Eric R. Cerwonka v. Joe D. Baker and Teresa Cothran Baker

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-856

ERIC R. CERWONKA

VERSUS

JOE D. BAKER AND TERESA COTHRAN BAKER

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 32,555
HONORABLE JOHN PHILIP MAUFFRAY, JR., DISTRICT JUDGE
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ELIZABETH A. PICKETT
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

AFFIRMED AS AMENDED AND RENDERED.

Walter Evans Dorroh Jr.
Attorney at Law
P.O. Box 1889
Jena, LA 71342
(318) 992-4107
Counsel for Defendant-Appellee:
Joe D. Baker

Donald Wilson
Gaharan & Wilson
P. O. Box 1346
Jena, LA 71342-0000
(318) 992-2104
Counsel for Defendant-Appellee:
Teresa C. Baker

Michael Roy Hubbell
James R. Raines
Breazeale, Sachse & Wilson
P. O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
Counsel for Plaintiff-Appellant:
Eric R. Cerwonka

PICKETT, Judge.

Eric Cerwonka, the biological father of Steven Baker, appeals a judgment of

the trial court granting sole custody to the legal father, Joe Baker, subject to visitation

by Dr. Cerwonka and the mother, Teresa Baker.

STATEMENT OF THE CASE

Steven Baker was born on May 22, 1998. At the time, his mother, Teresa

Baker, was married to Joe Baker. Ms. Baker had maintained an intimate relationship

with Eric Cerwonka at the time Steven was conceived. Paternity testing later revealed

that Dr. Cerwonka was the father of the Steven. Mr. Baker did not know about the

relationship between Ms. Baker and Dr. Cerwonka, or the possibility that Steven was

not his biological son, until the spring of 2001. At about the same time, Ms. Baker

filed for divorce from Mr. Baker. The judgment granting the divorce was signed on

October 11, 2001. Ms. Baker was named domiciliary parent of Steven in the initial

divorce proceeding, subject to visitation by Mr. Baker.

In January 2002, Dr. Cerwonka filed a Petition for Custody/Visitation. He

sought recognition as the biological father of Steven and custody of and visitation

with Steven. The parties were able to reach an agreement in May 2002 concerning

custody of Steven, wherein Dr. Cerwonka was given joint custody of Steven and

allowed visitation. This agreement was never memorialized in a judgment. When the

relationship between Ms. Baker and Dr. Cerwonka deteriorated, they each filed

several motions in the district court seeking that the other party be held in contempt

for violation of the custody agreement. They also sought modification of the custody

arrangement. After a full year of allegations, motions, evaluations by mental health

care professionals by all parties, and two separate hearings in the district court, the

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trial court issued a Joint Custody Plan, which the trial court signed on May 8, 2003.

Mr. Baker was named domiciliary parent of Steven and Ms. Baker and Dr. Cerwonka

were awarded visitation.

In September 2003, the parties began attacking the arrangements under the

Joint Custody Plan. Mr. Baker filed a motion asking the court to order Dr. Cerwonka

to refrain from taking Steven to a counselor appointed by the court, Mary Girard.

(The motion was later withdrawn by Mr. Baker.) Dr. Cerwonka filed a rule seeking

to be named co-domiciliary parent and that the court establish procedures to facilitate

communication between the parties. (The record is not clear about how this rule was

disposed of by the trial court.) In February 2004, Ms. Baker sought a modification

of the Joint Custody Plan. She alleged that she had fulfilled the conditions imposed

on her by the trial court and that she had moved from Jena, Louisiana to Pineville,

Louisiana. She asked the court that she be named domiciliary parent following the

end of the 2003-2004 school year. Also, Dr. Cerwonka moved from New York to

Lafayette, Louisiana, which necessitated a change in the visitation arrangements. The

minutes of court indicate a hearing was held on April 20, 2004, to dispose of

outstanding matters in this case, including the request of Ms. Baker that she be named

domiciliary parent. The minutes and the judgment indicate the parties entered into

an agreement whereby Ms. Baker would be named domiciliary parent. (The transcript

is not in the record.) The trial court held that following the school year Ms. Baker

would become domiciliary parent subject to visitation by Mr. Baker and Dr.

