Christy Lou Armand VS Michael Emanuel Altazin
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CU 2346 CHRISTY LOU ARMAND t VERSUS t MICHAEL EMANUEL ALTAZAN DATE OFJUDGMENT May 2 2008 ON APPEAL FROM THE EIGHTEENTH nmICIAL DISTRICT COURT NUMBER 53 516 A PARISH OF IBERVILLE STATE OF LOUISIANA HONORABLE JAMES 1 BEST nmGE Ashly Van Earl Plaquemine Louisiana Counsel for Plaintiff Appellee Scott P Counsel for DefendantAppellant Gaspard Baton Rouge Louisiana BEFORE Disposition AFFIRMED Christy Armand Harrison Michael Emanuel Altazan PARRO KUHN AND DOWNING JJ KUHN 1 Defendant Michael Emanuel Altazan appellant which denies his requests for judgment domiciliary parent a plaintiff appellee Christy Armand By married consent agreed to share joint custody domiciliary parent and awarding of the time seeking during the s half brother visitation entered into a to Altazan Altazan had on stipulated judgment holding the court According to naming Harrison not exercising visitation with the Subsequent to the children would biological petition allegations The terms child of Altazan parties subsequently s of the request for ex come parte stipulated judgment established in their June 14 parties child not of The into s half stipulated judgment contact with each other court 2005 filing the on a exercise visitation with the child brother while a as the order and awarded limited same manner but he could recommendation after another which addressed Harrison judgment On October 12 by granted consent until further order of the mother were never Harrison filed December 29 2004 the s two who parties of their minor child unsupervised visitation in decreed that Altazan him the in contempt of court We affirm June 14 2004 the the child The trial custody of their minor child 2004 order In November 2004 on naming Altazan visitation every other weekend and half to holidays sexual misconduct committed supervised an parte temporary custody of the minor child based ex the child on and s name Harrison judgment signed court s modification in custody a change in the child the trial appeals a hearing officer with the district CustodyNisitation proceeding of the original petition seeking married Gordon Harrison 2 child that support was court held on issued a October the mother of the child 4 2005 Based psychologist on the of Dr Alicia opinion and the fact that Harrison had among other considerations Pellegrin restrictions on declared in the requested a Altazan s Pellegrin officer recommended the hearing visits be lifted and that he resume previous Judgment of custody and visitation hearing before the district recommendation of the officer hearing court was judge decreed clinical appointed her evaluation with Dr completed not the a court as Because neither party October 26 on a his visitation final judgment 2005 the of the trial court On November 15 2005 After issued three a a day hearing held judgment denying followed in which Altazan Every child custody facts and circumstances 916 So 2d 221 proceeding Altazan filed the rules for 226 on January 12 24 and 25 2007 Altazan any of the case must Elliott of requested challenges each of the trial v an be viewed in light of its 05 1547 illegitimate La 12 7 child 05 2 own court the trial relief court s Elliott 05 0181 p 7 La writ denied custody presently before the This court appeal 3 determinations particular App 1st Cir 11 5 905 So 2d 293 acknowledged by set of 05 In a both parents custody shall be awarded in accordance with the provisions concerning custody incident 2 divorce including La C C The matter which had been set for judge 3 to to whom it was Altazan originally an arts earlier 131 136 hearing La CC art 245 The trial date had been continued when the trial allotted recused himself failing to award him sanctions under La C C P art 863 for Harrison s motion in limine pleading ostensibly filed at the commencement of the hearing on his rules which apparently was denied Although there is a copy of an opposition memorandum filed by Altazan the record does not contain a copy ofthe motion and nothing in the transcript or the minutes indicate that the motion was filed or the trial court s disposition of the pleading Appellant was permitted but chose not to timely designate the portions of the that he desired to constitute the record on appeal La C C P arts 2128 and 2161 More record importantly based on the allegations in his brief and in the opposition memorandum it is clear the trial court was not manifestly erroneous in denying sanctions See Stroscher v Stroscher complains 01 2769 p 8 La that the trial court erred in App 1st Cir 2 14 03 845 2d So 3 518 526 court is in the best set unique entitled position of circumstances to ascertain the best interest of the child Accordingly great weight and will to factual most child findings findings court s clearly wrong custody cases the trial It is well settled that at p v appellate reverse those findings fact it would have finder s even weighed entirety and 