Burk Anthony Chuter VS Shanon Leigh Hollensworth
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2008 CU 0224 BURK ANTHONY CHUTER VERSUS SHANON LEIGH HOLLENSWORTH Judgment Rendered May 2 2008 tJJ from the Family Court In and for the Parish of East Baton Rouge Appealed State of Louisiana Suit Number 158 737 Honorable Luke Lavergne Judge Nancy Sue Gregorie Emily G Andrews Baton Rouge LA Counsel for PlaintiffAppellant Lisa Woodruff White Counsel for DefendantAppellee Baton Shanon Rouge LA Burk Anthony Chuter Leigh Hollensworth BEFORE WHIPPLE GUIDRY HUGHES JJ GUIDRY J In this action the to modify judgment of the trial custody appellant Burk Chuter appeals from child court awarding him Mr Chuter joint custody of their minor child with parent For the reasons that follow appellee Shanon Hollensworth and the domiciliary romantic relationship designated as and remand we reverse FACTS AND PROCEDURAL mSTORY Ms Hollensworth and Mr Chuter between 2004 a child father on was born of this Mr was awarded sole Hollensworth or listed as the child s subject s to to establish to DNA submit biological wherein testing to child and that he be supervised to paternity visitation by Ms alternatively that he be awarded joint custody with himself the as domiciliary parent Thereafter the parties entered into stipulation regarding custody consent petition Chuter custody of the child being designated a Hollensworth be ordered that Ms determine if the minor child a was On March 5 the birth certificate requested signed married and Mr Chuter relationship On June 16 2006 Mr Chuter filed he a were never but 2003 and November 2004 May involved in were on June 26 judgment ordering that alternating of the minor child in seven The trial 2006 the court shall share the parties a subsequently physical custody day increments exchanging the child every Sunday Thereafter the parties entered into another the minor child and the trial 2007 wherein the court father and ordered the child in alternating court signed seven to continue was to on to be the minor child share physical custody February s adopted by a plan the trial 2 for court implementation The plan for of 5 biological of the minor day increments but changed the day of exchange Wednesday The parties also submitted custody which stipulated judgment a declared Mr Chuter parties stipulation regarding custody to of order of joint implementation designated the parties as co domiciliary parents Additionally clause which decompensation provided that if child he shall have the pending a On hearing or an 21 February that circumstances had right was unable 2007 Mr Chuter filed changed to such was filing the rule s day threatened to pay following to a was temporary custody to pending home and Ms s on court hearing continued pursuant signed a the same signed Mr Chuter and a consent set to to 5 00 p or alternatively Mr Chuter that Mr requested Mr Chuter asserted that he decompensation clause in the incident wherein 2007 a The room Hollensworth was Mr Chuter also filed Ms s police taken an teenage daughter to were called to Earl K Long for parte application ex date an order granting temporary custody of the minor granted Ms Hollensworth supervised visitation both written stipulation On March 6 2007 On which reflected the custody of the that Ms Hollensworth be awarded m the in another for March 6 2007 judgment be awarded temporary p to February 18 playing Medical Center for examination child custody child support in the best interest of was commit suicide in front of Ms Hollensworth Hollensworth The trial minor mother called him and advised him that Ms Hollensworth had that and while the minor child Ms parties a change custody asserting to that it an extent change custody pursuant order implementation Hollensworth to rule a domiciliary parent Additionally that Ms Hollensworth be ordered for the upon or twenty four hours emergency rule to be filed within the as Mr Chuter to to care physical s a unilaterally take physical custody of the child to the minor child that Mr Chuter be awarded sole Chuter be named plan contained Ms Hollensworth mental condition became such that it became apparent reasonable belief that Ms Hollensworth the the hearing April 19 2007 the trial parties agreement that minor child pending a trial on 3 court Mr Chuter the merits and supervised visitation every Saturday m was from 12 00 On August counsel for Ms extension of Hollensworth filed discovery due Hollensworth due court the on domiciliary parent such time when she stabilized from her default trial court and can show that she is communicate with Ms the merits the trial on such time court designated as longer in any institution or court that she is the issue of pretermitted Hollensworth shows she is that the judgment gainfully be entered as a appeals from this judgment asserting that the now rendering the judgment considered decree under Bergeron v that the trial failing further erred in a Ms Hollensworth until specified court signed to The trial Ms as The trial Mr Chuter and Ms Hollensworth shall no condition Mr Chuter erred in court to ordering visitation reserved diagnosed pending judgment trial a ordering that Finally the trial employed change custody continue and for indefinite to inability s to and control of the minor child with Mr Chuter joint custody child support the rule on medical condition of Ms Hollensworth following October 5 2007 motion a counsel to alleged to an denied the motion and judgment have 2007 the date of the trial 22 default as a judgment rather than Bergeron 492 So 2d 1193 to award him sole La 1986 as a and of the minor custody child DISCUSSION It is well settled that a court of appeal finding of fact in the absence of manifest v 549 So 2d 840 ESCO errors by the trial standard no 2d 731 735 longer applies A law and such materially court legal errors affect the Evans 97 0541 at p 844 Evans v a trial a trial Legal of the and case 7 708 So 2d at 735 4 court legal the manifest error deprive a 708 So applies incorrect principles of errors