Cerwonka in a judgment signed November 12, 2004.

The trial court held hearings on December 9, 2004, and January 17, 2005, to

dispose of further motions filed by the parties because they were unable to abide by

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the Joint Custody Plan. The trial court issued a very detailed Interim Joint Custody

Plan on March 10, 2005.

In December 2005, all three parties again submitted issues to the district court

for its determination. Dr. Cerwonka filed motions seeking a change in the joint

custody plan and an order that the parties be subject to psychological evaluation again

pursuant to La.R.S. 9:331. Ms. Baker filed a rule to show cause why Dr. Cerwonka

should not be held in contempt for failure to pay child support. Mr. Baker filed an

exception of vagueness to Dr. Cerwonka’s motion, and a motion that should the court

determine that a change in custody is necessary, the court should award Mr. Baker

domiciliary custody.

The trial court held a hearing on these motions on January 23 and 24, 2006.

At the conclusion of the hearing, the trial court ruled in open court that Mr. Baker

would be awarded sole custody of Steven, subject to monthly visitation by Ms. Baker

and Dr. Cerwonka. A judgment in conformity with the trial court’s oral ruling was

signed on April 18, 2006. Dr. Cerwonka has appealed that judgment.

ASSIGNMENTS OF ERROR

The appellant, Eric Cerwonka, asserts five assignments of error:

1. The trial court erred in granting Joe Baker sole legal care, custody and
control of the minor child, Steven Baker, where Joe Baker stated in his
pleadings that he opposed any modification of custody, and that if the
Court determined it necessary to modify custody, he requested only that
he be named domiciliary parent of the minor child.

2. The trial court erred in granting Joe Baker sole legal care, custody and
control of the minor child, Steven Baker, where the burden of proof was
not met to modify custody.

3. The trial court erred in granting Joe Baker sole legal care, custody and
control of the minor child, Steven Baker, depriving Eric R. Cerwonka
of his Constitutional rights under the Due Process Clause.

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4. The trial court erred in granting Joe Baker sole legal care, custody and
control of the minor child, Steven Baker, where the burden of proof was
not met to grant custody to a non-parent.

5. The trial court erred in not appointing a mental health evaluation of the
parties as allowed under La.R.S. 9:331.

DISCUSSION

In Arrington v. Campbell, 04-1649, p. 2 (La.App. 3 Cir. 3/9/05), 898 So.2d

611, 612, this court stated:

This court has clearly stated the standard of review for an
appellate court in child custody matters. “The trial court is in a better
position to evaluate the best interest of the child from its 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.” Hawthorne v.
Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625,
writ denied 96-1650 (La.10/25/96), 681 So.2d 365. Under Louisiana
Civil Code Article 131, decisions regarding custody of the children are
made with the best interest of the child being paramount. Louisiana
Civil Code Article 134 provides a number of factors to be considered in
making the best interest determination. These factors are merely
suggested factors, and the trial court is free to use other factors to make
its determination. Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02),
834 So.2d 1245. However, the trial court should consider the totality
of the facts and circumstances in its analysis of the best interest of the
child.

Since the second assignment of error concerns the burden of proof required

below to modify the existing custody arrangement, we will address that assignment

first. Dr. Cerwonka argues that each of the previous judgments rendered by the trial

court were considered decrees, and therefore could not be modified unless the high

burden imposed in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), had been met.

In Bergeron, the supreme court stated:

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

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convincing evidence that the harm likely to be caused by a change of
environment is substantially outweighed by its advantages to the child.

Id. at 1200.

Dr. Cerwonka argues that either the May 8, 2003 judgment, the November 12,

2004 judgment, or the March 10, 2005 judgment was a considered decree, and thus

the “heavy burden” imposed in Bergeron is applicable. At the beginning of the trial

on January 23, 2006, the trial court addressed this issue. The trial court explained to

counsel before any evidence was taken that it was working under the belief that they

were not dealing with a considered decree. The trial court explained that the May 8,

2003 judgment was a considered decree, but the 2004 custody plan altering that

judgment was agreed to among the parties and not subject to the heightened proof

standards enunciated in Bergeron. The counsel for each of the parties, including Dr.

