrs. Mitchell. Furthermore, we find that these

factual determinations establish a material change of circumstances sufficient to

satisfy Mr. Mitchell’s burden of proof on this element.

Assignment of Error Number Two

In this assignment of error, Mrs. Mitchell asserts that the trial court erred in

concluding that Mr. Mitchell had satisfied his burden of proof in that he failed to

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establish that the change in domiciliary-parent status was in Abby’s best interest.

We disagree.

Louisiana Civil Code Article 134 provides a minimum of twelve factors

which the trial court is required to consider in applying the “best interest” standard

of La.Civ. Code art. 131. These factors are:

(1) The love, affection, and other emotional ties between each
party and the child.

(2) The capacity and disposition of each party to give the child
love, affection, and spiritual guidance and to continue the education
and rearing of the child.

(3) The capacity and disposition of each party to provide the
child with food, clothing, medical care, and other material needs.

(4) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of that
environment.

(5) The permanence, as a family unit, of the existing or
proposed custodial home or homes.

(6) The moral fitness of each party, insofar as it affects the
welfare of the child.

(7) The mental and physical health of each party.

(8) The home, school, and community history of the child.

(9) The reasonable preference of the child, if the court deems
the child to be of sufficient age to express a preference.

(10) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and
the other party.

(11) The distance between the respective residences of the
parties.

(12) The responsibility for the care and rearing of the child
previously exercised by each party.

In its reasons for judgment, the trial court specifically considered each of these

twelve factors, and in doing so, found that all but three favored Mr. Mitchell and

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that two of the remaining three (the third and sixth factors) favored neither parent.

The only factor found in favor of Mrs. Mitchell was the twelfth, but even in that

analysis, the trial court found that Mrs. Mitchell’s dispute with her own family had

caused her “to lose sight” of her abilities to function as a responsible mother.

Considering the record as a whole and the trial court’s well-reasoned factual

determinations, we find no abuse of discretion on the part of the trial court.

Therefore, we find no merit in this assignment of error.

Assignments of Error Number Three and Four

Louisiana Revised Statutes 9:335(A)(2) provides in pertinent part that a

joint-custody-implementation order “shall allocate the time periods during which

each parent shall have physical custody of the child so that the child is assured of

frequently and continuing contact with both parents.” Additionally, La.R.S.

9:335(A)(2)(b) provides that “[t]o the extent it is feasible and in the best interest of

the child, physical custody of the children should be shared equally.”

In its reasons for judgment addressing visitation by Mrs. Mitchell, the trial

court stated the following:

Custodial rights/visitation privileges will be awarded to [Mrs.
Mitchell] in a specific fashion that will be outlined in the Judgment
filed by this Court simultaneously with the filing of this opinion. This
Court is of the specific belief that in this case, as well as with most
sixteen year old high school students, a standard visitation plan is not
in the best interest of the child. Further, in the case at bar, this Court
specifically finds that Abbie should [be] allowed to select the times
that she spends with her mother, subject to the rules and regulations
which will be set forth in the Judgment.

The trial court’s judgment awarded Mrs. Mitchell visitation with Abby “during a

minimum of four days per month on four separate days[,]” as well as Mother’s Day

and the Christmas, Easter, and Thanksgiving holidays. The Mother’s Day

visitation is limited by the judgment to the period between 9:00 a.m. and 6:00 p.m.

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on that day, while the other holiday periods provide for “a minimum of one day”

during each holiday. The judgment provides that the dates of visitation are to be

selected by Abby and scheduled by her with her mother. In her third assignment of

error, Mrs. Mitchell asserts that the trial court erred in limiting her visitation to her

daughter. In her fourth assignment of error, she asserts that the trial court erred in

allowing Abby to set the visitation days.

While the trial court did not specifically address the provisions of La.R.S.

9:335 in its reasons for judgment, it concluded that “a standard visitation plan is

not in” Abby’s best interest. It reached this conclusion based on its analysis of the

particulars of this matter as well as Abby’s age. As previously stated, it is obvious

that the trial court gave no credibility to Mrs. Mitchell’s testimony and blamed

Abby’s “emotional roller coaster” life on her mother. Additionally, the trial court

had previously noted in its reasons for judgment that while at Bunkie High School,

Abby had been involved in school and extracurricular activities which took up

much of her otherwise free time. One can assume that on her return to Bunkie

High School she would again become involved in such activities. Thus, the trial

court had to establish a balance between Mrs. Mitchell’s visitation rights as a joint

custodial parent and the activities of a normal active sixteen-year-old child. While

recognizing that Mrs. Mitchell’s visitation rights set by the trial court are minimal,

we must find no manifest error in the trial court’s factual conclusions concerning

the circumstances surrounding the mother/daughter relationship and the effect that

expansive visitation would have on the child’s best interest.

