Michelle Malbrough VS Sprinivas Vishnubhotla
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CU 1397 MICHELLE MALBROUGH VERSUS SRINIVAS VISIINUBIIOTLA DATE OF JUDGMENT DEC 2 010 ON APPEAL FROM THE TWENTYFIRST JUDICIAL DISTRICT COURT NUMBER 9804086 DIVISION A PARISH OF TANGIPAHOA STATE OF LOUISIANA HONORABLE W RAY CHUCZ JUDGE Rusty Savoie Covington Louisiana Counsel for PlaintiffAppellee Michelle Malbrough Greg Gouner Counsel for Defendant Appellant Sonya D Ryland Baton Rouge Louisiana Srinivas Vishnubhotla BEFORE KUHN PETTIGREW AND KLINE JJ Disposition TRIAL COURT JUDGMENT AFFIRMED ANSWER TO APPEAL DENIED IYhe Honorable William F Kline Jr is serving Xrro teml by special appointment of the ore Louisiana Supreme Court nrJ i Rtw 1 a C una v a Otn C R G l wvs uc KUHN J This appeal involves a father challenge to the trial court suspension of s s his right to visit his rninor child Sebastien Antoine Malbrough We affirm the trial court judgment We further deny the mother answer to the appeal that s s seeks damages on the basis that the father appeal is frivolous s I PROCEDURAL AND FACTUAL BACKGROUND Michelle Malbrough and Sriniva Vishnubhotla were never married but had a relationship of which one child Sebastien was born in October 1998 The parties do not dispute that they never resided together after Sebastien birth s December 1998 Malbrough filed a petition seeking sole custody In however pursuant to an August 11 1999 consent judgment the court granted joint custody of Sebastien to the parties with Malbrough as domiciliary parent subject to reasonable visitation in favor of Vishnubhotla the During infrequently and approximately six several next was largely absent years Vishnubhotla years from passed during visited s Sebastien which life Vishnubhotla Sebastien A did very period of not visit Sebastien During at least part of that time Visnubhotla resided in Texas and was working on a doctoral degree Malbrough has resided in Covington Louisiana 2 s Malbrough petition also sought to establish paternity and to recover child support The August 11 1999 consent judgment declared Vishnubhotla to be Sebastien father and ordered s him to pay monthly child support 3 During this period of tinge Vishnubhotla requested the opportunity to visit Sebastien on a couple of occasions but Malbrough did not agree to the visitations On one occasion she advised Vishnubhotla that there had been a great loss in our life that had left Sebastien really distraught At trial Malbrough explained that her grandmother had died with whom Sebastien had a close relationship On another occasion Malbrough advised that Sebastien previously s scheduled activities conflicted with the requested visitation 2 In September 2009 Vishnubhotla while still residing in Texas filed a rule to show cause to Malbrough establish specific visitation rights that was opposed by Pursuant to a December 7 2009 consent judgment the trial court implemented the provisions of the parties joint stipulation whereby they agreed that supervised visitations would occur between Sebastien and Vishnubhotla on December 18 and 1 9 2009 and on January 30 and 31 2010 On January 22 2010 Vishnubhotla filed a rule to show cause why Malbrough should not be held in contempt based on her refusal to honor the visitation agreement outlined in the December 2009 consent judgment Vishnubhotla also sought primary custody of Sebastien or unsupervised visitation with more visitation than previously allowed in either the original consent decree or the subsequent December 2009 consent judgment Vishnubhotla asserted that Malbrough had informed him after the December visitations had transpired that she would no longer permit him to have contact with Sebastien Malbrough responded by tiling a rule to modify visitation wherein she prayed for the suspension of Vishnubhotla visitation based on the significant adverse impact s that the December 18 and 19 2009 visits had on Sebastien At the hearing on the parties opposing rules Malbrough described Sebastien as initially being a special ed kid who was nonverbal until he was three and a half years old due to a hearing loss in his left ear She also related that Sebastien had been diagnosed with a learning disability and attention deficit disorder and she described him as an extremely anxious child She testified that her boyfriend of many years Karl Keiger had assumed the role of Sebastien s father by teaching him taking him on outings supporting him financially and 3 otherwise taking an active role in his life Malbrough explained that due to the close relationship between Keiger and Sebastien he identified Keiger as his father and called him Dad She further alleged that until Sebastien entered second grade he was