Evans v. Terrell

665 So. 2d 648, 1995 WL 713750
CourtLouisiana Court of Appeal
DecidedDecember 6, 1995
Docket27615-CA
StatusPublished
Cited by25 cases

This text of 665 So. 2d 648 (Evans v. Terrell) 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. Terrell, 665 So. 2d 648, 1995 WL 713750 (La. Ct. App. 1995).

Opinion

665 So.2d 648 (1995)

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

No. 27615-CA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 1995.
Rehearing Denied January 18, 1996.

*649 Richard Z. Johnson, Jr., Mansfield, Lewis O. Sams, Coushatta, Kenneth Rigby, Shreveport, for Appellant.

Gary Fox, Shreveport, for Appellee.

Before NORRIS, BROWN and WILLIAMS, JJ.

WILLIAMS, Judge.

In this child custody action, petitioner Gary Evans appeals a judgment awarding physical custody of his minor son to both him and the maternal grandparents, and allowing supervised visitation by the child's mother, defendant Mary Terrell. For the following reasons, we amend, affirm and remand with instructions.

FACTS

The plaintiff, Gary V. Evans, a married man, and the defendant, Mary DeVaughn Terrell, a single woman, are the parents of a child, Timothy Tyler Evans, ("Tyler"), born on August 10, 1990. Evans executed an acknowledgment of paternity and is named as the father on Tyler's birth certificate. Evans has financially supported the child since birth, and paternity is not an issue in this proceeding.

At some time in 1994, problems arose in the relationship between Evans and Terrell. Consequently, Evans filed a petition for sole custody of the minor child, alleging that Terrell frequently interfered with his access to the child, and that she had physically and verbally abused Tyler. According to Terrell's testimony, her decision to break off the affair prompted a "violent" confrontation with Evans. For that reason, she was afraid to let him visit Tyler. Several interim judgments were issued in August and September 1994, prior to the trial on the merits. These judgments set forth custodial arrangements and visitation schedules pending further orders of the court.

In August 1994, the trial court appointed Dr. Millard Bienvenu, of Northwest Counseling Services, to perform an evaluation of the parties and the minor child. At a hearing held in November 1994, Dr. Bienvenu concluded that an injury was inflicted on Tyler. However, he did not make a determination regarding child abuse. He testified that Terrell admitted that she gave the child a severe whipping in May 1993. Dr. Bienvenu recommended a "temporary time sharing" between the father and maternal grandparents, with the mother visiting Tyler in the grandparents' home.

Evans testified that he noticed marks and bruises on Tyler in May 1993. When asked what happened, the boy answered that his mother whipped him with a belt because he would not take his medicine. According to Evans, the couple argued and Terrell agreed to seek counseling, but never attended. Evans also stated that he saw Terrell push and physically shake Tyler. The child also suffered from ear infections and was seen by Evans' brother, Dr. Jeffrey Evans, who found a hearing loss. Dr. Evans referred Tyler to Dr. Judd Chidlow in Shreveport. Dr. Chidlow reported that Tyler had chronic recurrent tonsillitis and adenoiditis, with serious otitis media and conductive hearing loss in the right ear. Evans further testified that in May 1994, he and his wife discovered and videotaped new marks and bruises on Tyler's body.

Tyler was also seen by Dr. Edward Gustavson, a specialist in pediatric medicine on the staff of LSU Medical School. Dr. Gustavson testified that he examined Tyler and found fluid in each ear, a burn on the back of his hand and numerous bruises on his body. Dr. Gustavson opined that Tyler's ear problems had been improperly treated and that the burn on his hand, which showed scarring of a deep burn, could not have been caused *650 by an iron falling accidentally. Dr. Gustavson also reviewed the videotape and stated that a linear, wide mark across Tyler's chest was quite typical for a bruise from a belt. He also pointed out that the multiple bruises on the child's lower extremities seemed to be the imprint of fingertips, caused by very forceful grabbing. Dr. Gustavson testified that the bruises were not normal for a child of Tyler's age and indicated physical abuse.

Dr. Bruce McCormick, a psychologist, testified that Tyler had informed him that Terrell's boyfriend, Jerry, had whipped him with a big black belt. Tyler also told Dr. McCormick that he was afraid of Jerry. In response to the trial court's questions, Dr. McCormick stated that he did not find that Tyler suffered from battered child syndrome. Jeanne Ewing, a board certified social worker, evaluated Tyler and interviewed Evans, his wife and Terrell. She described herself as an advocate for the child. Ms. Ewing testified that the child told her that he did not have a bed at his mother's house. When Jerry was there, Tyler slept on the floor because the bed moved too much and he did not like that. Ms. Ewing also testified that Tyler described being whipped by his mother and Jerry.

Terrell testified that she did not cause the bruises on Tyler's body and that she did not know how they happened. She maintained that the burn on Tyler's hand occurred at her home when the child grabbed the cord and pulled the iron down from the ironing board. Elizabeth Maniscalco, a licensed mental health counselor, interviewed Tyler and concluded that his answers had been coached by Evans. Ms. Maniscalco testified that despite the testimony of the physicians, the videotape and the bruises on Tyler, she did not have a problem with Terrell serving as the domiciliary parent.

On November 3, 1994, the trial court issued a ruling, finding that Tyler does not suffer from battered child syndrome. However, the trial court was "concerned" by the testimony of Dr. Gustavson and other experts regarding possible child abuse. The trial court stated that their testimony supported the recommendation of Dr. Bienvenu, who suggested a temporary time sharing plan, which preserved the relationship between the minor child and each parent. In its written reasons for judgment, the court determined that individual counseling was necessary for both parents. However, the final judgment does not order any type of counseling. The trial court's written reasons and its final judgment, signed on November 28, 1994, granted physical custody to Evans during the week and to the maternal grandparents on weekends, with supervised visitation for Terrell at the grandparents' home. The trial court further ordered that this custodial arrangement would be re-evaluated in May or June 1995. Evans appeals the trial court's judgment.

DISCUSSION

The parties disagree about the effect of previous custody proceedings conducted in Caddo Parish on July 6, 1993. Appellee, Terrell, argues that the court made a considered decree of custody that requires the party seeking a change to prove that continuation of the custody arrangement is so deleterious to the child as to justify modification. Evans argues that the prior custody ruling was not a considered decree and that he needed only to prove a change in circumstances to justify modification.

When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody, or of proving by clear and convincing evidence that any harm likely to be caused by a change in environment is substantially outweighed by the advantages to the child. Barnes v. Cason, 25,808 (La.App. 2d Cir. 5/4/94), 637 So.2d 607, writ denied, 94-1325 (La. 9/2/94), 643 So.2d 149.

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Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 648, 1995 WL 713750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-terrell-lactapp-1995.