Additionally, while the trial court’s approach to setting the specific days of

visitation is both innovative and unusual, we find no basis in the law that would

preclude Abby from having an interest in setting those dates. In fact, should the

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visitation schedule be set in stone, it may well force Abby to abandon some of her

school and extracurricular activities. For example, a set schedule could often

conflict with her obligation to her school softball team during that season. Given

Mrs. Mitchell’s attitude toward her daughter, a flexible scheduling process with

Abby’s input is not an abuse of the trial court’s broad discretion in setting a

visitation schedule.

Finally, the trial court obviously concluded that the relationship between

Mrs. Mitchell and Abby is so toxic at this point that overnight visitation would be

counter-productive, and concluded that a gradual approach where the relationship

can be mended without forced visitation would be more effective in the long term.

While we might have reached a visitation schedule with different parameters, we

do not find that the trial court abused its broad discretion in the judgment herein.

Assignment of Error Number Five

In this assignment of error, Mrs. Mitchell asserts that the trial court erred

when it drew conclusions from evidence it had ruled inadmissible. This issue

arises from an attempt by Mr. Mitchell to introduce a recorded cellular telephone

conversation between Mrs. Mitchell and Abby. The trial court refused to allow Mr.

Mitchell to play the recorded conversation at trial because Mrs. Mitchell had not

been provided with the recording through pretrial discovery. In its reasons for

judgment, the trial court made the comment that “[i]t is obvious that this exchange

would not have reflected positive mothering skills for Sandra.” Mrs. Mitchell

argues that this comment constituted an improper reference to inadmissible

evidence as was the questioning of witnesses concerning the characterization of the

content.

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In Wright v. Bennett, 04-1944, p. 6-7 (La.App. 1 Cir. 9/28/05), 924 So.2d

178, 183, the first circuit addressed a similar issue, and concluded:

Louisiana Code of Evidence article 103(A) provides, in part,
that “Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected.”
The proper inquiry for determining whether a party was prejudiced by
a trial court's alleged erroneous ruling on the admission or denial of
evidence is whether the alleged error, when compared to the entire
record, had a substantial effect on the outcome of the case. If the
effect on the outcome of the case is not substantial, reversal is not
warranted. LSA-C.E. art. 103(A). The party alleging prejudice by the
evidentiary ruling of the trial court bears the burden of so proving.
Emery v. Owens-Corporation, 2000-2144, p. 7 (La.App. 1st
Cir.11/9/01), 813 So.2d 441, 449, writ denied, 2002-0635
(La.5/10/02), 815 So.2d 842. Generally the trial court is granted broad
discretion in its evidentiary rulings and its determinations will not be
disturbed on appeal absent a clear abuse of that discretion. Turner v.
Ostrowe, 2001-1935, p. 5 (La.App. 1st Cir.9/27/02), 828 So.2d 1212,
1216, writ denied, 2002-2940 (La.2/7/03), 836 So.2d 107.

The record before us establishes that despite her objection to the use of this portion

of the recorded information on Abby’s cellular telephone, Mrs. Mitchell testified

extensively concerning the content of other information on Abby’s cellular

telephone; and Abby related the content of the conversation at issue in her trial

testimony without objection from Mrs. Mitchell. Additionally, Mrs. Mitchell

attempted to impeach Abby’s testimony through the use of other text messages

found by her on the cellular telephone. When asked by the trial court why she did

not want the trial court to hear the taped conversation, Mrs. Mitchell responded

that her attorney advised against it. Considering the evidentiary record as a whole,

we do not find that the trial court’s reference to the content of, or the testimony

concerning the content of, the recorded conversation had a substantial effect on the

final judgment in this matter. Therefore, we find no merit in this assignment of

error.

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Assignment of Error Number Six

In this assignment of error, Mrs. Mitchell asserts that the trial court erred in

failing to hold Mr. Mitchell in contempt of court for any one or all of her

complaints in this regard. This assignment of error addresses the content of two

different rules for contempt of court filed by Mrs. Mitchell after Mr. Mitchell filed

his rule to change the domiciliary-parent designation.

