Meredith Bourg Chauvin VS Todd David Chauvin (2010CU1055 Consolidated With 2010CA1056)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CU 1055 MEREDITH BOURG CHAUVIN VERSUS TODD DAVID CHAUVIN Consolidated With tA r 2010 CU 1056 TODD DAVID CHAUVIN VERSUS MEREDITH BOURG CHAUVIN Judgment Rendered OCT 2 9 2010 On Appeal from the Thirty Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No 154179 Consolidated With 154268 Honorable Randall L Bethancourt Judge Presiding Philip A Spence Houma Louisiana Counsel for PlaintiffAppellee Meredith Bourg Chauvin Jerri G Smitko Counsel for Defend ant Appellant Houma Louisiana Todd David Chauvin BEFORE WHIPPLE McDONALD AND McCLENDON JJ MCCLENDON J In this custody proceeding a father appeals a judgment granting the domiciliary custody of the minor child to the mother For the following reasons we affirm the judgment of the trial court FACTS AND PROCEDURAL HISTORY Meredith Bourg and Todd David Chauvin were married on May 22 2004 and their son Logan was born on September 2 2005 Petitions for divorce were filed by both parties in April of 2008 and the matters were consolidated on May 6 2008 On September 26 2008 the trial court signed a judgment of divorce as well as a judgment based on the consent of the parties regarding child custody and other incidental matters Among the stipulations in the custody judgment was one that the parties would have shared joint custody on a rotating weektoweek basis to coincide with Mr Chauvin employment Also by s consent judgment signed on March 26 2009 Mr Chauvin was granted the exclusive use and possession of the former matrimonial domicile in Bourg Louisiana Thereafter on June 8 2009 upon obtaining information that Ms Bourg had enrolled Logan in two other elementary schools Mr Chauvin filed a rule requesting that Logan be enrolled at Bourg Elementary School Opposing rules for modification of custody followed shortly thereafter Trial on the three rules was held on August 11 2009 At the start of the trial the court advised the parties that each side would have two hours to present their case conclusion of trial the matter was taken under advisement At the Judgment was signed on January 15 2010 granting the parties the joint care custody and control of their minor child with Ms Bourg being designated as the custodial domiciliary parent subject to the visitation rights of Mr Chauvin as established in the Joint Custody Implementation Plan 2 Mr Chauvin appealed In his appeal Mr Chauvin alleges that the trial court erred in limiting him to two hours to present his case on his two rules and to defend against Ms Bourg rule s He also assigned as error the grant of domiciliary custody to Ms Bourg because the court made no determination that Ms Bourg met her burden of proving that there had been a change in circumstances and because the court did not balance the factors for awarding custody as required by the Civil Code DISCUSSION The best interest of the child is the guiding principle in all custody litigation LSA C arts 131 and 134 Keeping in mind that every child custody case must be viewed in light of its own particular set of facts the jurisprudence recognizes that the trial court is generally deemed to be in the best position to ascertain the best interest of the child given each unique set of circumstances and because of its superior opportunity to observe the parties and the witnesses who testified at the trial Babin v Babin 020396 p 7 La 1 Cir App 03 30 7 854 So 403 408 writ denied 03 2460 La 9 854 So 2d 03 24 2d 338 cert denied 540 U 1182 124 S 1421 158 L 86 2004 State S Ct 2d Ed in the Interest of AR 99 0813 p 8 La 1 Cir 9 754 So 1073 App 99 24 2d 1078 Accordingly the trial court is vested with a vast amount of discretion in child custody cases and its determination of custody is entitled to great weight We note that on August 24 2009 Mr Chauvin filed an ex parte motion and order for a devolutive appeal The order was signed on August 27 2009 However the judgment from which Mr Chauvin appeals was not signed until January 15 2010 Thereafter on January 26 2010 Mr Chauvin filed a motion for new trial At the hearing on the motion for new trial held on March 5 2010 the trial court noted that Mr Chauvin previously filed an appeal and the court was without jurisdiction It continued the hearing without date This court then issued a rule to show cause why the appeal was not premature since the appellate record did not appear to include a ruling on the motion for new trial To the extent that Mr Chauvin motion for appeal was premature we note that any s previously existing defect arising from a premature motion for appeal i one taken before the e signing of a final judgment is cured once the final judgment has been signed Overmier v Traylor 475 So 1094 1094 95 La 1985 per curiam City of Denham Springs v 2d Perkins 08 1937 p 5 n La 1 Cir 3 10 So 311 317 n writ denied 09 0871 5 App 09 27 3d 5 La 5 8 So 568 09 13 3d It is clear that the trial court was without authority to entertain the motion for new trial on March 5 2010 because its jurisdiction was divested upon the granting of the order of appeal from the judgment pursuant to LSA C art 2088 following the signing of the judgment P Accordingly we conclude that Mr Chauvin motion for new trial was waived or abandoned s when on his motion the order for appeal was signed on August 27 2009 and judgment was signed on January 15 2010 See Johnson v Johnson 473 So 112 114 La 3 Cir 2d App 1985 Thus this appeal is properly before us 9 which will not be reversed on appeal unless an abuse of