unaware that Keiger was not his biological father Malbrough informed him otherwise while he was under the care of Dr Colomb a psychiatrist for anxiety and attention deficit hyperactivity disorder At trial Malbrough testified that Sebastien became very upset when he learned of the proposed visitations She stated that immediately after the first December 2009 visit with Vishnubhotla Sebastien began to worry that his family was going to be taken away from him and he became violent and abusive Malbrough also explained that Sebastien did not want to return to see Vishnubhotla and she had to force him to comply with the scheduled visitation on the following day After that next visit Sebastien began to describe in detail how he would kill himself Malbrough also offered the testimony of Dr Colomb who was accepted by the court as an expert in the field of psychiatry When Malbrough offered Dr s Colomb expert testimony Vishnubhotla stipulated that Colomb was qualified to testify as an expert in the field of psychiatry Dr Colomb testified that although he had never met Vishnubhotla he had treated Sebastien for four to five years and that Sebastien anxiety regarding the visitations with Vishnubhotla was very s tangible and totally different from his baseline anxiety Dr Colomb recommended that the forced visitations between Sebastien and his father should not continue at this time Dr Colomb explained that after the December 2009 visits Sebastien was grossly overwhelmed sad and depressed and he pleaded 4 for the visits not to occur again Dr Colomb opined that if the court were to order continued visitations with Vishnubhotla Sebastien personality would change s grossly and it would cause catastrophic harm to him Dr Colomb further elaborated that Sebastien would be at a risk of self harm and that the potential for the forced visits absolutely contributes to Sebastien wanting to hurt himself Dr Colomb further testified that Sebastien bond is with his mother s and Keiger rather than with Vishnubhotla Dr Colomb opined that it was not in s Sebastien best interest to be subjected to visitations with Visnubhotla at this time he testified there may be a time in the future at which Sebastien emotional s state would be more stable Vishnubhotla testified that prior to the December 2009 visits he had last seen Sebastien in 2003 Vishnubhotla described that during the first of the December 2009 visits Sebastien was very affectionate and very friendly but on the second day Vishnubhotla described that Sebastien was angry and very quiet Vishnubhotla also stated that during this visit Sebastien asked him to forfeit his rights so that my Dad can adopt me Although Vishnubhotla admitted to being nervous prior to the December 2009 visits and acknowledging that Sebastien was probably nervous too he further admitted that he was late for both of these visits Vishnubhotla being of Indian descent denied any intention of returning to India or removing Sebastien from his mother At the conclusion of the hearing the trial court denied Vishnubhotla rule s and granted Malbrough rule s ordering the s suspension of Vishnubhotla visitation rights reasoning in pertinent part I have heard evidence from a competent treating physician who has testified R this child condition is such s that if this visitation continues it will have severe detrimental effects on the child There is no evidence to the contrary In accordance with the judgment rendered the trial court signed a written judgment dated March 15 2010 Visnubhotla appealed urging that the trial court erred in l suspending his visitation relying largely on the testimony of Dr Colomb to the exclusion of the best interest of the child factors set forth in La C art 134 2 refusing to allow a psychological evaluation of all of the parties 3 allowing Malbrough to benefit from preventing his contact with Sebastien and in failing to recognize that she did not foster a harmonious relationship between Sebastien and him and 4 failing to recognize the cultural issues inherent in this case Pursuant to this appeal Visnubhotla prays that the trial court suspension of his visitation rights s be reversed Malbrough has answered the appeal seeking an award for damages and costs pursuant to La C art 2164 on the basis that Visnubhotla appeal P s is frivolous II ANALYSIS Louisiana Civil Code article 131 prescribes that the court shall award custody of a child in accordance with the best interest of the child Louisiana Civil Code article 134 mandates that the court shall consider all relevant factors in determining the best interest of the child It then enumerates twelve factors 4 During the hearing Visnubhotla offered no expert testimony to counter the testimony of 1 r Colomb