The first of the two rules for contempt appears as a part of Mrs. Mitchell’s

reconventional demand filed against Mr. Mitchell on July 31, 2013. This pleading

raised seven purported violations of the consent order by Mr. Mitchell, and the trial

court reproduced and considered these issues in detail in its reasons for judgment,

finding that with the exception of the health insurance issue, Mrs. Mitchell failed in

her burden of proof on these complaints. In fact, the trial court factually concluded

that Mrs. Mitchell filed these complaints as retaliation against Mr. Mitchell for his

efforts to change the domiciliary-parent designation. The trial court deferred the

health issue to future proceedings. We find no manifest error in the trial court’s

factual findings on these issues and find that the trial court did not err in refusing to

hold Mr. Mitchell in contempt of court. Thus, we find no merit in this portion of

this assignment of error.

Seven days before the February 18, 2014 hearing, Mrs. Mitchell filed a

second motion to hold Mr. Mitchell in contempt of court. In this motion, Mrs.

Mitchell asserted that Mr. Mitchell should be held in contempt of court for using

an ordered psychological testing appointment to manipulate the trial court’s setting

of the matter for trial.

In her motion, Mrs. Mitchell asserted that on the morning of January 23,

2014, her counsel received a pleading seeking to have Mrs. Mitchell undergo a

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psychological evaluation. The motion further asserted that a subsequent telephone

conversation that day with Mr. Mitchell’s counsel resulted in an agreement that

Mrs. Mitchell would undergo the evaluation by Dr. Alicia Pellegrin, a Baton

Rouge psychologist, and Mr. Mitchell would pay for it. They then continued the

trial on the merits scheduled that day until February 18, 2014; and subsequently

Mrs. Mitchell made arrangements for the evaluation and for the expedited

preparation of an expedited report so as not to delay the scheduled trial date.

According to Mrs. Mitchell’s pleading, on January 30, 2014, Mr. Mitchell’s

counsel e-mailed her counsel to the effect that Mr. Mitchell needed to be evaluated

as well. Not only did this result in total confusion of the scheduling process, but

Mr. Mitchell refused to pay for the testing.

Mr. Mitchell testified that he agreed to pay for Mrs. Mitchell’s psychological

evaluation and that he understood it would cost $500.00. However, when he was

later told the evaluation would include him and Abby, and that the cost would be

up to $2,000.00, he balked. He specifically testified on cross-examination that his

opposition had nothing to do with delaying the trial. He was not aware of any

telephone status conference where the trial court ordered him to pay for the

evaluations.

The various pleadings referenced in Mrs. Mitchell’s motion were never filed

in the trial court record, and the trial court itself first became involved in the issue

during a February 7, 2014 telephone-status conference with the parties. In its

reasons for judgment, the trial court recognized that the parties expressed an

agreement that Mr. Mitchell would pay for the evaluation of Mrs. Mitchell, but

noted Mr. Mitchell’s testimony at trial. Specifically, the trial court found that “[Mr.

Mitchell] was not a part of the telephone conservation wherein this Court indicated

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that [he] should pay for the evaluations. This Court is unaware of any law that

allows for a party to be held in contempt of court based on a verbal Order issued by

a Court in a phone conference with attorneys.”

Mrs. Mitchell argues that the trial court’s conclusion was wrong in that there

was ultimately a written order to the effect that “all costs of the psychological

evaluation are to be paid by [Mr. Mitchell]” and it is this order that Mr. Mitchell

violated. However, that order was signed by the trial court on February 11, 2014,

which was the same day Mrs. Mitchell filed her motion for contempt of court, and

days after Mrs. Mitchell’s original scheduled appointment with Dr. Pellegrin.

Furthermore, this order only ordered Mrs. Mitchell’s evaluation and not Mr.

Mitchell’s or Abby’s. Additionally, it provided that the evaluation was to be

completed by February 14, 2014, and that the trial date remained the same,

February 18, 2014. Nothing in the record suggests that Mrs. Mitchell made any

effort to obtain an evaluation within the parameters of this order, and the trial

proceeded as scheduled.

“The burden of proof in a civil contempt proceeding is by a preponderance

of the evidence and appellate review is the manifestly erroneous standard.” McKee

v. McKee, 03-254, p. 5 (La. App. 3 Cir. 10/1/03), 856 So.2d 135, 137. We find

nothing manifestly erroneous in the trial court’s determination that Mr. Mitchell’s

refusal to pay for all three evaluations was not contemptuous under the

circumstances. The trial court found that the ultimate failure to resolve this issue

and obtain the psychological testing was based on the misunderstanding arising

from the oral communication between the trial court and the parties, and not on any

contemptuous behavior on the part of Mr. Mitchell. We find no manifest error in

the trial court’s factual findings on this issue. Nor do we find that the trial court

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erred in not holding Mr. Mitchell in contempt of court for delaying the trial—in

fact, the matter went to trial as scheduled on February 18, 2014. Thus, we likewise

find no merit in this portion of the assignment of error.