discretion is clearly shown Elliot v Elliot 050181 p 7 La 1 Cir 5 916 So 221 App 05 11 2d 226 writ denied 05 1547 La 7 905 So 293 State in the Interest 05 12 2d of AR 99 0813 at p 8 754 So at 107778 2d In this case as in most custody cases the trial court determination was s based on factual findings which are subject to the manifest error standard of review Specifically an appellate court cannot set aside a trial court findings of s fact in the absence of manifest error or unless those findings are clearly wrong Rosell v ESCO 549 So 840 844 La 1989 If the findings are reasonable 2d 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 at 844 In order to reverse a fact finder determination of fact an appellate court must review the record in s 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 through Dept of Transp and Dev 617 So 880 882 La 1993 Thus when there are two 2d permissible views of the evidence the fact finder choice between them cannot s be manifestly erroneous Id at 883 However where one or more legal errors by the trial court interdict the fact finding process the manifesterror standard is no longer applicable Evans v Lungrin 97 0541 p 6 La 2 708 So 731 735 98 6 2d A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights Pruitt v Brinker Inc 040152 p 4 App La 1 Cir 2 899 So 46 49 writ denied 051261 La 12 05 11 2d 05 917 So 1084 2d In his first assignment of error Mr Chauvin argues that he had no knowledge that there would be a limitation imposed upon the presentation of evidence He asserts that by giving him only two hours to present evidence on D two rules and defend a third his rights to due process were violated under the Louisiana Constitution 2 A court has the power to control its proceedings pursuant to LSAC P C art 1631A which provides The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner and to control the proceedings at the trial so that justice is done The court power under LSAC art 1631 to control trial proceedings s P C is limited by the phrase so that justice is done Further the due process clauses of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution guarantees litigants a right to a fair hearing However due process does not mean litigants are entitled to an unlimited amount of the s court time Goodwin v Goodwin 618 So 2d 579 583 La 2 Cir writ denied 623 So 1340 La 1993 App 2d The court in Goodwin adopted the five following non exclusive factors that should be considered in determining whether the trial court denied a party its due process rights and exceeded the authority granted by statute 1 before imposing time limitations in a case the trial judge should be thoroughly familiar through pretrial proceedings with the claims of the parties the proposed testimony and number of witnesses and the documentary evidence to be presented 2 if they are used time limits should be imposed on all parties before any party presents any evidence and sufficiently in advance of trial for the litigants to prepare for trial within the limits imposed 3 the trial judge should inform the parties before the trial begins that reasonable extensions of the time limits will be granted for good cause shown 4 the trial judge should develop an equitable method of charging time against each litigant time limits s and 5 the trial judge should put all of his rulings regarding time limits and the z Article 1 22 of the Louisiana Constitution provides All courts shall be open and every person shall have an adequate remedy by due process of law and justice administered without denial partiality or unreasonable delay for injury to him in his person property reputation or other rights reasons for the rulings on the record Id at 583 84 Mr Chauvin argues that because none of the Goodwin guidelines were followed the trial court committed legal error In this matter at the beginning of trial the following conversation took place The Court Okay Let me ask you this Ms Smitko about how many witnesses do you have And I going to ask m you the same thing Mr Spence Including your client And not counting the other side Ms Smitko Not counting the other side The Court Right And Mr Spence count your client and your witnesses so I can give ya the game plan here ll Ms Smitko Possibly eight that I intend calling but they may be aligned with the other side but I do have to call them in my case in chief The Court All right Mr Spence If you like I call out the names of my witnesses ll because I going to ask for a sequestration order m but I have five The Court Okay This is the deal each side is going to be given two hours to put on testimony including cross examination Each side has two hours Does not count argument does not count recesses doesn t count calling your witnesses It counts from the time you start questioning So each side has two hours ll I be the timekeeper Okay So that means get to the point Ms Smitko Just a quick question Judge The Court Sure Ms Smitko Like if I spend 15 minutes on a witness and he cross examines for 45 minutes does that The Court s That his 45 Ms Smitko Oh okay The Court s That his 45 minutes Ms Smitko Just make sure that doesn come on mine t 3 This Court in an unpublished opinion adopted the five factor analysis utilized by the Goodwin court See Kinney v Bourgeois 06 2384 La 1 Cir 9 962 So 1234 table App 07 14 2d writ denied 07 2026 La 1 973 So 730 08 7 2d u a The Court That his 45 minutes Okay s Mr Spence Don have to worry about that t The Court ve I done this before It works It makes the lawyers get to the point Two hours is a lot of time going to take probably s It