1 find that a La 1989 entirety an the evidence differently appellate an court must reasonable factual basis does Ifthe appellate sitting In order to Id manifestly erroneous has cited s petition neither to a not for ex parte temporary jurisprudential the outset of the three probable cause set a trial findings are findings are court as not may the trier of reverse a fact exist for the finding and clearly wrong custody ofthe child statutory petition case authority for his rules on all the allegations asserted ex were to false support But he such parte temporary custody Altazan urges that a at like the who bears the burden of showing he acted and without malice when the prosecutor dismisses the criminal charges Harrison should have allegations nor day hearing defendant in a malicious prosecution on presumption that Because she dismissed the presumption aside on Stobart v State 617 So 2d 880 882 La 1993 Altazan claims he is entitled in Harrison heavily review the record in its 2 further determine that the record establishes that the fact finder is or abuse of 226 unless those convinced that had it been though determination of fact at court cannot set error or ESCO 549 So 2d 840 844 reasonable in light of the record reviewed in its 2d So each custody is an determination is based of fact in the absence of manifest Rosell unless appeal on 7 916 court s an determination of court s be reversed not discretion is clearly shown Elliot 05 0181 In trial a given forth in the ex to prove the validity of the sexual misconduct parte custody petition 4 On the record before was the subject it appears that Harrison us of the October 4 2005 matter that resulted in the October 26 2005 proceeding judgment June 14 2004 signed by the district Harrison s appealed that decree consent petition judge court for ex judgment Thus lifted resume to Moreover even if we were to assume judgment have addressed Neither party that Harrison bore testimony is sufficient support that burden Altazan testimony failed as declared in the parte temporary custody of the child the burden of proving the validity of the claims she made her to the restrictions as October 26 2005 appears officer hearing the face of this record the final on on before the which upon Altazan and ordered that his visitation imposed parte custody petition s ex the in to court may accept the expert 14 9 07 applies are to or to the report of reject in whole weight discretion of the trial court trier of fact to be or in part the the Further the rule that questions event was event within the broad of credibility the evaluation of expert testimony unless the stated patently unsound This opinion expressed by given expert testimony is Suazo Suazo 07 0795 p 11 v 970 So 2d 642 650 writ denied 07 2291 witnessed the on appointed expert as well a court La Harrison detailed the actions her four year old child old child relying solely testimony of another expert The effect and expert court erred in conclude that sexual misconduct had occurred and that it proper consideration court A trial any complains that the trial of Harrison give to next confirmed Harrison 14 12 07 how she and testified of his eventual admission of 5 reasons of App 1st Cir on a two two year questioned her four inappropriate for the 970 So 2d 539 performed by the mother of the explained La are year old year old who son sexual conduct with his older half brother Altazan admitted that for years he denied that any over two sexual misconduct had occurred between the child and the child was until the child not admitted half brother s half brother s who is four years older than the child Altazan the misconduct had occurred that he believed Harrison to Altazan relies heavily sexual abuse the latter of which both experts believed the child had a full evaluation of Harrison before And the record clearly supports But neither expert had conducted respective conclusions misconduct between the child and his half brother while Altazan s and reliance on the In his last in custody failed child to set to lay testimony was not challenge designate of the trial him as forth in La C C the domiciliary parent art parties we to find designate him So 2d 1373 1375 La Altazan asserts in contempt of failed to s a they not their drawing finding of sexual were together in the of the experts rejection suffered opinions erroneous court s determination domiciliary parent denying a modification Altazan maintains the trial court 134 both present no manifest abuse of discretion in its decision custody claims consider the evidence submitted in connection with the best interest of the Although no Thus the trial court physical custody s distinction between sexual misconduct and the experts on It give court as the disadvantages error to in the trial deny Altazan domiciliary parent in the other court s s factual findings request for See Cotton v acting a as and change in Holden 422 App 1st Cir 1982 the trial for court erred in its denial of his motion violating