Devereux v. Atkins

224 So. 3d 1160, 2017 WL 2665123, 2017 La. App. LEXIS 1143
CourtLouisiana Court of Appeal
DecidedJune 21, 2017
DocketNo. 51,473-CA
StatusPublished
Cited by1 cases

This text of 224 So. 3d 1160 (Devereux v. Atkins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Devereux v. Atkins, 224 So. 3d 1160, 2017 WL 2665123, 2017 La. App. LEXIS 1143 (La. Ct. App. 2017).

Opinion

PITMAN, J.

hSheena Atkins appeals the ruling of the trial court which denied her motion to dismiss the father’s, Derrick Devereux’s, objection to the hearing officer’s recommendation regarding custody of their child. For the following reasons, we affirm.

FACTS

Derrick Devereux and Sheena Atkins were never married, but had a daughter together in April 2010. The couple lived with their child at Devereux’s mother’s house in Swartz, Louisiana, in Ouachita Parish. In January 2015, Atkins began staying in West Monroe, Louisiana, with her grandmother, who needed medical assistance. In March 2015, Atkins told Dev-ereux that she had a boyfriend who lived near her grandmother.

Because there had never been a judicially determined or court-ordered custody arrangement prior to June 2015, Devereux filed a petition seeking to establish custody and domiciliary status. He alleged that it would be in the child’s best interest that he be named domiciliary parent. Between the period the suit was filed and when it was heard, Atkins married her boyfriend, “Red” Vogt.

On August 18, 2015, Atkins filed an answer and reconventional demand stating she was in a better position to care for the child and to provide her with a structured and stable environment. At the hearing on September 14, 2015, the hearing officer recommended that the parties share joint custody of the minor child, with Atkins being designated as the domiciliary parent and Devereux having visitation every other [1162]*1162weekend and splitting holidays and summer vacation.

laOn September 17, 2015, Devereux filed an “Objection to Hearing Officer Conference Report,” objecting to the recommendation of the hearing officer..The basis of the objection was that the recommendation was allegedly made “taking into consideration the twelve factors set forth in Louisiana Civil Code Article 134,” but those considerations were not''discussed or taken into consideration during the conference. Devereux objected to the findings by the hearing officer and claimed that there was no consideration of the twelve factors, and, further, that, had the hearing officer considered those factors, he (Devereux) would have been considered the more appropriate parent to be granted domiciliary custody of the child. He claimed that this would be proven at the trial and asked that the matter “proceed to hearing as currently scheduled, on all issues” to which he had objected.

On September 24, 2015, the written conference report was filed into the record, and a temporary order adopting and implementing the hearing officer’s recommendations was signed by the trial judge on September 21, 2015. That temporary order contains a paragraph which notes that there is no trial or hearing date currently scheduled and that'it is the responsibility of the objecting party' or parties to file an appropriate pleading requesting' a trial or hekring date no later than 90 days after the filing of the objections or the continuance of the case without date, “or the objections will be deemed abandoned and will be dismissed without prejudice and the report and recommendations of the hearing officer will be adopted as the judgment of the court.”

On December 23, 2015, Devereux filed a motion to set a trial date on the objection he had filed on September 17, 2015, but which was not filed in lathe record until September 24, 2015. The trial court set the matter for trial on the merits for April 12, 2016 which was a date available to both parties’ attorneys. Atkins’s attorney 'did not object to the setting of the court date at that time.

On March 30, 2016, Atkins’s attorney filed an “Ex Parte Motion to Dismiss Objection For Failure to Comply with Local Rule Appendix 35,5” and stated that the hearing date had to be scheduled not later than 90 days after filing of the objection or it would be deemed abandoned and dismissed without- prejudice and the hearing officer’s recommendation would be adopted as the judgment of the court. Atkins claimed that she was entitled to dismissal of Devereux’s objection to the hearing officer’s recommendation because his request for trial was filed later than December 17, 2015, which was over 90 days after the objection was made. The trial court set the motion for hearing on the same date as the trial on the merits-—April 12, 2016.

A trial was held on April 12, 2016, and the motion to dismiss the objection to the hearing officer’s recommendation was the first item to be heard. Both sides presented arguments, and the trial court ruled that the motion, to dismiss would be denied. In so ruling, it stated that, although it found that the motion to set the matter for trial was filed more than 90 days after the objection was filed in the record, there were custody issues which the court needed to review. Further, it stated that the local rules are discretionary and do not provide a “hard and fast” deadline that the court had to follow. For those reasons, the mótion to dismiss was denied.

Thereafter, the merits of the child custody dispute were heard, and the matter was continued until May 24, 2016. On that date, more evidence was | ¿taken, and the trial court gave a ruling in open court, which recited the twelve factors found in La. [1163]*1163C.C, art. 134 and compared the facts of the case to those factors. It awarded joint custody to the parties, designating domiciliary custody of the child to Devereux, with Atkins to-have substantial visitation rights.

On June 10, 2016, Atkins filed a “Request for Written Reasons for Judgment,” which mistakenly stated that the parties “had trial on March 9, 2016 and March 24, 2016” and requested in writing the court’s finding of fact and reasons for judgment.1 In its June 16, 2016 response to Atkins’s request, the trial court granted her request and handwrote the following on its order:

[t]he court’s oral reasons for judgment are hereby adopted as its written reasons for judgment (see below).
This Court orders that its’ [sic'] previously given oral reasons for judgment that were stated at length in open court on the date of this hearing be and are hereby Adopted as its’ [sic ] written reasons for judgment. As these oral reasons previously given were very detailed, either party may'request and pay the appropriate fee of the court reporter to have the court’s oral ruling transcribed and thereby obtain the court’s written reasons.

On July 27, 2016, the trial court issued a judgment which, once again, recited the incorrect dates of the hearings as March 9 and March 24, 2016, and stated that, according to the oral reasons for judgment, a decree was renderéd awarding joint custody of the child to both Devereux and Atkins and designating Devereux as the primary custodial parent (domiciliary parent), subject to Atkins’s visitation as set forth in the plan of joint custody. UThe judgment states that it was rendered in court the 24th day of March, 2016, and that the judgment was signed on July 28, 2016.

On October 4, 2016, Atkins filed an untimely motion for appeal; and, on January 19, 2017, this court issued an order for her to show cause why her appeal should not be dismissed. Her attorney responded with reasons for the delay, which were accepted by this court; and, on February 23, 2017, this court rescinded the rule to show cause and the clerk of this court was directed to reissue briefing deadlines.

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Cite This Page — Counsel Stack

Bluebook (online)
224 So. 3d 1160, 2017 WL 2665123, 2017 La. App. LEXIS 1143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devereux-v-atkins-lactapp-2017.