or to support his position that he should have primary custody or increased unsupervised visitation 6 that may be relevant to the best interest determination But the court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134 It should decide each case on its own peculiar set of facts and the relationships involved In re Custody of Rivard 042573 p 3 La App 1 st Cir 2 1105 906 1 2d So 544 546 A party seeking a modification of a custody decree where the underlying decree is a stipulated judgment as opposed to a considered decree of permanent custody must prove that there has been a change in circumstances materially affecting the welfare of the child since the original or previous custody decree 5 The enumerated factors set Forth in Louisiana Civil Code article 134 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 hornes 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 l 1 The distance between the respective residences of the panics 12 The responsibility for the care and rearing of the child previously exercised by each party 7 was entered and that the proposed modification is in the best interest of the child Elliott v Elliott 100755 p 4 La App I st Cir 9 10 10 3d So On appeal a trial court assessment of the probative value of the evidence is s accorded great weight and will not be disturbed absent a clear abuse of discretion In re Custody ofRicard 04 2573 at p 3 906 So at 546 2d Based on Dr Colomb testimony we conclude that the trial court did not s abuse its discretion in implicitly finding that the visits with Visnubh and their otla adverse effect on Sebastien constituted a change in circumstances that materially affect Sebastien Further we find no error or abuse of discretion in the trial s court reliance on Dr Colomb testimony to support its determination that the s suspension conclusions of visitation were was in uncontradicted s Sebastien and placed best interest paramount Dr consideration s Sebastien mental and physical health and his stated preferences 7 134 and 9 s Colomb on La C art Counsel for Visnubhotla made no formal request for further evaluations by other mental health professionals and even if such a request had been made the trial court was not mandated to grant such a request See La R S 331 9 Elliott 10 0755 at p 3 3d So at Accordingly we find no abuse of discretion in the trial court decision not to order additional psychological s evaluation Id 6 Louisiana Revised Statutes 9 provides in pertinent part as follows 331 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 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 8 We recognize that the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party is one of the factors that a trial court may consider in determining the best interest of a child La C art 134 Although the record demonstrates that 10 there were at least two instances when Visnubhotla asked to see Sebastien and Malbrough did not grant these requests we cannot say that the trial court did not consider or give appropriate weight to this factor in making his determination to suspend visitation Whether Malbrough has failed to foster a relationship between Sebastien and Visnubhotla is not a compelling factor at this juncture in light of Dr s Colomb testimony that the visitations have increased Sebastien anxiety have s caused him to want to hurt himself and are not in Sebastien best interest at this s time Additionally we find no evidence to support Visnubhotla claim that the s trial court did not appropriately consider Sebastien Indian descent or his need for s a continued awareness of his cultural heritage We conclude that the trial court s uppermost concern was to ensure the health and safety of Sebastien by suspending the visitations with Visnubhotla and we find no abuse of discretion in the trial s court decision to grant Malbrough rule s Lastly in an answer to Visnubhotla appeal Malbrough claims the appeal s is frivolous and seeks to recover appropriate damages cost and other s sanction Although the recovery of damages for frivolous appeal is authorized by La C art 2164 our courts have been very reluctant to grant such damages P under this article as it is penal in nature and must be strictly construed Taylor v Hanson North America 082282 p 10 La App 1 st Cir 8 21 So 963 09 4 3d 970 Additionally because appeals are favored in our law penalties for the filing 9 of a frivolous appeal will not be imposed unless they are clearly due Lorne Memorial Hosp v Gay 03 0701 p 8 La App 1 st Cir 2 873 So 682 04 23 2d 687 Damages for frivolous appeal will not be awarded unless it appears that the appeal was taken solely for the purpose of delay or that the appellant counsel s does not seriously believe in the position he