Cerwonka, agreed with the trial court’s characterization of the previous judgments.

Thus, Dr. Cerwonka is technically estopped from arguing in this court that the trial

court’s ruling is incorrect. See La.Code Civ.P. art. 2085. We find, however, no error

in the trial court’s characterization of the previous judgments.

The May 8, 2003 judgment was a considered decree. It was modified in 2004

to take into account the fact that Dr. Cerwonka moved from New York City to

Lafayette, Louisiana, and Ms. Baker moved from Jena to Pineville and was named

domiciliary parent. The parties agreed to the modification of this decree to take into

account the changes in circumstance. It was not a considered decree in the sense that

the parties came to an agreement about the changes with the approval of the court.

Peyton v. Peyton, 614 So.2d 185 (La.App. 3 Cir. 1993). The March 10, 2005

judgment is not subject to the Bergeron standards because it was an interim custody

plan, and Bergeron only applies to a “considered decree of permanent custody.”

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Thus, the burden of proof in this case is that for a non-considered decree. The party

seeking a change in the custody arrangement must prove: “1) a change in

circumstances affecting the welfare of the [child] had occurred since the original

decree, and 2) the proposed modification is in the best interest of the [child].”

Aucoin, 834 So.2d at 1249.

The trial court heard evidence that the inability of Dr. Cerwonka and Ms. Baker

to communicate with each other about Steven’s needs, their past histories of

manipulation of Steven, and their incivility toward one another had a negative effect

on Steven. The trial court found that Steven was not subject to the same problems

when he was with Mr. Baker. The trial court also found that Mr. Baker was able to

effectively communicate with both Dr. Cerwonka and Ms. Baker, and that he was in

a better position to facilitate visitation with Dr. Cerwonka and Ms. Baker. The trial

court has had these parties before it for over four years now, and has become very

familiar with the parties. We cannot say that the trial court abused its discretion by

awarding domiciliary custody to Mr. Baker and visitation to Dr. Cerwonka and Ms.

Baker.

The trial court, however, awarded sole custody to Mr. Baker. In his first

assignment of error, Dr. Cerwonka argues that it was error to remove Steven from the

joint custody of Dr. Cerwonka because, in his pleadings, Mr. Baker only asked that

he be granted domiciliary custody and the pleadings were not expanded during the

trial to allow for an award of sole custody to Mr. Baker. This position is supported

by the second circuit’s opinion in Havener v. Havener, 29,785 (La.App. 2 Cir.

8/20/97), 700 So.2d 533, wherein the trial court held that the award of sole custody

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to the father was in error where he only sought domiciliary custody with his former

wife having joint custody.

In response, Mr. Baker acknowledges that he only sought domiciliary custody

in his pleadings. He argues, however, that the pleadings were expanded during the

course of the trial to justify an award of sole custody to Mr. Baker. Mary Girard, a

social worker who had counseled Steven, and Dr. Kelly Pears, a psychologist who

reviewed the previous psychological examinations of the parties, testified about the

difficulties that a child may experience when his separated parents have a bad

relationship, and specifically about the difficulties Steven has had in dealing with the

relationships among his three parents, especially Dr. Cerwonka and Ms. Baker. At

no point in their testimony did either of them suggest that Dr. Cerwonka or Ms. Baker

was incapable of caring for Steven’s needs. Thus, we do not find that the pleadings

were expanded to justify the trial court’s award of sole custody to Steven. The

judgment is amended to provide that all three parent are awarded joint custody and

Mr. Baker is named the domiciliary parent.

The trial court did not err in awarding physical custody of Steven to Mr. Baker

as Dr. Cerwonka suggests in arguing his second assignment of error. Based on the

testimony of Ms. Girard, Dr. Pears, and the parties, the trial court found that Mr.