When s one or more Lungrin 97 0541 p 6 La 2 6 98 when court clearly wrong Rosell finding process prejudicial outcome unless it is However where interdict the fact error occurs are error or 1989 La may not set aside are a prejudicial when they party of substantial rights prejudicial error of law skews the trial finding of court s a material issue of fact and appellate court is required if it issues the applying the Evans 97 0541 at p In the instant judgment based 7 708 So 2d case on the trial summary was at was See La rendered the unable proceedings where not required in a Comment 1960 summary d custody judgment is rule court on a C cP proceedings an answer the record on arts as required to 2591 by novo relating presented was not 8 to However and 2593 apply only been filed art 1 and in a The judgments default to those articles but has default change custody which is 2592 See La C C P proceeding as a be present for the trial to Louisiana Code of Civil Procedure articles to summary other 735 court before the trial proceeding inapplicable render judgment its determination that sufficient evidence establish that Ms Hollensworth the instant action pretermit to determining the essential material facts de law and correct can to it causes are ordinary an answer is 2593 Official Revision Succession of Barron 345 So 2d 995 997 La App 2nd Cir 1977 Further judgment in a even if a default summary proceeding requirements for obtaining arts 1701 and 1702 judgment a default Therefore rendering the instant judgment Generally when the trial fact finding judgment no review means were complied has committed Franklin a legal 928 So 2d 90 94 writ denied 06 0206 1021 However pursuant to I remand a case See La C C P arts to La C C P art when the interests of 1701 v 2164 justice 1702 and 1843 5 legally erred in error that interdicts the the reviewing Franklin 05 1814 p 8 La Cir 05 See La C C P court complete a 22 12 with judgment should conduct novo by which to render a evidence in the record that the find that the trial default court proper and the record is otherwise process de there is we as a was a courts so La of require 17 2 06 court App 1st 924 So 2d appeal have the power See Barnhill v A I La denied 03 2159 is remanded case much discretion and is According to is court incident wherein Ms Hollensworth the minor child incident the in her was parties a appellate particular has court facts and circumstances of each case arises from allegedly threatened Prior physical custody had entered into Lewis 414 v Whether which the 665 writ 665 at the record the instant also Heyman rehearing on particular 858 So 2d at p 7 858 So 2d 661 see a matter over the governed by Barnhill 02 0357 case App 3rd Cir 1979 the trial to 03 2 858 So 2d 419 11 14 03 So 2d 787 792 793 La 7 App 1st Cir 02 0357 p 6 La Remodeling February 18 2007 commit suicide while to to a the February 18 2007 judgment whereby they agreed a consent to a joint custody arrangement sharing equal time with the minor child and with both parties serving rule to importance that he be court designated Chuter to Mr however requested in his the as that he receive was Of domiciliary parent a or particular custody determination from the which would have the effect of a considered decree under Bergeron At the trial Mr Chuter on from himself and his mother and Mr Chuter the Mr Chuter domiciliary parents change custody that he be awarded sole custody of the minor child alternatively trial as co testimony February 18 containing Mr Chuter Mr Chuter s ability to for the child of the officer who 2007 Finally Ms Hollensworth s ex s the minor child as to care was Mr s s presented limited testimony general Additionally called to Ms Chuter introduced testimony application parte rule Mr Chuter s from the for temporary allegations and testified that health and happiness Mr Chuter presented Hollensworth a s copy of the home on transcript February 21 2007 hearing on custody wherein she refuted all of she loved and provided care for the child However from have contact February 2007 with Mr Chuter or to the time of trial Ms Hollensworth did the minor child 6 According to not testimony and documents introduced into evidence Ms Hollensworth had been of state since February 2007 with friends and family and had been receiving medical late disease drug dependency and had recently been diagnosed with bi polar for treatment there is Although opinion he out or condition records Mr Chuter hospitalization had been made from Hollensworth a mutual that friend Counsel communicated via email with a acknowledged Hollensworth of Ms aware mother s concrete evidence in the record such no for Ms unable to return to From we case require our Louisiana for her and from friend with whom Ms Hollensworth s condition and Ms she had was staying she treatment was that time for the trial at review of the limited record and the special circumstances of this find that the interests of justice and the best interest of the minor child that we based upon remand this a more matter to Ms Hollensworth See Bishop the minor child writ denied 460 So 2d 1048 658 663 App Accordingly 2nd we reverse s court for a current mental state a determination of custody presentation of the facts and her Cir La 1984 Gilcrease writ denied the judgment of the trial v to ability Bishop 457 So 2d 264 270 271 v Cir La the trial complete record and particularly regarding a new testimony that Hollensworth stated that who stated that because of Ms Hollensworth s recently diagnosed mental s caring was in his doctor as a La care for App 3rd Gilcrease 438 So 2d 442 So 2d 461 La court and remand this 1983 matter for trial CONCLUSION For the custody to the foregoing appeal the judgment of the trial Mr parties and designating reversed and this this reasons are to case is remanded be borne to Chuter the trial court equally between the parties HREVERSED AND REMANDED 7 as for the court awarding joint domiciliary parent is a new trial All costs of
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