In Re MAY

441 So. 2d 500
CourtLouisiana Court of Appeal
DecidedNovember 29, 1983
Docket15859-CAJ
StatusPublished
Cited by11 cases

This text of 441 So. 2d 500 (In Re MAY) 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
In Re MAY, 441 So. 2d 500 (La. Ct. App. 1983).

Opinion

441 So.2d 500 (1983)

In re MAY, Applying For Adoption.

No. 15859-CAJ.

Court of Appeal of Louisiana, Second Circuit.

November 29, 1983.

*502 John C. Blake, Jonesboro, for appellee.

Appellant, in pro. per.

Before PRICE, MARVIN and SEXTON, JJ.

SEXTON, Judge.

The natural father of the two minor children who are the subject of this adoption proceeding appeals the ruling of the trial court which severed his legal ties to his children who are six and seven years old. The names of the parties involved have been omitted in the title and in this opinion in accordance with LSA-R.S. 9:437. We affirm.

In pursuing this appeal, appellant presents six specifications of error. Specifications I and IV and VI present basically the same issue which is the most serious in the case, and will be discussed subsequently.

In specifications II and III, appellant respectively complains that the trial court failed to issue requested subpoenas duces tecum, and also complains that he was denied the opportunity to cross-examine his former wife, the mother of the two children who are the subject of the proceeding.

Appellant contends that he requested issuance of a subpoena requiring the Rapides Parish Jail to produce his arrest and incarceration records, and also that he requested that a subpoena be issued to the Huey P. Long Hospital for all records relating to any admittances he might have had there. The record does contain three requests for subpoenas duces tecum by appellant which are not stamped filed and contain no date. These requests seek incarceration information from the Rapides Parish Jail, and admittance information from Huey P. Long Memorial Hospital in Pineville, Louisiana and Central State Louisiana Hospital in Pineville, Louisiana. The only subpoena we were able to locate in our review of the record is one sent to Wade Correctional Center, where appellant is incarcerated, seeking records of appellant's earnings during incarceration and all records pertaining to any current or previous incarcerations related to him. Also contained in the record, labeled as Exhibit F-1, is a Louisiana Department of Correction Master Prison Record containing two sheets which relate to this appellant. We find no hospital records in this appellate record.

However, the appellant does not indicate in what fashion the prison record of his incarcerations is incomplete, nor does he tell us how he was prejudiced by the lack of hospital records. Also, with respect to this issue, and particularly with respect to the complaint about the disallowance of cross-examination of appellant's former spouse, we are unable to determine what occurred *503 during the trial of the cause, as the proceedings were not transcribed.

While Article 1, Section 19 of the Louisiana Constitution of 1974 would seem to require that the proceedings be transcribed, appellant apparently did not complain of the failure of the trial court to transcribe the evidence.[1] In his extensive brief to us, he has not indicated that he requested that the evidence be transcribed in accordance with LSA-C.C.P. Art. 2130. We presume that his failure to object operates as a waiver of the transcription.[2] Rights of judicial review and free access to the courts are not totally without legislative regulation. Thus, the Legislature has authority to prescribe reasonable rules governing the exercise of certain rights. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir.1976). The Legislature has done so with respect to the transcription of civil appeals and we do not find that the Article is in contravention of the constitutional provision.

Where there is no transcript the trial court's judgment is presumed to have been supported by competent evidence. Clark v. Clark, 411 So.2d 548 (La.App. 1st Cir.1982). Where as here, there are extensive reasons for judgment, those reasons may be used in lieu of the transcribed testimony. Robinson v. Jackson, 255 So.2d 846 (La.App. 2d Cir.1971), writ denied, 260 La. 700, 257 So.2d 155 (1972).

Therefore, in summary, we find no merit to appellant's contentions concerning failure of the subpoenas to issue, or with respect to the alleged denial of cross-examination. While we are not able to precisely judge appellant's contentions in this respect because of the lack of a transcript, that lack is attributable to him. Moreover, and just as importantly, appellant does not complain of what it is that he wished to prove by the subpoenas which were not issued. He does not tell us how any lack of hospital or incarceration records has prejudiced his case.

Furthermore, with respect to the issue of cross-examination, appellant only complains that he wanted to cross-examine his former wife in an effort to prove that he lived with her after the divorce and, as a result, was both visiting with and supporting the children at that time. Even accepting appellant's contention in this respect as a fact for the sake of argument, we are unable to discern that this fact would have assisted him in this cause. These parties were divorced in 1977, some six years ago, and it is only the relatively recent period of the last two years which are of real importance here. Since petitioner and the natural mother have been married for over three years, it is apparent that this circumstance, even if true, occurred so long ago as to be of no assistance to appellant.

Appellant's Specification of Error No. V complains that appellant was denied the assistance of an inmate as his counsel at this civil proceeding. Appellant is currently incarcerated at the Wade Correctional Institute as a result of a burglary conviction, and is indigent. Appellant is not entitled to assistance of an inmate as his counsel in a civil proceeding. He is not even entitled to an appointed attorney. See State v. Stafford, 394 So.2d 1287 (La.App. 1st Cir.1981). Furthermore, there is no allegation that appellant was denied counsel of his choosing or that he was prevented from obtaining the assistance of civil indigent counsel.

The principal issue in the cause is presented by appellant's Specifications of *504 Error Nos. I, IV and VI. Specification of Error No. I essentially contends that the stepfather seeking this adoption had no authority to proceed under LSA-R.S. 9:422.1. No. IV contends that nothing in the aforementioned statute requires the court to grant the adoption simply because the technical conditions are met. Specification No. VI asserts that the court erred in not considering appellant's involuntary incarceration as a just cause for failure to provide support. Thus all of these complaints essentially assert that the trial court was in error in its application of LSA-R.S. 9:422.1.[3]

The statute clearly provides that where, as here, the party seeking adoption is the spouse of a legitimate parent that the consent of the other legitimate parent to the adoption is unnecessary if that parent has refused without just cause to comply with a court order of support for a period of one year, or if the other parent has failed to communicate or visit with the children without just cause for a period of two years.

In written reasons for judgment, the trial court found that appellant and the children's mother were divorced in April of 1977 with the mother being granted custody and appellant ordered to pay $250 per month for support of the children. Appellant was incarcerated in the Rapides Parish Jail from March of 1978 until sometime in September of 1979. He was reincarcerated in June of 1980 and has so remained.

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Bluebook (online)
441 So. 2d 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-may-lactapp-1983.