Baker was in the best position to care for Steven, and that he was the most likely to

foster a healthy relationship between Steven and his other parents. Essentially, the

relationship between Dr. Cerwonka and Ms. Baker was too volatile to allow for

Steven to live with either of them and continue to have a good relationship with the

other. The trial court did not abuse its discretion in reaching this finding.

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Dr. Cerwonka also argues that the trial court relied too heavily on Ms Girard’s

testimony in reaching its decision. He argues that Ms. Girard had seen Steven only

once in the last year, and that Ms. Baker had also attended counseling sessions with

Ms. Girard. Dr. Cerwonka made no contemporaneous objection to the foundation of

Ms. Girard’s testimony during the trial. Furthermore, the expert produced by Dr.

Cerwonka, Dr. Pears, had never seen Steven, only the records of the evaluations of

all of the parties. The trial court used Ms. Girard’s testimony to give further support

to its independently reached conclusion.

Dr. Cerwonka’s third assignment of error is moot. He complains that the trial

court violated his due process rights by granting sole custody to Mr. Baker. By

granting joint custody to all three parents, this alleged constitutional defect is cured.

Further, this assignment of error will not be considered by this court because it is

raised for the first time on appeal. The supreme court has enunciated the rule that

“issues not submitted to the trial court for decision will not be considered by the

appellate court on appeal.” State v. Williams, 02-898, 02-1030, p. 7 (La. 10/15/02),

830 So.2d 984, 988. See also Uniform Rules – Courts of Appeal Rule 1-3.

Dr. Cerwonka’s fourth assignment of error is that Mr. Baker, as the legal father

of Steven, is a non-parent and should only be given custody if the requirements of

La.Civ.Code art. 133 are met. Article 133 states:

If an award of joint custody or of sole custody to either parent
would result in substantial harm to the child, the court shall award
custody to another person with whom the child has been living in a
wholesome and stable environment, or otherwise to any other person
able to provide an adequate and stable environment.

Dr. Cerwonka argues that a legal father is a non-parent, and thus Mr. Baker should

only be awarded sole custody if joint custody to Dr. Cerwonka and Ms. Baker would

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result in “substantial harm” to Steven. The argument rests on Louisiana cases

denying legal fathers the right to recover in tort suits when the biological father is a

party. In as much as we find an award of joint custody to all three parents is

appropriate, with Mr. Baker named domiciliary parent, this assignment of error is

moot.

The fifth assignment of error raised by Dr. Cerwonka is whether the trial court

erred in refusing to order mental health evaluations of the parties pursuant to La.R.S.

9:331, which states:

A. The court may order an evaluation of a party or the child in a
custody or visitation proceeding for good cause shown. The evaluation
shall be made by a mental health professional selected by the parties or
by the court. The court may render judgment for costs of the evaluation,
or any part thereof, against any party or parties, as it may consider
equitable.

B. The court may order a party or the child to submit to and
cooperate in the evaluation, testing, or interview by the mental health
professional. The mental health professional shall provide the court and
the parties with a written report. The mental health professional shall
serve as the witness of the court, subject to cross-examination by a party.

The language of the statute is permissive, and the decision to require the evaluations

lies in the discretion of the court. Bourque v. Bourque, 03-1254 (La.App. 5 Cir.

3/30/04), 870 So.2d 1088.

Here, the trial court already had access to psychological evaluations of the

parties which were performed in 2003. Both experts who testified that the pathology

of the parties would not significantly change in three years, and that counseling to

help treat the problems was more helpful. While Dr. Pears did state that Pippen

evaluations are generally done on all parties involved, he did not testify that further

testing would be beneficial. The trial court did not abuse its discretion in failing to

require further psychological evaluation of the parties.

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CONCLUSION

We amend the judgment of the trial court to reflect an award of joint custody

to Joe Baker, Teresa Baker, and Eric Cerwonka. Joe Baker is designated as

domiciliary parent. The judgment of the trial court is affirmed in all other respects.

Costs of this appeal are assessed to Eric Cerwonka.

AFFIRMED AS AMENDED AND RENDERED.

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