Earles v. Ahlstedt

591 So. 2d 741, 1991 WL 255252
CourtLouisiana Court of Appeal
DecidedNovember 22, 1991
Docket90 CA 1607
StatusPublished
Cited by25 cases

This text of 591 So. 2d 741 (Earles v. Ahlstedt) 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
Earles v. Ahlstedt, 591 So. 2d 741, 1991 WL 255252 (La. Ct. App. 1991).

Opinion

591 So.2d 741 (1991)

Judy Wise Ahlstedt EARLES
v.
James L. AHLSTEDT.

No. 90 CA 1607.

Court of Appeal of Louisiana, First Circuit.

November 22, 1991.

*742 Harley M. Brown, Baton Rouge, for Judy Earles.

John E. Conery, Franklin, for defendant/appellee.

Before SHORTESS, CARTER and LANIER, JJ.

SHORTESS, Judge.

Judy Wise Ahlstedt Earles (plaintiff) appeals from two judgments of the district court that order James L. Ahlstedt (defendant) be permitted visitation with their minor daughter, Amanda Ahlstedt (Amanda), during the summer of 1989, as well as a third judgment which taxes plaintiff with attorney fees, costs, and litigation expenses. Defendant moved to dismiss the appeal on the ground of mootness.

FACTS

A brief recitation of the facts is necessary in order to more fully understand the status of this case on appeal.[1] Plaintiff and defendant were married in April 1982, in Louisiana. They immediately moved to Kansas, where Amanda was born in October 1982. They separated in 1985. The Kansas court awarded the parties joint custody of Amanda. Defendant was to have custody one night per week and every other weekend. However, plaintiff returned to Louisiana with Amanda in November 1985, allegedly without notice to defendant and without informing him of their whereabouts.

Plaintiff and defendant were divorced on May 8, 1986, in Kansas. The Kansas court awarded plaintiff and defendant joint custody of Amanda at that time. Plaintiff was designated primary custodial parent, but *743 defendant was given the right to visit Amanda any time he was in Louisiana. Defendant was also given visitation rights at Christmas and during the summer.[2] These visits were to take place in Louisiana until Amanda was old enough to fly alone. The court stated it would give serious consideration to altering the custody rulings drastically if either party acted irresponsibly.

In May 1988 plaintiff filed a petition in St. Mary Parish District Court to recognize the Kansas decree under the provisions of the Uniform Child Custody Jurisdiction Act and to restrict defendant's visitation rights. She asked that a curator be appointed to represent defendant, which was done. Defendant responded by filing a motion in the Kansas court requesting an increase in his visitation privileges, contending plaintiff had continually denied his attempts at visitation with Amanda. Plaintiff responded to this motion in Kansas by contending Kansas no longer had jurisdiction over the matter. The court in Kansas held it had continuing jurisdiction on December 13, 1988. On December 23, 1988, it ordered defendant have primary custody for June and July of 1989. The court also ordered greatly increased visitation privileges.

On December 28, 1988, however, plaintiff had the Louisiana case set for hearing. Plaintiff was granted temporary sole custody of Amanda pending the hearing.

John E. Conery, the curator appointed to represent defendant in Louisiana, filed various exceptions. Defendant's exceptions included an exception raising the objection of res judicata. (Defendant contended the custodial rights of the parties had been fully litigated in the Kansas court.) Defendant also urged the exception raising the objection of lack of subject matter jurisdiction. The exceptions were heard on February 10, 1989. The court partially sustained the exception raising the objection of res judicata, holding it was bound by the decision of the Kansas court regarding any question of prior improper actions by defendant predating the hearing in Kansas of May 8, 1986. The Louisiana court also held it had concurrent jurisdiction with the Kansas court.

On March 22, 1989, based on the stipulations of the parties, the court ordered that the judgment of the Kansas court be fully implemented as it pertained to custody of and visitation with Amanda, with some modifications; that defendant be punctually notified in writing of any changes in plaintiff's address or telephone number; and that plaintiff be taxed with all costs, including Conery's curator fee of $1,700.00. On April 20, 1989, the trial court signed a judgment regarding the February 10 and March 22, 1989, hearings.

Plaintiff then applied to this court for a stay of the portion of the April 20, 1989 judgment regarding June visitation originally implemented by the Kansas court. While the stay application was pending, plaintiff moved from St. Mary Parish to Baton Rouge without properly notifying defendant. On April 27, 1989, defendant filed a motion to have plaintiff held in contempt of court for failing to notify him of the change of address and for failing to allow him contact with Amanda. He also asked to be named the primary custodial parent. This hearing was set for June 30, 1989. We then granted the stay because the visitation issue was scheduled to be further addressed by the district court at a hearing on June 30, 1989.

On May 2, 1989, the court held plaintiff in civil contempt and sentenced her to five days in the parish jail. He suspended the sentence on the provision that she purge herself of the contempt by scrupulously carrying out all of the custody and other provisions of both the Louisiana and Kansas courts. Costs were again assessed against plaintiff.

Plaintiff failed to pay the curator fees and other court costs assessed against her. Defendant then filed a motion to tax costs, requesting that plaintiff be assessed with all attorney fees in connection with the *744 custody proceedings, as well as court costs, expert fees, and travel expenses of defendant and his wife pursuant to LSA-R.S. 13:1714(B). The motion was set for hearing on July 10, 1989, the date of the custody hearing. (The hearing had originally been scheduled for June 30, 1989.)

Plaintiff then sought a stay from this court of the July 10, 1989 hearing based on her counsel's "conviction" the court would rule against her. The stay was denied on July 6, 1989.

On July 7, 1989, plaintiff moved to recuse the trial judge, Michael C. McNulty, alleging Judge McNulty was biased and prejudiced against her. Judge McNulty denied the motion on the date it was filed but, pursuant to article 154 of the Louisiana Code of Civil Procedure, ordered a hearing before Judge Anne L. Simon. Plaintiff moved to continue that hearing, which was scheduled before the hearing on the custody rule on July 10, 1989, alleging she was unable to subpoena witnesses or obtain evidence material to her case by the hearing date.

Judge Simon heard arguments on the motion to continue on July 10, 1989. Plaintiff's counsel contended he was unable to subpoena plaintiff's two previous attorneys to testify at the hearing on the motion to recuse because of the short time period between the filing of the motion to recuse and the hearing. However, Judge Simon denied the motion to continue, holding that plaintiff's allegations of acts by Judge McNulty showing prejudice against her took place over the course of more than a year, and that plaintiff had ample opportunity to file the motion to recuse before July 7. She then heard plaintiff's testimony and arguments of counsel on the motion to recuse.

Judge Simon succinctly summarized plaintiff's testimony on the motion to recuse as follows:

Mrs. Earles has testified in narrative form her version of the history of this matter. Obviously, she's extremely unhappy with how it has progressed.

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Cite This Page — Counsel Stack

Bluebook (online)
591 So. 2d 741, 1991 WL 255252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earles-v-ahlstedt-lactapp-1991.