to do four hours it probably s going to take eight hour to do a four hour two s hours each Trust me Ms Smitko Yes sir The Court Well maybe not eight hours but six I sure okay m Ms Smitko please call your first witness Initially we note that Mr Chauvin is basically arguing a denial of due process due to his inability to fully present his evidence However Mr Chauvin did not object to the trial court allocation of time To preserve an evidentiary s issue for appellate review it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection See Etcher v Neumann 002282 p 13 La 1 Cir App 01 28 12 806 So 826 838 writ denied 020905 La 5 817 So 2d 02 31 2d 105 Further Mr Chauvin did not ask for more time at the conclusion of the presentation of his case Nor did he ask to proffer the testimony of any witness who was not called See McLean v Hunter 495 So 1298 1305 La 1986 2d Had a timely proffer been made this court could then determine whether or not the evidence sought to be introduced was such that prejudice occurred by its exclusion Goodwin 618 So at 584 Moreover nowhere in his appellate 2d brief does Mr Chauvin allege any prejudice He makes no contention that he was unable to present all the evidence he wanted to present Mr Chauvin simply states that the guidelines were not followed thereby amounting to legal error Thus even if the Goodwin guidelines were not completely followed we are constrained to conclude that Mr Chauvin assignment of error regarding a s violation of his due process rights is without merit VA See Smith v Smith 663 664 44 44 pp 3032 La 2 Cir 8 16 So 643 66061 App 09 19 3d Goodwin 618 So at 58485 2d Mr Chauvin next argues that the trial court committed legal error in awarding domiciliary custody to Ms Bourg He contends that she failed to meet her burden of proof in showing that there had been a change in circumstances and that the trial court did not balance the factors for awarding custody as required by LSAC art 134 C There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and that needed to change a custody plan ordered pursuant to a non considered decree or stipulated judgment Richard v Richard 09 0299 p 6 La 1 Cir App 09 12 6 20 So 1061 1066 If a prior award of custody as in this case has 3d been made by consent decree the party seeking a change in custody must prove that a change materially affecting the welfare of the child has occurred since the original decree The proponent for change must also show that the proposed modification of custody is in the best interest of the child Richard 090299 at pp 6 7 20 So at 1066 3d The evidence presented to the trial court shows that the parties split in April of 2008 because of an affair by Ms Bourg The parties agreed to an alternating seven day custody arrangement because of Mr Chauvin offshore s employment Ms Bourg is employed as a mammography technician in Houma After Ms Bourg moved out of the matrimonial domicile she rented a two bedroom apartment pending the settlement of the community property Ms Bourg has another son from another relationship who was eleven years old at the time of trial and is autistic He also lives with his mother on a week on week off basis Additionally Mrs Bourg mother lives with her during the week and s 4 Further we question the propriety of the imposition of short time limitations in cases involving important issues such as child custody child support and interim spousal support See Lambert v Lambert 062399 p 2 n La 1 Cir 3 960 So 921 923 n 1 App 07 23 2d 1 i helps Ms Bourg financially Ms Bourg mother and her other son share one s bedroom and Ms Bourg and Logan share the other bedroom Ms Bourg testified that her boyfriend James Hyatt spends the night on occasion Ms Bourg also testified that Mr Chauvin drinks heavily and curses in front of the children She stated that after Logan spends a week with his father it takes the first three days to calm him and get him back into his routine Ms Bourg testified that it was in Logan best interest that she be granted domiciliary s custody She stated that she has always been the caregiver for Logan getting him up and dressed and to school She does his homework with him and takes him to the doctor Additionally she stated that she could respond to an emergency situation in five minutes whereas because of Mr Chauvin current s employment he was at least fifty minutes away To the contrary Mr Chauvin testified that he believed it was in Logan s best interest that he be named the domiciliary parent and that Logan attend Bourg Elementary Mr Chauvin was living with his girlfriend in the former family home which is the only home Logan had lived in until the parties split Mr Chauvin testified that he was no longer working offshore but recently began working in Harvey He stated that he was home every evening Mr Chauvin testified that when he was working seven and seven Logan stayed with him when he was inshore and not in daycare He did not like the daycare believing that there were too many children and not enough supervision He also stated that Logan was picking up bad habits at the daycare including bad language and the bad language was not from him Mr Chauvin testified that he drinks but that he does not have a drinking problem He also stated that he believed he could provide a more stable life for Logan than if Logan were with his mother and he did not believe that Logan was safe with her On cross examination Mr Chauvin testified that he leaves for work between 4 and 5 a On the mornings that he has Logan his girlfriend 30 30 m takes Logan to his mother house Mr Chauvin