Kuhl v. Kuhl

715 So. 2d 740, 1998 WL 375253
CourtLouisiana Court of Appeal
DecidedJuly 8, 1998
Docket97-1725
StatusPublished
Cited by3 cases

This text of 715 So. 2d 740 (Kuhl v. Kuhl) 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
Kuhl v. Kuhl, 715 So. 2d 740, 1998 WL 375253 (La. Ct. App. 1998).

Opinion

715 So.2d 740 (1998)

Ginger KUHL, Plaintiff-Appellant,
v.
Richard S. KUHL, Jr., Defendant-Appellee.

No. 97-1725.

Court of Appeal of Louisiana, Third Circuit.

July 8, 1998.

Mitchel Mark Evans, II, DeRidder, for Ginger Kuhl.

Elvin Clemence Fontenot, Jr., Leesville, for Richard S. Kuhl, Jr.

Before WOODARD, AMY and GREMILLION, JJ.

GREMILLION, Judge.

The plaintiff, Ginger Kuhl, appeals the trial court's judgment awarding joint custody of the minor child, Amber Kuhl, to both parties, and naming the defendant, Richard Kuhl, as the primary custodial parent. For the following reasons, we affirm.

FACTS

Ginger and Richard were divorced on February 12, 1996. In the judgment of divorce, which was consented to by both parties, they were awarded the joint care, custody, and control of Amber. Ginger was named the primary custodial parent and Richard was granted reasonable visitation rights.

On April 9, 1997, Richard filed a motion to modify the custody arrangement, alleging that Ginger had constantly interfered with his visitation rights and engaged in actions that inflicted emotional and mental abuse on Amber. Ginger filed an answer and reconventional demand seeking a modification in the custody arrangement. She alleged that she had reason to believe that Richard had sexually abused Amber based on reports from Amber's treating physician, Dr. Thomas Griffin, III, and treating child psychologist, Dr. Patricia Post.

After a hearing on this rule on June 17-18, 1997, the trial court rendered judgment in favor of Richard maintaining the joint custody order, but naming Richard as the primary custodial parent of Amber. From this judgment, Ginger appeals and lodges two assignments of error.

ASSIGNMENTS OF ERROR

Ginger alleges the following:

*741 1. The trial court committed manifest error in crediting the unsubstantiated testimony of appellee's expert witnesses.
2. The trial court committed manifest error in disregarding the uncontroverted testimony of appellant's two expert witnesses.

DISCUSSION

Because both assignments of error relate to the credibility determination made by the trial court, we will address them together. A trial court's determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365.

In Beard v. Beard, 599 So.2d 486, 488 (La.App. 3 Cir.1992), we stated the following concerning the burden of proof required for a change in custody:

The best interest of the child is the sole criterion to be met in awarding or modifying custody under La.C.C. art. 146(E). Simmons v. Simmons, 554 So.2d 238 (La. App. 3rd Cir.1989). In custody modification cases, when a party attempts to modify a "considered decree", he bears the heavy burden of proving that the continuation of present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).
When no evidence is adduced at the district court level prior to the entry of the joint custody order which is sought to be modified, that joint custody decree is not a "considered decree" within the meaning of Bergeron, supra. In this situation, the heavy burden of proof is not applicable, but the moving party must still prove a material change in circumstances since the entry of the original decree and that the modification proposed is in the best interest of the child. McGee v. McGee, 552 So.2d 576 (La.App. 2d Cir.1989). Every child custody case must be decided based only on its own particular facts and circumstances. Lindner v. Lindner, 569 So.2d 173 (La.App. 1st Cir.1990). On appellate review, the determination of the trial court in establishing or modifying custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988); Bergeron, supra.

In this case, the trial court decided that the harm likely to be caused by a change in custody was substantially outweighed by the advantages. The trial court based this finding on its determination that the expert testimony presented by Richard was more credible than that presented by Ginger. In W.M.E. v. E.J.E., 619 So.2d 707, 710-11, (La.App. 3 Cir.1993), the court stated the following concerning the use of expert witnesses in child custody cases:

Faced with ... the growing use of psychological and psychiatric testimony in child custody and visitation cases, we find it necessary to again clarify the role of such expert witnesses. Expert witnesses are intended to "assist the trier of fact" in understanding the evidence or in the determination of a fact in issue. Louisiana Code of Evidence article 702. Undeniably in certain cases, expert assistance may prove invaluable in the court's determination, particularly regarding issues touching on the psychological and emotional welfare of the children.
However, the ultimate "best interest of the child" decision squarely remains in the exclusive province of the court. This decision necessarily focuses on all of the evidence and testimony presented. The trial court is not bound to follow the recommendations of an expert witness.

In the case sub judice, the trial court was faced with two distinct views of the evidence. Richard presented the testimony of Dr. John C. Simoneaux, accepted by the trial court as an expert in the field of psychology, and that of Mr. Tom James, a child protection investigator with the Office of *742 Community Services. Dr. Simoneaux performed psychological evaluations on Ginger, Richard, and Amber. These evaluations consisted of the Minnesota Multiphasic Personality Inventory (MMPI) and interviews. Based on these evaluations, he opined that Ginger's behavior in making these allegations was rooted more in vindictiveness towards Richard than in her desire to protect Amber. He stated that her psychological make-up indicated that she was quite capable of making such allegations in order to gratify her short term goal of getting Richard out of his daughter's life despite the long-term harmful effects it would have on Amber. Furthermore, his evaluation of Richard led him to the opinion that he was unlikely to engage in such conduct.

Mr. James testified that the investigation done by the OCS led to a determination that the complaint against Richard for child abuse was invalid. As a result of the OCS's determination that these were not valid reports, it decided to validate a complaint against Ginger for emotional maltreatment. This determination was based on the same evidence used to invalidate the complaint against Richard. It was the OCS's opinion that by Ginger constantly telling Amber to tell people that Richard was sexually abusing her, she was emotionally maltreating Amber.

Ginger's witnesses, Drs. Post and Griffin, testified that they believed Amber was being abused by Richard. Dr. Post based her opinion on in-office interviews with Amber conducted over the course of several months. She also testified, however, that the tests administered by Dr. Simoneaux are accepted tools in making a psychological evaluation.

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715 So. 2d 740, 1998 WL 375253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuhl-v-kuhl-lactapp-1998.