Assignment of Error Number Seven

In her last assignment of error, Mrs. Mitchell asserts that the trial court erred

in awarding Mr. Mitchell Abby’s temporary custody by an order dated November

4, 2013, without having made a finding of immediate and irreparable harm. We

find no merit in this assignment of error, as well.

In its reasons for judgment, the trial court noted that on August 2, 2013, a

pretrial conference agreement to award Mr. Mitchell domiciliary-parent status was

set aside by a judgment signed October 1, 2013. The issue now before us arises

because, when Mr. Mitchell was notified that Abby would be required to return to

Lafayette with her mother, Mr. Mitchell filed his October 10, 2013 pleading to

change the domiciliary-custodian designation; and in that pleading he sought an ex

parte order awarding him Abby’s immediate custody.

With regard to a situation where a parent seeks an ex parte order of custody,

La.Code Civ.P. art. 3945(B) provides:

An ex parte order of temporary custody of a minor child shall
not be granted unless:

(1) It clearly appears from specific facts shown by a verified
petition or by supporting affidavit that immediate and irreparable
injury will result to the child before the adverse party or his attorney
can be heard in opposition.

(2) The applicant’s attorney certifies to the court, in writing,
either:

(a) The efforts which have been made to give the adverse party
reasonable notice of the date and time such order is being presented to
the court.

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(b) The reasons supporting his claim that notice should not be
required.

If the trial court grants an ex parte order, its duration is limited by the

provisions of La.Code Civ.P. art. 3945(C)(1) to thirty days, with one possible

extension of fifteen days. Additionally, the rule to show cause hearing must be set

for hearing within thirty days of the ex parte order. La.Code Civ. P. art. 3945(D).

Furthermore, La.Code Civ.P. art. 3945(E) provides, “Any ex parte order not in

compliance with the provisions of this Article is not enforceable, and is null and

void.”

In his verified petition, Mr. Mitchell stated, as his factual basis supporting

his assertion of immediate and irreparable injury, that Mrs. Mitchell daily badgered

Abby daily concerning her whereabouts and who she was with; that Abby was

experiencing physical symptoms of distress because of the possibility of returning

to her mother; that Mrs. Mitchell has attempted to circumvent court hearings by

purposely leaving Abby in Lafayette on trial days to avoid her testifying; that Mrs.

Mitchell threatened suicide after the last hearing; and she is mentally unstable and

poses a risk of fleeing with Abby.

The trial court did not sign Mr. Mitchell’s ex parte order. Instead, the trial

court held a hearing the next day in which both Mr. and Mrs. Mitchell participated

with their counsel of record. It was only after hearing the testimony presented at

that hearing did the trial court grant Mr. Mitchell temporary custody of Abby. In

the same order granting temporary custody, the trial court set a hearing on the rule

for November 4, 2013.

Mrs. Mitchell applied to this court for a supervisory writ asserting that the

trial court had issued an improper ex parte order. In an unpublished writ denial,

this court denied her relief with the following language:
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A hearing was held before the trial court on October 11, 2013, at
which counsel for all parties were in attendance and participated.
Therefore, this court is not asked to review an ex parte custody ruling.
Instead this court is asked to set aside a temporary custody ruling
pending a full hearing set for November 4, 2013. We find no error in
this ruling.

Mitchell v. Mitchell, 13-1185 (La.App. 3 Cir. 10/29/13) (unpublished writ).

In this assignment of error, Mrs. Mitchell does not assert that the order was

of an ex parte nature, but merely argues that the trial court erred in finding that Mr.

Mitchell established immediate and irreparable injury at the October 11, 2013

hearing. While the trial court’s reasons for judgment do not specifically refer to

the October 11, 2013 hearing, those reasons do refer to some testimony taken at

that hearing, including the badgering telephone calls referred to by Abby in her

testimony at the October 11, 2013 hearing; Mrs. Mitchell’s unusual disappearance

after the August 2, 2013 hearing; and Abby’s physical and emotional condition

arising from the situation in October. In the reference to this evidence, it is

obvious that the trial court accepted the evidence in favor of granting the

temporary-custody order and discounted completely Mrs. Mitchell’s evidence. We

find no manifest error in the trial court’s factual findings in this regard and no error

in the trial court’s grant of temporary custody.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment awarding in

all respects. We assess all costs of this appeal to Sandra Marie Mitchell.

AFFIRMED.

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

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