stated that he gets off work s between four and five in the afternoon and that it takes about an hour with I traffic to get home Mr Chauvin admitted that he is gone from the house from about 4 a until six or six thirty in the evening He did state however that 30 m his office has plans to move to Houma Ms Bourg mother testified that her daughter and Mr Hyatt have a good s relationship She notices a change in Logan behavior when he returns from his s s father house Logan is very clingy with his mother but it gets better as the week progresses During their marriage Mr Chauvin was verbally abusive to her daughter and he drank excessively She stated that Mr Chauvin curses but admitted that she had no knowledge of such language being used in front of the children Mr Hyatt testified that he sleeps over at Ms Bourg five to six nights a s week He stated that there is no sex when the children are around He believes that Ms Bourg is a good mother He notices that when Logan returns from his s father house he uses profanity for the first two to three days Stephanie Martin also testified She has been Logan babysitter since he s was about eight months old Ms Martin testified that she used to watch Logan every day including those days when Mr Chauvin was inshore Currently she takes care of Logan only on the days he is with his mother Ms Martin testified that there was a change in Logan behavior after his parents split After being s with Mr Chauvin for a week Logan was aggressive with the other children He was pushy hit others and used bad language Normally by Thursday using time outs there was improvement Then after a week it started all over again Ms Martin stated that Logan is very affectionate with Ms Bourg On cross examination she admitted that she considered Ms Bourg her friend Mr Chauvin argues that the trial court erred because it made no determination that Ms Bourg had met her burden of proving that there had been a change in circumstances Although the trial court gave no oral or written reasons for judgment based on the modification of custody the trial court had to have concluded that there was a change materially affecting Logan welfare s since the original decree Further based on our review of the record we find 10 that a material change in circumstances had occurred since the rendition of the stipulated judgment Mr Chauvin work schedule had changed significantly s His work schedule was such that he was gone from the home from approximately 4 a to 6 p Thus there were real questions as to who 30 m 30 m was watching Logan when he was in the care of his father Additionally the evidence showed a change in Logan behavior since the rendition of the consent s judgment The evidence indicated that Logan behavior was aggressive for s several days after being with his father While Mr Chauvin blamed the behavior on the daycare all other testimony linked Logan behavior to the time s immediately following physical custody with his father Having concluded that Ms Bourg met the first prong of her burden of proof in her request to modify custody we must next consider whether the modification is in Logan best interest In determining the best interest of the s child LSA C art 134 enumerates twelve non exclusive factors considered by the trial court which include 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 11 to be 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 The list of factors set forth in this article is non exclusive and the determination as to the weight to be given each factor is left to the discretion of the trial court LSAC art 134 comment b Elliott v Elliott 100755 p 7 C App La 1 Cir 9 10 10 3d So The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSAC art 134 C but should decide each case on its own facts in light of those factors Moreover the trial court is not bound to give more weight to one factor over another and when determining the best interest of the child the factors must be weighed and balanced in view of the evidence presented Harang v Ponder 092182 p 11 App La 1 Cir 3 36 So 954 963 writ denied 10 0926 La 5 10 26 3d 10 19 36 So 219 3d In this case Mr Chauvin seems to be focusing on Ms Bourg moral s fitness However the trial court determined that both parents were fit and proper persons to have the care custody and control of Logan having indicated such in its Joint Custody Implementation Plan 5 The evidence also indicates that Ms Bourg has been the primary caregiver for Logan and is in the best position to continue to do so Her employment is in Houma whereas Mr Chauvin office is s in Harvey Additionally there were issues regarding Mr Chauvin use of alcohol s and concerns regarding Logan behavior after a week spent with his father s After reviewing the record in its entirety we cannot conclude that the trial court did not consider the factors for awarding custody Accordingly we conclude that the record sufficiently supports the finding that it was in Logan s best interest that Ms Bourg be designated the domiciliary parent Thus we find s We note that in the plan the court also made a provision that neither party was to entertain overnight guests of the opposite sex to whom they were not married while the child was in his or her physical custody 12 no abuse of the trial court discretion and decline to disturb its modification of s the parties custody CONCLUSION For the foregoing reasons the January 15 2010 judgment of the trial court is affirmed Costs of this appeal are assessed against Todd David Chauvin AFFIRMED 13
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