prior judgments him advance written notice of 6 a change He to complains in address hold Harrison that Harrison as set forth in the June 14 2004 court to judgment consent Altazan also hold Harrison in contempt for A constructive allowing him to exercise not art 224 2 to find that she violated the order of the purposely in without to find discretion only person a justifiable determining whether will be reversed his visitation contempt of court is any contempt other than includes the willful disobedience of any lawful In order the failure of the trial challenges excuse judgment a direct of the court guilty of constructive contempt court and La cc P it is necessary intentionally knowingly court The trial one and is vested with great discretion party should be held in contempt of court and its decision a when the court appellate Haydel v Pellegrin 07 0922 p 5 discerns La a clear abuse of that great 14 App 1st Cir 9 07 970 So 2d 629 632 The trial court s that Harrison gave Altazan verbal notice is finding supported by the testimony Altazan admitted that he had never requested that Harrison reduce verbal notice child to the trial to subsequent he was in case s as s her failure to permit found that Harrison had reliance on some acts her child good Altazan visitation with the reason for her decisions of sexual conduct did in fact s statement indicating complete denial that over two years violation of the The trial court s anything we find of a sexual no error stipulated judgment in the trial was denial of this rule filed discretion 7 nature had s admission that transpired between court s justifiable occur that he and his half engaged in inappropriate sexual behavior and Altazan his children for Harrison court Insofar its determination that Given Harrison brother had writing conclusion that under the facts of this by Altazan is not an abuse of Altazan child urging asserts the Harrison directing the trial had parties to court agree the surname as institute the necessary steps marriage ofthe father and the maiden to by 2003 name La Acts No 1239 the child change to a name change therefore not The abusive UR the a change of name of the He requests so change the child court s s name of the child shall be the surname ifboth the mother and thefather ofthe mother or a combination of the La R S 40 l 34B subject A C Rule 2 matter a or the author 9 1 to show any denial of his rule brief shall be of the previous agreement requesting the name change is to and free from courteous criticism of any judge court or court trial and the ignored of court La failed to of his client counsel for appellant states in his appreciate the scope of the issues presented question He claims that the trial court narrow initially fixation a evidence appellant writes support that conclusion agenda to beginning of the trial demonstrated that it appreciation of the causes of action presented nor the The Trial Court an In brief counsel for narrow at the 8 on concluded that there had been sexual abuse of the child and followed have for larger question of custody and the volume of evidence presented regarding the best interest of the child because of its the sexual abuse insulting Violation of this punishment including contempt representation brief that the trial not iv 4 12 In his zealous did a erroneous language used in to order an As such Altazan has not established entitlement s name The trial discourteous rule shall to do of the child may be that of the father Our review of the record fails parties to Ifthe father is known and name surname amended failing to grant previously agreed If a child is born outside of mother s maiden erred in find applicable burdens of proof associated with those causes of action despite the pleadings filed in the matter including a pre trial memorandum outlining both causes of action and burdens of proof applicable to the same The Trial Court s confusion with the causes of action and burdens of proof continued ultimately through its reasons for judgment Despite this attack acknowledges Appellant address the issue of civil abuse in a has the trial not the child which The brief of clearly indicated appellant s appellant s an counsel is that he our was replete with subsequently jurisprudence to allegations review of the directly of sexual transcript shows us concerned with the best interest of appreciation of the major issue brief discourteous and admonish counsel for this offensive find any to counsel s for the dismissal of Moreover judge repeatedly stated appellant court been able presumptions custody proceeding that the trial We find on personal insulting attacks before the court on the trial toward the trial judge judge and unprofessional behavior DECREE For these UR reasons we A C Rule 2 assessed 1B 16 against appellant issue this memorandum affirming the trial court opinion s Michael Emanuel Altazan AFFIRMED 9 in compliance with La judgment Appeal costs are
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