Hargrove v. Hargrove

694 So. 2d 645, 1997 WL 257115
CourtLouisiana Court of Appeal
DecidedJune 12, 1997
Docket29590-CA
StatusPublished
Cited by12 cases

This text of 694 So. 2d 645 (Hargrove v. Hargrove) 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
Hargrove v. Hargrove, 694 So. 2d 645, 1997 WL 257115 (La. Ct. App. 1997).

Opinion

694 So.2d 645 (1997)

Sherrill Warlick HARGROVE (now Mizell), Plaintiff-Appellee,
v.
Paul B. HARGROVE, Defendant-Appellant.

No. 29590-CA.

Court of Appeal of Louisiana, Second Circuit.

May 9, 1997.
Order Denying Rehearing June 12, 1997.

*646 Paul Henry Kidd, Jr., Monroe, for Defendant-Appellant.

Albert E. Loomis, III, Monroe, for Plaintiff-Appellee.

Before BROWN, WILLIAMS and CARAWAY, JJ.

WILLIAMS, Judge.

In this child custody action, Paul Hargrove appeals a trial court judgment denying his rule to modify custody and maintaining his former wife, Sherril Warlick Hargrove Mizell, as the domiciliary parent of their minor child. For the following reasons, we affirm.

FACTS

The parties, Paul Hargrove and Sherril Hargrove Mizell, were married on August 25, 1984, and established their matrimonial domicile in Ouachita Parish. One child was born of the marriage, Lesley Diane Hargrove, on November 1, 1986. The couple separated in April 1990, when Mr. Hargrove left the family home. He took the child and moved into his parents' house. In May 1990, the parties were granted a separation from bed and board, dissolving the community of acquets and gains previously existing between them.

Subsequently, Sherril Mizell filed a petition for divorce and in June 1991, the district court granted the parties joint custody of their minor child. The plan of implementation designated the mother as the domiciliary parent during the school year, subject to the father's visitation on every Wednesday evening, Sunday afternoon and alternating holidays. The father was granted physical custody of the child during the summer months.

On September 20, 1991, the district court granted the parties a divorce and designated Mr. Hargrove as the domiciliary parent while Mrs. Mizell was out of the state to study nursing. The divorce judgment further provided that the June 1991 Implementation Plan's custody and visitation schedule would resume upon the mother's return to the state of Louisiana. In September 1991, Mrs. Mizell traveled to Kentucky and Mr. Hargrove assumed physical custody of his daughter. Subsequently, Mrs. Mizell married Kevin Mizell and moved to Glenmora, Rapides Parish, Louisiana. In August 1992, the child went to live with her mother and entered kindergarten.

In July 1994, Mrs. Mizell sought medical treatment because she was having trouble swallowing and her hands were swelling. Dr. Miguel Garcia examined Mrs. Mizell and diagnosed her condition as systematic scleroderma, which involves a thickening and tightening of the skin that can affect the patient's esophagus and lungs, and eventually cause death.

In November 1995, Mr. Hargrove was informed that Mrs. Mizell was acting irrationally. She had been arrested for shoplifting at a department store in Alexandria, Louisiana. Kevin Mizell and Lesley went to the police station and drove her home. Mrs. Mizell stated that a man had forced her to steal the items. The next day, she claimed that a man had broken into the house and attacked her. She also fired a gun out of the back door into the ground. Mrs. Mizell later admitted that she had lied about the attack.

On November 9, 1995, Hargrove picked up his daughter for his weekend visitation. The parents met in Monroe on Sunday and decided that the child would remain with her father while the mother sought treatment for depression related to her potentially disfiguring and life-threatening disease. The intended duration of this stay was disputed by the parties. On November 13, 1995, Mrs. Mizell was admitted to Regional Crossroads Hospital in Alexandria for psychiatric treatment.

Mr. Hargrove enrolled Lesley in a Ouachita Parish elementary school. He subsequently refused to return the child to Mrs. Mizell following her release from the hospital. Instead, Hargrove filed a "Rule to Change Custody" and was designated as the temporary domiciliary parent of the minor child pending a hearing on his motion to modify the custody order. Mrs. Mizell filed an answer and reconventional demand seeking to rescind the temporary custody order.

The trial court heard evidence on the rule to modify custody on May 2 and 3, 1996, and issued an order that the minor child remain in the father's custody until the end of the *647 school year. The hearing was continued to July 24-26, 1996, and concluded in September 1996. The trial judge heard testimony from the parties and their expert witnesses. He also spoke privately with the child in his chambers. The trial judge stated that he considered the child a very important witness and noted her expressed desire to live with her mother. The trial court's judgment denied the rule to change custody, finding that Mrs. Mizell is capable of performing her parental duties. Mr. Hargrove appeals.

DISCUSSION

Admissibility of Evidence

The defendant, Paul Hargrove, contends the trial court erred in admitting evidence of his behavior that occurred prior to the custody order of June 1991. He argues that parties in custody actions are limited to presenting evidence concerning circumstances that have arisen since the previous custody order.

The court shall consider all relevant factors in determining the best interest of the child. LSA-C.C. Art. 134. A trial judge's assessment of the probative value of evidence is accorded great weight and will not be disturbed absent a clear abuse of discretion. Dupree-Simpson Farms v. Helena Chemical Co., 28,739 (La.App.2d Cir. 10/30/96), 682 So.2d 838.

Here, the trial court found that testimony regarding certain conduct of the parties before and during the marriage was relevant to the custody decision. The defendant has not presented any authority to support his argument that the trial court is limited to considering only those events occurring after the previous custody order in determining the child's best interest. In fact, Article 134 requires the court to consider all relevant factors. We conclude that the trial judge did not abuse his discretion in admitting evidence of both parties' behavior during the time period prior to the custody order. The assignment of error lacks merit.

Expert Opinion

Hargrove argues the trial court erred in disregarding the expert testimony. He contends that each party's expert opined that the environment provided by the father was superior for the child.

After weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. The weight given expert testimony depends upon the professional qualifications and experience of the expert and the facts upon which the opinion is based. Warlick v. Warlick, 27,389 (La.App. 2d Cir. 9/29/95), 661 So.2d 706.

Hargrove's expert witness, Dr. Ned Jabour, is a licensed counselor in Louisiana, but not a licensed psychologist, because he has not obtained board certification. Dr. Jabour testified that he had seen the child once a week over a period of seven months. He opined that a "role-reversal" had occurred between Lesley and her mother, with the child assuming the maternal role. He did not talk with the child's mother. Dr. Jabour testified that the environment of the father's home in Monroe was more appropriate and provided more stability for the child than the mother's home situation.

The plaintiff, Sherril Mizell, presented testimony by Dr. Bobby Stephenson, a licensed psychologist in Louisiana. Dr. Stephenson saw the child on four occasions and talked with the mother separately. Dr.

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Bluebook (online)
694 So. 2d 645, 1997 WL 257115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hargrove-v-hargrove-lactapp-1997.