Roy Avants VS Kendell Outlaw
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I NOT DESIGNATED FOR Pi1BLICATION T LOiJISIANA CC J OF APP T AL FIRS II T CIJ NO 2013 CU 0072 ROY AV TS N VERSUS DELL FLAW KEI JU 7udgment Render MAY 3 1 2 013 rJn Appeal from the 21st Judicial Dis Court ract In and for the Parish cf Livingston Stat of Louisiana Tial Cou No 136810 t Honorable Way Ray Chutz Judge Presiding xe x Angelia F Huszar Attorney for Plaintiff Appellee Hammond LA IZoy A s an C Glenn Westmoreland Attorney f I7efendant rl ppellant gston Livin LA Kendeil Outlavs BEFORE WFIIPPLE C McCLENDON AND IIGGINBOTHAM JJ J rc J ssY HIGGINBOTHAM J In this child custody case the mother appeals a judgment in which the trial court granted sole custody of the parties minor child to the father subject to the mother supervised visitation For the following reasons we s vacate the judgment 9f the trial court and remand this matte for further r proceedings FACTS AND PROCEDURAL HISTORY Ms Kendell Outlaw and Mr Roy Avants had one child Mylie Avants who was born January 9 2008 The parties were never married but briefly resided together after the child birth According to the record the s parties shared custody of Mylie without a custody agreement established by the court Instead the parties agreed that Mylie would be with Mr Avants every Tuesday and Thursday and three weekends a month and with Ms Outlaw the remaining time On April 13 2012 Mr Avants commenced the instant child custody proceeding by filing a motion for joint custody of Mylie with Mr Avants designated as domiciliary parent subject to visitation on the part of Ms Outlaw On August reconventional demand 16 2012 Ms Outlaw fled an answer and requesting joint custody and child support On August 20 2012 Ms Outlaw requested a continuance because there was outstanding discovery and she wanted her answer and reconventional demand to be heard on the same day Her request for continuance was denied in open court and the matter was heard on that day After the hearing on September 13 2012 judgment was signed granting sole custody to Mr Avants Ms Outlaw was granted supervised visitation every other weekend but was not allowed any overnight visitation It is from this judgment that Ms Outlaw appeals 2 Ms Outlaw contends that the trial court erred when it ended the trial and ruled on the merits before Mr A rested and without allc Ms ants wing Outlaw to present her evidence After hearing from orily three witnesses befor 1VYr Avants rested and before Ms Outlaw presented her case the trial court stated Normally I am inclined to allow the parties to ea11 within reason any and all witnesses they want to call But having heard from the father and mother in this case based upon what I have heard I can timagine anything else I could hear that could possibly cause me to change what my opinion is at this point in this case So even if it is over the objection of either side I am inclined to go ahead and issue a ruling The trial court then issued its ruling awarding sole custody to Mr Avants even though sole custody was not prayed for by either party Louisiana Constitution Article I Sec 22 guarantees due process to all litigants providing All courts shall be open and every person shall have an adequate remedy by due process of law and justice administered wiYhout denial partiality or unreasonable delay for injuay to him in his person property reputation or other rights A court has the pawer to cantrol its proceedings pursuant to La Code Civ P art I631 A which provides in pertinent part 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 However the court power under La Code Civ P art 1631 to control trial s proceedings 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 guarantee litigants a right to a fair hearing 3 A review r the tria trans hea clearly reveals that the trial f ript ein court unnecessaril hurried this tnatter aPong not allowing either party to complete their case Further the trial court indicated it would do no good for the attorneys to object because the trial cour opinion was already s formed Although the trial court has the authority pursuant to La Code Civ P art 1631 to conduct proceedings in an orderly and expeditious manner this autharity cannot outweigh the need to have a full trial on the merits with adequate time to present witnesses and allow for cross Kinney examination v Bourgeois 2006 La App 1st Cir 9 unpublished 962 2384 2007 14 2d So 1234 table writ denied 2007 La 1 973 So 730 2026 08 7 2d The trial court decision to rend judgment prior to giving Ms s r Outlaw the opportunity to present her evidnce prevented Ms Outlaw from having a fair hearing and prejudiced her right to due process See La Const art I Therefore we remar this matter to the trial court in order to 22 d allow Ms Outlaw the opportunity to present her evidence For these reasons we vacate the September 13 2012 judgment and remand this matter to the trial court for further proceedings consistent with this opinion JUDGMENT Vf1CATED I2EMANDED Mr Avants did not rest prior to the trial court ruling Therefore he also should be s given the opportunity to complete the pxesentation of his evidence 4 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CU 0072 ROY AVANTS VERSUS i KENDELL OUTLAW McCLENDON J agrees and assigns additional reasons While the evidence presented raises serious concerns regarding the best interest of the child should Ms 0utlaw be awarded joint custody I agree with the majority that due process requires a full hearing to allow both parties to present their evidence prior to final adjudication by the court
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