Greene v. Taylor

809 So. 2d 1187, 2002 WL 272422
CourtLouisiana Court of Appeal
DecidedFebruary 27, 2002
Docket01-1137
StatusPublished
Cited by5 cases

This text of 809 So. 2d 1187 (Greene v. Taylor) 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
Greene v. Taylor, 809 So. 2d 1187, 2002 WL 272422 (La. Ct. App. 2002).

Opinion

809 So.2d 1187 (2002)

Gwendolyn Taylor GREENE
v.
John B. TAYLOR.

No. 01-1137.

Court of Appeal of Louisiana, Third Circuit.

February 27, 2002.

*1189 Milton Dale Peacock, Monroe, LA, for Plaintiff/Appellant Gwendolyn Taylor Greene.

W. Mitchell Redd, Liles & Redd, Lake Charles, LA, for Defendant/Appellee John B. Taylor.

Court composed of ULYSSES GENE THIBODEAUX, MARC T. AMY and ELIZABETH A. PICKETT, Judges.

THIBODEAUX, Judge.

The plaintiff, Gwendolyn Taylor Greene, appeals a judgment of the trial court designating the defendant, John B. Taylor, the domiciliary parent of their minor children, Mitchell and Jonah, and finding that it would be in the children's best interest to live in Texas with their father, instead of in Lake Charles, Louisiana with their mother. For the reasons set out below, we affirm.

I.

FACTS

Ms. Greene and Mr. Taylor were married in 1991 and divorced in 1994. The parties had two sons together, Mitchell born in 1992 during the marriage and Jonah born in 1995 after the divorce. By agreement, Ms. Greene was awarded primary custody of Mitchell in the 1994 divorce, and Mr. Taylor was allowed limited visitation. There was no formal custody agreement with respect to Jonah; however, Mr. Taylor paid child support for both boys. Both parties are currently remarried. On January 14, 2000, Mr. Taylor filed a petition to modify the custody plan with respect to Mitchell and establish custody of Jonah. In large part, Mr. Taylor's petition was in response to an incident that occurred on December 21, 1999, involving a spanking received by Mitchell from Ms. Greene's husband. Prior to filing his petition, Mr. Taylor obtained an ex parte custody order in December 1999 due to the December 21, 1999 incident.

On February 25, 2000, the first hearing on the custody dispute was held. The first issue addressed by the trial court was whether the children should continue to live with Mr. Taylor pursuant to the December 1999 ex parte custody order or be returned to Ms. Greene pending resolution of the custody dispute. In connection with this issue as well as the merits of the custody dispute, the trial court heard the testimony of Mitchell and Jonah in chambers as well as the testimony of Dr. Michael Seep, the Greene family doctor and friend, Ms. Greene and Ms. Taylor, the children's step-mother, Sherry Skarpa, Ms. Taylor's sister, Linda Ferguson, Mitchell's former second grade teacher and Gwen Thompson, an Office of Community Services (OCS) supervisor, who oversaw an OCS investigation into the December 21, 1999 spanking incident. At this hearing, the trial court ordered the OCS report on the spanking incident entered into evidence over the objection of counsel for Ms. Greene. At the conclusion of the February 2000 hearing, the trial court ordered that the children be returned to Ms. Greene pending the outcome of the custody hearing. Mr. Taylor did not obey the court's order to return the children to Ms. Greene. Subsequently, on March 9, 2000, Ms. Greene obtained a court order from a Texas Court ordering Mr. Greene to return Mitchell to Ms. Greene. Pursuant to the Texas court order, Mr. Taylor returned *1190 both boys to Ms. Greene. At the conclusion of the hearings in this case on May 23, 2000, the matter was taken under advisement. However, on August 30, 2000, Mr. Taylor moved to re-open the case to have the court consider evidence of Ms. Greene's decision to home school Mitchell and Jonah. The court reopened the case and evidence of Ms. Greene's home schooling was taken. During this time the children remained in Lake Charles with Ms. Greene.

The trial court entered its judgment on May 21, 2001. The court designated Mr. Taylor as the domiciliary parent, and ordered that Mitchell and Jonah live with him. A formal written reasons for judgment was signed on May 14, 2001. It is from this judgment that Ms. Greene now appeals.

II.

ISSUES

Ms. Greene asserts that the trial court erred when it admitted the report of the Office of Community Services into evidence over her objection that the report was hearsay not subject to any exception. Ms. Greene also asserts that the trial court erred when it refused to allow her minor sons, Mitchell and Jonah, to testify prior to attempting to determine their competency to testify. Lastly, Ms. Greene asserts that the trial court committed manifest error when it ordered that her former husband, Mr. Taylor, have primary custody of the children.

III.

LAW AND DISCUSSION

Louisiana Code Evidence Article 803(8)(b)(iv)

At the second hearing in this matter, counsel for Mr. Taylor sought to introduce the OCS investigative report of the December 21, 1999 spanking incident. The trial court allowed its admission. Ms. Greene argues on appeal, as she argued at the hearing, that the admission into evidence of the OCS report was impermissible hearsay pursuant to La.Code Evid. art. 803(8)(b)(iv). Louisiana Code of Evidence Article 803(8)(a)(iii) provides that a report by a public agency is an exception to the hearsay rule. However, La.Code Evid. art. 803(8)(b)(iv) exempts this exception from:

Factual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

Louisiana Code of Evidence Article 803(8)(b)(iv) makes a distinction between factual findings resulting from a general investigation that may be admissible from factual findings resulting from a specific or particular investigation that are inadmissible. The comments to exception (8) of Article 803 distinguish a special investigation of a particular complaint from a general investigation. "An investigation into the circumstances that gave rise to the proceeding in question is a special investigation." La.Code Evid. art. 803, comment (i). Comment (i) of Article 803 offers examples of a general investigation and a special investigation as follows:

[A] government report that establishes a general relationship between cigarette smoking and lung cancer could be admitted in a product liability case. By contrast, a finding of a government accident investigator that the cause of the particular accident that is the subject of a proceeding was a defective tire would not be admissible, although the investigator, *1191 if properly qualified as an expert, could testify as a witness.

It is obvious that the OCS report of its investigation of the December 21, 1999 spanking incident contains factual findings of the subject matter of the February 29, 2000 hearing regarding the same incident. Thus, we find that the trial court erred in admitting the OCS report into evidence.

"In reviewing evidentiary decisions of the trial court, an appellate court must consider whether the particular ruling complained of was erroneous and if so, whether the error prejudiced the complainant's cause, for unless it does, reversal is not warranted." State Farm Mut. Auto. Ins. Co. v. Little, 34-760, p. 5 (La. App. 2 Cir. 6/20/01); 794 So.2d 927, 930.

We have already determined that it was error for the trial court to admit the OCS report into evidence; thus, we must now make a determination as to whether this error prejudiced Ms. Greene's case. The trial judge heard the testimony of Ms. Thompson and Ms. Shawntessa Hines, the OCS investigator who investigated the December 21, 1999 incident.

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Cite This Page — Counsel Stack

Bluebook (online)
809 So. 2d 1187, 2002 WL 272422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-taylor-lactapp-2002.