Henry v. Sullivan

223 So. 3d 1263, 2016 La.App. 1 Cir. 0564, 2017 WL 2982129, 2017 La. App. LEXIS 1321
CourtLouisiana Court of Appeal
DecidedJuly 12, 2017
DocketNO. 2016 CU 0564R
StatusPublished
Cited by16 cases

This text of 223 So. 3d 1263 (Henry v. Sullivan) 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
Henry v. Sullivan, 223 So. 3d 1263, 2016 La.App. 1 Cir. 0564, 2017 WL 2982129, 2017 La. App. LEXIS 1321 (La. Ct. App. 2017).

Opinion

PETTIGREW, J.

|aThis case comes before us on remand by order of the Louisiana Supreme Court. The appellant, Janice Sullivan, challenges the re-allotment of her case and the trial court’s February 12, 2016 judgment, which granted sole custody of her minor child to the child’s father, the appellee, David Henry, and only allowed her supervised visitation for eight hours each .week. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Sullivan and Mr. Henry were never married, but are the parents of a daughter born on December 11, 2012. In June 2016, Mr. Henry filed a petition to establish paternity and custody. The matter was set for a Hearing Officer Conference on August 3, 2016, and a judge hearing on October 22, 2015. Shortly after filing his original petition, Mr. Henry filed an ex parte motion for custody in which he alleged that Ms. Sullivan had indicated she might attempt suicide and had done so by swallowing a handful of Valium while drinking alcohol. Mr. Henry further alleged that the hospital had sent Ms. Sullivan to a psychiatric hospital for a seventy-two hour hold. Based upon the allegations contained in Mr. Henry’s ex parte motion, the trial court granted Mr. Henry temporary sole custody of the minor child and ordered that there be no .visitation by Ms. Sullivan until further court orders. The trial court also scheduled a hearing for July 16, 2016.

In response, Ms. Sullivan filed an ex parte motion asking the trial court to reset the hearing for an earlier date because she was scheduled to-take .a. nursing school exam on July 16. Ms. Sullivan also requested that pending the hearing, she be granted supervised visitation, with her parents providing the required supervision at their home. In addition, Ms. Sullivan further alleged that Mr. Henry had a trial set for July 24, 2016, on a second offense driving under the influence and careless operation of a vehicle and that he had not been with the child more than a few hours prior to filing his ex parte request for custody.

In an order signed on June 30, 2016, the trial court granted Ms. Sullivan -visitation on a rotating two day schedule, said visitation to be supervised by the |Rmaternal grandparents,. The trial court further, ordered that Mr. Henry not drive with the minor, child pending the hearing, reset for July 9,2016.

At the July 9, 2015 hearing, the parties entered into a stipulated judgment that the trial court signed on July 28, 2015. In the judgment, Mr, Henry and Ms. Sullivan agreed to submit to a brief forensic custody evaluation by Dr. A. James Klein, who was vested with the authority to determine the minor child’s need for a separate psy[1266]*1266chological evaluation and the parties’ needs for any substance abuse and mental health evaluations. Ms. Sullivan agreed to complete and execute authorizations allowing Mr. Henry access to her medical records for three healthcare providers (related to Mr. Henry’s report that Ms. Sullivan had attempted suicide). Both parties agreed to submit to hair and urine drug testing. Pending a future hearing, Mr. Henry and Ms. Sullivan agreed to rotate physical custody of the minor child every three days with the exchanges to take place at 5:00 p.m. at a local drug store. Ms. Sullivan agreed that her physical custody of the minor child would be supervised by one or both of her parents. Mr. Henry stipulated that he would only drive the minor child in a vehicle installed with an ignition interlock device. Both parties agreed not to be under the influence of alcohol, illegal drugs, or prescription drugs for which they did not have a prescription while the minor child was in their physical custodies.

The matter proceeded to hearing in Division L, before Judge Dawn Amacker, on October 22, 2015. Following testimony from several witnesses, and considering the documentary evidence introduced by the parties, Judge Amacker issued an oral ruling particularly noting her concerns regarding Ms. Sullivan’s mental health issues and Ms. Sullivan’s ability to parent the minor child. Judge Amacker ruled that Mr. Henry should be granted sole custody of the minor child, with Ms. Sullivan having supervised visitation pending a full psychiatric evaluation. Counsel for Mr. Henry was to prepare a judgment in accordance with Judge Amacker’s ruling.

However, prior to Judge Amacker signing a written judgment, Ms. Sullivan’s counsel withdrew from representation. On November 2, 2015, Richard Ducote enrolled as new counsel for Ms. Sullivan and moved for Judge Amacker’s recusal. In support of | ¿the motion for recusal, Ms. Sullivan alleged that Richard Ducote and Judge Amacker “have a very contentious relationship ... which [has] prompted Judge Amacker to voluntarily recuse herself in other proceedings.” Ms. Sullivan further asserted that recusal was mandated because Judge Amacker was “biased and prejudiced against counsel to such an extent that she cannot conduct fair and impartial proceedings.” Lastly, she alleged Judge Amacker’s husband’s law firm was involved in an unrelated suit brought by Ms. Sullivan’s family.

In a November 10, 2015 order, Judge Amacker voluntarily recused herself from the case, explaining, in pertinent part:

Richard Ducote has chosen to engage in public conduct that personally and professionally attacks Judge Amacker. The Court does not agree that Mr. Du-cote’s conduct has caused Judge Amacker by design or effect to be biased or prejudiced against him to such an extent that his clients may not receive fair and impartial treatment. Furthermore, the Court had no prior knowledge of the lawsuit cited by Mr. Ducote, and after inquiry does not agree that the Court is required to recuse on that basis as the case he cites was dismissed on May 14, 2015; Mr. E.B. Dittmer, II, did not represent any party involved in that proceeding; and finally, that proceeding has absolutely no connection to the case at issue.
The Court does find that voluntary recusal is appropriate, to avoid even an appearance of impropriety, in any case in which Richard Ducote is enrolled as counsel of record for one of the parties and therefore voluntarily recuses in the above captioned matter.

Judge Amacker ordered that the case be re-allotted to Division K, presided over by Judge Mary Devereux, which, like Division [1267]*1267L, has jurisdiction limited to family and juvenile matters pursuant to La. R.S. 13:621.22(B) as follows:

B. There are hereby created two additional district judgeships for the Twenty-Second Judicial District for the parishes of St. Tammany and Washington.
(1) The first additional judge provided for in this Subsection and his successors shall preside over Division K, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division K is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.
(2) The second additional judge provided for in this Subsection and his successors shall preside over Division L, which is hereby created for purposes of nomination, election, and subject matter only. The subject matter jurisdiction of Division L is limited, under the provisions of Article V, Section 15(A) of the Constitution of Louisiana, to family and juvenile matters as provided by law.

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Bluebook (online)
223 So. 3d 1263, 2016 La.App. 1 Cir. 0564, 2017 WL 2982129, 2017 La. App. LEXIS 1321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-sullivan-lactapp-2017.