Evans v. Lites

714 So. 2d 914, 1998 WL 329665
CourtLouisiana Court of Appeal
DecidedJune 24, 1998
Docket30632-CA
StatusPublished
Cited by8 cases

This text of 714 So. 2d 914 (Evans v. Lites) 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
Evans v. Lites, 714 So. 2d 914, 1998 WL 329665 (La. Ct. App. 1998).

Opinion

714 So.2d 914 (1998)

Gary V. EVANS, Plaintiff-Appellee,
v.
Mary DeVaughn Terrell LITES, Defendant-Appellant.

No. 30632-CA.

Court of Appeal of Louisiana, Second Circuit.

June 24, 1998.
Rehearing Denied August 13, 1998.

*915 J.Q. Davis, Coushatta, for Defendant-Appellant.

Wiener, Weiss & Madison by Katherine Clark Hennessey, Shreveport, Richard Zemry Johnson, Jr., Mansfield, for Plaintiff-Appellee.

Before WILLIAMS, STEWART and PEATROSS, JJ.

PEATROSS, Judge.

In this child custody action, Mary DeVaughn Terrell Lites ("Lites") appeals a judgment which awarded sole custody of her minor son to his father Gary Evans ("Evans") and allowed visitation by Lites. Evans answers the appeal, urging that the trial court erred in failing to find Lites abused the child. For the following reasons, we affirm in part, vacate in part, and render.

FACTS

Timothy Tyler Evans ("Tyler") was born to Evans and Lites on August 10, 1990. In a 1993 proceeding, a consent decree was entered awarding joint custody of Tyler to the parties. In 1994, Evans filed a petition for sole custody of Tyler, alleging that Lites abused Tyler. Several interim judgments were issued. After a trial on the merits, the trial court issued a November 1994 judgment which was the subject of the appeal in Evans v. Terrell, 27,615 (La.App.2d Cir. 12/6/95), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96), 672 So.2d 695.

*916 In Evans v. Terrell, supra, this court reversed a grant of physical custody to Tyler's maternal grandparents and amended the judgment to specifically award sole temporary custody of Tyler to Evans, with reduced supervised visitation by Lites. This court remanded the action to the trial court with instructions that a hearing be held in which the trial court should make specific findings of fact to determine whether Tyler had been abused, and if so, by whom. The trial court was further instructed to award joint or sole custody, depending on its findings regarding any abuse and in accordance with the law and the best interest of Tyler.

After a six-day trial, the trial court rendered judgment on July 21, 1997. In his written reasons for judgment, the trial judge stated that he found the evidence "supporting the alleged abuse of Timothy Tyler Evans insufficient to carry the Plaintiff's burden of proof." The trial court awarded sole custody to Evans with one day per week unsupervised visitation by Lites and ordered Lites to undergo a three-month course of counseling with Jeanne Ewing, BCSW, ACSW. The judgment further ordered that at expiration of the three-month period and, in light of a favorable report by Ewing, Lites would be allowed reasonable visitation with Tyler every other weekend, six weeks during the summer, and alternate major holidays.

Lites appeals and Evans answers, each asserting four assignments of error.

DISCUSSION

Abuse

We first address Evans' assignment of error that the trial court erred in failing to find sufficient the evidence regarding the alleged abuse of Tyler. Evans argues that the evidence shows Lites whipped Tyler hard enough to cause a bruise and deliberately burned Tyler's hand with an iron. Evans cites as support the testimony of Dr. Edward Gustavson, an expert in pediatrics and child abuse, who testified that a burn on Tyler's hand was intentionally inflicted. Evans also stresses the testimony of Dr. Thomas Moss, an expert in physics and accident reconstruction, who testified that Lites' explanation of the accidental nature of the burn was implausible.

In response, Lites contends that the trial court correctly found insufficient the evidence regarding her alleged abuse of Tyler. She stresses that Dr. Gustavson did not inspect the iron or the area in which the burn occurred, but merely reviewed photographs and videos. Lites emphasizes the testimony of Dr. Harvey Carter, an expert in pediatrics and Tyler's treating pediatrician at the time of the burn. Dr. Carter, who actually examined the wound shortly after the burn occurred, stated that he believed the burn to be accidental and did not suspect abuse. Lites further stresses the testimony of Dr. Terry Welke, a forensic pathologist, who testified that the burn could have been an accidental injury. Additionally, Lites relies on the testimony of Dr. Millard Bienvenu, an expert in counseling and child abuse, who testified that he believed Lites was not an abusive parent and that Tyler's development did not suggest an abusive history.

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the lower court. When findings of fact are based on determinations regarding the credibility of witnesses, the manifest error/clearly wrong standard demands great deference to the trier of fact's findings. Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in that which is said. Rosell v. ESCO, 549 So.2d 840 (La.1989); Freeman v. Rew, 557 So.2d 748 (La.App. 2d Cir.1990), writ denied, 563 So.2d 1154 (La.1990).

In his written reasons, the trial judge stated that the burn incident and a "whipping" incident caused him concern in determining whether Tyler had been abused. The trial judge noted that compelling testimony was given by Dr. Gustavson that the burn on Tyler's hand was intentionally inflicted. The *917 trial judge further stated, however, that he found credible the testimony of Lites' daughter Angel, who stated that she and Lites were together in another room when Tyler's hand was injured. Regarding the "whipping" administered by Lites, the trial judge noted that Dr. Bienvenu testified that he did not believe the incident constituted abuse. The trial judge found, therefore, that although the incidents gave "cause for great concern," the evidence was insufficient to establish abuse.

A trial court may evaluate expert testimony by the same principles that apply to other witnesses and has great discretion to accept or reject medical or lay opinion. The weight to be accorded to testimony of experts depends largely on their qualifications and the facts on which they base their opinions. Morris v. Allstate Ins. Co., 25,148 (La. App. 2d Cir. 2/23/94), 632 So.2d 1209, writ denied, 94-1044 (La.6/17/94), 638 So.2d 1099; Durkee v. City of Shreveport, 587 So.2d 722 (La.App. 2d Cir.1991), writ denied, 590 So.2d 68 (La.1991). Weighing the medical and lay testimony presented, the trial court could reasonably have found the burn to be accidental and the evidence insufficient to support a finding of abuse. This court will not disturb reasonable evaluations of credibility and reasonable inferences of fact. Rosell, supra; Freeman, supra. This assignment of error is without merit.[1]

Custody

In two assignments of error, Lites contends the trial court erred in granting sole custody of Tyler to Evans. Lites argues that Evans failed to establish a sufficient change in circumstances to support a modification of custody.

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Bluebook (online)
714 So. 2d 914, 1998 WL 329665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-lites-lactapp-1998.