Gould v. Gould

687 So. 2d 685, 1997 WL 26574
CourtLouisiana Court of Appeal
DecidedJanuary 24, 1997
Docket28996-CA
StatusPublished
Cited by35 cases

This text of 687 So. 2d 685 (Gould v. Gould) 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
Gould v. Gould, 687 So. 2d 685, 1997 WL 26574 (La. Ct. App. 1997).

Opinion

687 So.2d 685 (1997)

Kenneth Wayne GOULD, Plaintiff-Appellant,
v.
Wanda Faye GOULD, Defendant-Appellee.

No. 28996-CA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 1997.

*687 W. Eugene Golden & Associates by W. Eugene Golden, Shreveport, for Plaintiff-Appellant.

Graves, Graves & Hanna by James W. Graves, Shreveport, for Defendant-Appellee.

Before NORRIS, HIGHTOWER and BROWN, JJ.

NORRIS, Judge.

In this domestic matter, the father, Kenneth (hereinafter "Ken") Gould, appeals the trial court's dismissal of his petition to change the custody of his two children, Kenneth and Amanda. The mother, Wanda Gould, appeals the trial court's calculation of the child support obligation and the assessment of costs. For the reasons expressed, we affirm.

Procedural background and action of the district court

Ken and Wanda were divorced in Alabama in 1988. By considered decree, Wanda was awarded sole custody, subject to visitation, of the two children, Kenneth (born in July 1984) and Amanda (born in April 1987). Child support was set at $840 a month. In 1990 Wanda moved to Louisiana, taking the children with her; Ken regularly exercised visitation. Ken later lost his job as a chemical engineer and moved in with his parents in Paducah, Kentucky. In May 1994 he filed a rule to recognize the Alabama decree and reduce support; Wanda responded with her own rule for contempt and to make past due support executory. The court ultimately fixed support at $345 a month.

In July 1994 Ken filed the instant petition to change custody. Alleging that Wanda and her new husband, Jerry West, had physically abused the children and were not providing a stable home environment, he prayed for sole custody and the appointment of a mental health professional to evaluate all the parties. The district court named Dr. Mickey Jones, a Ph.D. counselor, who examined the children and parents and conducted home studies of the respective parties. Pending trial, she continued to counsel Kenneth.

In November 1994 Wanda filed another rule to increase child support; Ken responded with a rule for contempt. These were continued several times and apparently referred to the merits of the custody trial.

The matter came to trial in November and December 1995. Ken's case included extensive testimony from Dr. Jones, who felt that Kenneth was suffering from Attention Deficit Disorder ("ADD") and other psychological problems, and testified that the children's current home life with Wanda was detrimental.[1] Several other witnesses also testified; to accommodate one of Wanda's experts, Ken allowed Dr. H.N. Winterton, a pediatrician, to testify before the plaintiff had rested. Evidence was adduced over 11 days. At the conclusion of the plaintiff's case, Wanda moved for involuntary dismissal. Before ruling on the motion, the district court interviewed the children in camera, without the attorneys present.

When court reconvened, it heard arguments and orally granted Wanda's motion, dismissing Ken's petition to change custody. On Wanda's rule, he fixed support at $745.29 a month plus an arrearage of $1,767.06. He allocated each parent one tax deduction and assessed costs 50/50. The ruling was reduced to judgment of January 12, 1996.

Procedural issues

Before considering the substance of the custody issue, we will address Ken's first three assignments of error, which raise purely procedural questions. The first two challenge the involuntary dismissal. First he claims that Wanda never made a proper motion for involuntary dismissal, thus the court was unauthorized to grant it; second, the fact that Wanda called a defense witness *688 during the plaintiff's case-in-chief precluded the grant of the motion.

Involuntary dismissal is regulated by La. C.C.P. art. 1672, which provides:

Art. 1672. Involuntary dismissal

* * * * * *

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Immediately after Ken's attorney rested his case-in-chief, Wanda's attorney moved for involuntary dismissal, but he reminded the court that it had intended to question the children. R.p. 1365. The court interviewed the children in camera that afternoon, December 6. Prior to argument on the next trial date, December 11, Ken's attorney submitted a "Memorandum opposing involuntary dismissal." R.p. 245. Both parties then argued the motion; the court ruled orally. On these facts, it is obvious that the motion was properly made and submitted, a point that Ken conceded in his memorandum to the district court.[2] There is no merit to Ken's contention that Wanda failed to make the motion.

The second assignment charges that when one of Wanda's witnesses, Dr. Winterton, testified out of order, in the middle of the plaintiff's case, this precluded a subsequent grant of involuntary dismissal at the close of the plaintiff's case. He argues that when the defendant moves for involuntary dismissal, the court "must evaluate the plaintiff's evidence, undiluted by the defendant's evidence." Br., 6. In support, he cites Collett v. Branch, 516 So.2d 450 (La.App. 1st Cir.), writ denied 520 So.2d 752 (1988), and Blanchard v. Our Lady of the Lake Med. Center, 529 So.2d 1309 (La.App. 1st Cir.), writ denied 532 So.2d 772 (1988), jury cases in which the First Circuit held that the introduction of any defense evidence during the plaintiff's case-in-chief precluded the grant of the defendant's motion for directed verdict. He also cites the more recent case of Melady v. Wendy's of New Orleans, 95-913 (La.App. 5th Cir. 4/16/96), 673 So.2d 1094, writ denied 96-1249 (La.6/21/96), 675 So.2d 1088, in which the Fifth Circuit applied the same rationale to the motion for involuntary dismissal in a bench trial. All three cases, however, state that the motion can also be made at the close of all the evidence. Melady, at p. 3, 673 So.2d at 1097, and citations therein.

When the district court considered this motion, Wanda had cross examined all of Ken's witnesses (spending several days each on Dr. Jones and Ken himself), had herself testified extensively on cross and direct, and introduced 58 exhibits. There is no showing that additional evidence from Wanda would have altered the district court's ruling, a point virtually conceded by Ken's counsel.[3] The appellant has never requested a remand, as was granted in Melady, supra, but rather a judgment on the record submitted. Under these circumstances, the district court was entitled to pronounce judgment at the completion of trial under La. C.C.P. art. 1637. We perceive no error.

By his third assignment Ken urges the district court erred in conducting an in camera interview of the children without the attorneys present. While the Civil Code permits the court in a custody matter to ascertain the child's "reasonable preference" and his capacity to state a preference, La. C.C. art. 134(9), there is no statutory protocol for the judicial examination of the child. In Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5th Cir.),

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Cite This Page — Counsel Stack

Bluebook (online)
687 So. 2d 685, 1997 WL 26574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gould-v-gould-lactapp-1997.