advocates Taylor 08 2282 at p 10 21 3d So at 970 Based on our review of this matter we conclude that s Visnubhotla counsel seriously believed the position they advocated and that s Visnubhotla appeal was apparently motivated by a desire to have contact with his son Accordingly the criteria for awarding damages for frivolous appeal are not met and we therefore deny Malbrough answer s III CONCLUSION For these reasons we affirm the trial court judgment which granted s s Malbrough rule to modify visitation and ordered the suspension of Sebastien s visitations with his biological father Visnubhotla Malbrough answer to the s appeal is denied Appeal costs are assessed against Visnubhotla TRIAL COURT JUDGMENT AFFIRMED ANSWER TO APPEAL DENIED 10 MICHELLE MALBROUGH NUMBER 2010 CU 1397 VERSUS COURT OF APPEAL SRINIVAS VISHNUBHOTLA FIRST CIRCUIT STATE OF LOUISIANA BEFORE KUHN PETTIGREW JJ and KLINE J pro tempore L I I IGREW J CONCURS AND ASSIGNS REASONS If I had been the trial judge I would have maintained the restricted visitation rights in favor of Srinivas Vishnubhotla pursuant to the stipulated consent judgment of December 7 2009 However considering the limited record before us I cannot say the trial court committed a clear abuse of discretion Martello v Martello 20060594 p 5 La App 1 Cir 3 960 So 186 191 192 For these reasons I will concur 07 23 2d with the majority Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CU 1397 MICHELLE MAI BROUGH VERSUS SRINNAS VISHNUBHOTLA Kline J concurs and assigns reasons Under the evidence presented in this case I agree that the trial court s judgment should be affirmed It is important to note however that the trial court s judgment does not terminate Mr Vishnubhotla exercise of physical custody s Rather it suspends it Thus the trial court has not rendered any final ruling on Mr s Vishnubhotla right to exercise periods of physical custody with his son In fact the judgment is made pending further order of this court Accordingly the heavy double burden imposed under Bergeron v Bergeron 492 So 1193 La 1986 2d for changes to a considered custody decree will not apply to a hearing to modify the suspension of exercise of physical custody The court and the parents should encourage and foster a close and continuing relationship between Mr Vishnubhotla and his child See La C art 134 10 Further La R 9 requires that the non domiciliary parent should have S 335 frequent and continuing contact with his children to the extent it is in the best interest of the child which is the paramount determination 1 This factor requires the trial court to consider in its custody determination t willingness and ability of each he party to facilitate and encourage a close and continuing relationship between the child and the other party Louisiana Revised Statutes 9 provides as follows 335A A 1 In a proceeding in which joint custody is decreed the court shall render a joint custody implementation order except for good cause shown a 2 The 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 frequent and continuing contact with both parents Here on another note the parties and the trial court utilized the customary vernacular meaning of the term visitation Throughout the transcript the parties refer to the exercise of physical custody as visitation As this court discussed in Cedotal v Cedotal 051524 p 5 La 1 Cir 11 927 So 433 436 App 05 4 2d however Whe time that parents with joint legal custody share with their child is more properly described as a physical custody allocation of a joint custody plan rather than as visitation Physical custody is actual custody Id Even so the trial s court judgment does not affect the joint legal custody previously ordered by the court in a consent decree By contrast Louisiana Civil Code art 136 controls and governs visitation This article grants visitation to a parent not granted custody or joint custody of a child and under extraordinary circumstances to relatives former stepparents and step grandparents when in the best interest of the child Continued b To the extent it is feasible and in the best interest of the child physical custody of the children should be shared equally Q The implementation order shall allocate the legal authority and responsibility of the parents Louisiana Civil Code art 136 provides as follows in pertinent part Art 136 Award of visitation rights A A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds after a hearing that visitation would not be in the best interest of the child B Under extraordinary circumstances a relative by blood or affinity or a former stepparent or stepgrandparent not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child 2
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