Hughes v. Talton

845 So. 2d 1098, 2003 La.App. 5 Cir. 12, 2003 La. App. LEXIS 1208, 2003 WL 1969714
CourtLouisiana Court of Appeal
DecidedApril 29, 2003
DocketNo. 03-CA-12
StatusPublished
Cited by2 cases

This text of 845 So. 2d 1098 (Hughes v. Talton) 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
Hughes v. Talton, 845 So. 2d 1098, 2003 La.App. 5 Cir. 12, 2003 La. App. LEXIS 1208, 2003 WL 1969714 (La. Ct. App. 2003).

Opinion

LCLARENCE E. McMANUS, Judge.

Defendant appeals the lower court’s judgment regarding custody of the minor child, incidental matters, and the denial of a motion for new trial. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Kenneth Hughes, and defendant, Teresa Taitón, had a relationship in 2000 during which the couple’s son, Brandon, was conceived. The couple did not marry. The record demonstrates that the couple has had a contentious relationship with allegations of verbal and physical abuse and that Mr. Hughes pressured Ms. Taitón to have an abortion even offering her money to do so. Several months before giving birth, Ms. Taitón stayed with her family in Mobile, Alabama. She returned to Jefferson Parish to have Bran[1100]*1100don at Ochsner Hospital pursuant to her insurance coverage. Mr. Hughes opted not to be present when his son was born on October 22, 2000. Two days after being released from the hospital, Ms. Taitón and Brandon returned to Alabama to live with her family. Mr. Hughes thereafter disputed paternity and requested DNA testing. At one point, Ms. Taitón moved to Jefferson Parish so that Mr. Hughes could be a part of Brandon’s life. This attempt proved to be futile and stressful with Ms. Taitón | ¡¡developing bleeding ulcers. In October 2001, Ms. Taitón and Brandon again returned to Mobile so that she could have familial support to rear her son.

In November 2001, she instituted child support proceedings in Alabama state court. The same month, Mr. Hughes filed this suit for custody in the Twenty-Fourth Judicial District. The trial judge signed an ex parte order granting temporary joint custody to Mr. Hughes based on his assertion that the child lived exclusively in Jefferson Parish since birth. Ms. Taitón argued this allegation was false and that she received no notice of this order. In December 2001, Mr. Hughes filed an affidavit stating that Ms. Taitón refused to return Brandon to Jefferson Parish. The trial judge signed a second ex parte order this time giving sole custody to Mr. Hughes. Ms. Taitón asserted she received no notice of this order as well. A civil warrant was issued for the pick up and return of Brandon to Mr. Hughes in Jefferson Parish. A curator was appointed to represent Ms. Taitón in her absence but was not served. Ms. Taitón claims she was not served under the long arm statute. Mr. Hughes presented the Louisiana court orders to an Alabama judge seeking full faith and credit. Ms. Taitón retained counsel and filed exceptions. Her exception argued that La. R.S. 9:355.1 et seq. is inapplicable because there was no custody order in existence at the time she moved to Alabama with Brandon and requested the revocation of the previously issued ex parte orders. The trial court denied the exception and Ms. Taitón did not apply for supervisory writs. The trial judge appointed James Klein, Ph.D. to evaluate the parties and complete a report. Ms. Taitón requested a second evaluation and report which was completed by Eugenia Patru, MSW.

This matter proceeded to trial. On June 11, 2001, the trial court issued its judgment. The trial judge in pertinent part found that La. R.S. 9:355.1 and its sub-parts were applicable to this case; that Ms. Taitón failed to comply with La. R.S. 9:355. et seq., by failing to notify Mr. Hughes of her plans to relocate to ^Alabama with Brandon; ordered the child be returned to Jefferson Parish; designated Ms. Taitón as the primary domiciliary parent should she decide to relocate to Jefferson Parish and if not, Mr. Hughes would become the domiciliary parent; awarded joint custody to the parties; and assessed Eugenia Patru’s costs to Ms. Tai-tón.

On June 18, 2001 the trial judge recused himself. Ms. Taitón believed a “relationship” existed between Mr. Hughes and Judge LaDart. Additionally, the trial judge recognized two of the witness and acknowledged that he “knew” Mr. Hughes. Ms. Taitón filed a motion for new trial. After a hearing, Judge Robert Burns denied the motion for new trial finding the judgment issued in this case was not contrary to the law and evidence.

This appeal followed.

DISCUSSION

RECUSAL AND MOTION FOR NEW TRIAL

Ms. Taitón argues that Judge LaDart erred in failing to disclose a prior relationship with Mr. Hughes. Additionally, she argues that Judge Burns erred in [1101]*1101denying her motion for new trial after Judge LaDart recused himself of his own volition. She cites Younce v. Pac. Gulf Marine, Inc., 02-1343 (La.10/08/02), 827 So.2d 1144, in support. The alleged relationship in this case arises from Mr. Hughes’ previous position as the Director of Budget and Research for the Jefferson Parish Council and Judge LaDart’s previous employment with the Jefferson Parish Attorney’s office and as an administrative hearing officer for Jefferson Parish. In Younce, the relationship at issue involved concurrent representation of the trial judge (in an election dispute) and the plaintiff in that case by the same attorney. The trial judge did not disclose the relationship and even denied defendant’s motion to recuse. The Louisiana Supreme Court held that the trial judge had a mandatory duty to disclose this relationship to the parties and granted the motion to | Rrecuse. The Supreme Court remanded the case to the trial court for re-allotment to a different division and a new trial. We find Younce to be distinguishable from this case. Ms. Taitón did not file a motion to recuse the trial judge until after the judgment decreeing 50/50 custody had been rendered. Plaintiffs counsel alluded in open court to the existence of some kind of connection between Mr. Hughes and the trial judge. However, a connection was never actually established. The trial judge admitted he “knew” Mr. Hughes. Our assessment of the record demonstrates that the alleged relationship is not the type requiring mandatory disclosure or recusal under La. C.C.P. Art. 151. Apparently, the recusal came after Judge LaDart recognized two witnesses in court. The case was then randomly re-allotted. Thereafter, Ms. Taitón filed a motion for new trial. After a hearing on the motion for new trial, Judge Robert Burns denied the motion for new trial stating that the judgment was not contrary to the law and evidence. We agree that the motion for new trial was properly denied.

EX PARTE ORDERS OF THE TRIAL COURT

Turning to the assignment of error regarding the issuance of ex parte orders, we note that La. C.C.P. art. 963 provides:

If the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.
If the order applied for by written motion is one to which the mover is not clearly entitled, or which requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party.
The rule to show cause is a contradictory motion.

La. C.C.P. art. 3945 provides in pertinent part that:

A. The injunctive relief afforded either party to an action for divorce or other proceeding which includes a provision for the temporary custody of a minor child shall be governed by the additional provisions of this Article.
B. An ex parte order of temporary custody of a minor child shall not be granted unless:

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Related

Hughes v. Talton
181 So. 3d 10 (Louisiana Court of Appeal, 2014)

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Bluebook (online)
845 So. 2d 1098, 2003 La.App. 5 Cir. 12, 2003 La. App. LEXIS 1208, 2003 WL 1969714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-talton-lactapp-2003.