Manno v. Manno

154 So. 3d 655, 2014 La. App. LEXIS 2753, 2014 WL 6464643
CourtLouisiana Court of Appeal
DecidedNovember 19, 2014
DocketNo. 49,533-CA
StatusPublished
Cited by13 cases

This text of 154 So. 3d 655 (Manno v. Manno) 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
Manno v. Manno, 154 So. 3d 655, 2014 La. App. LEXIS 2753, 2014 WL 6464643 (La. Ct. App. 2014).

Opinion

LOLLEY, J.

Lin this child custody proceeding, Molly Creech Manno appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, awarding her and her former spouse, Mark Kenneth Manno, joint custody of their minor child and designating her as the domiciliary parent. More specifically, Molly appeals the trial court’s decision to exclude evidence, including allegations of sexual abuse which allegedly occurred before the parties entered into a consent judgment on November 27, 2007. For the following reasons, we affirm the trial court’s judgment.

Facts

Mark Kenneth Manno and Molly Creech Manno were married on May 13, 2000, in Shreveport, Louisiana. One child was born of the marriage, A.W.M., a son, born on November 22, 2002. Litigation between Mark and Molly began on August 9, 2006, when Molly sought a protective order with the Caddo Parish Juvenile Court alleging that Mark sexually abused A.W.M., who was three years old at the time. A protective order was issued against Mark based solely on the allegations, and Dr. John Simoneaux, a forensic psychologist, was appointed by the court to conduct mental health and custody evaluations of all parties involved. The court also appointed an attorney for the child pursuant to La. R.S. 9:345. However, despite the allegations against Mark, Molly filed a motion to dissolve the protective order on January 18, 2007, and a contradictory hearing was held wherein Molly was questioned by the juvenile court regarding the alleged sexual abuse of A.W.M. Based upon that questioning, the juvenile court dismissed the proceedings against Mark, found the |2dismissal to be free, voluntary, and without coercion, and deferred all future issues to the First Judicial District Court, where Mark had initiated divorce proceedings against Molly.

Incidental to divorce, Mark and Molly appeared before the trial court on November 27, 2007, and on that date entered into [658]*658a consent judgment granting joint custody of A.W.M. to both parties, with Molly being named the domiciliary parent (the “consent judgment”). Mark was awarded visitation, and both parties, along with their attorneys and the child’s attorney, signed an eight-page joint custody implementation plan (“JCIP”) setting forth the particulars of visitation and each party’s obligations moving forward.

Custody was exercised pursuant to the consent judgment and JCIP until January 13, 2011, when Molly filed an ex parte motion for supervised visitation requesting that Mark’s visitation be limited to supervised visitation only. Acting on the advice of her attorney, Molly took A.W.M. to Utah to see Dr. David Corwin, a psychologist who specializes in child sex abuse. Following an interview and examination of A.W.M., Dr. Corwin issued a report stating that in his professional opinion, A.W.M. was experiencing psychological and emotional trauma. Relying on this report, Molly filed the motion for supervised visitation asserting that A.W.M.’s psychological and emotional trauma stems from Mark sexually abusing A.W.M.

In response to Molly’s motion,- Mark filed exceptions of res judicata, no cause of action, and/or failure to state a material change of 1 ¡¡circumstances. Mark also requested that the court reappoint Dr. Simo-neaux, and that both parties reconvene to again determine custody of A.W.M. Because of Molly’s objection to the reappointment of Dr. Simoneaux, a hearing was held, wherein the trial court maintained the appointment of Dr. Simoneaux and requested that he compile a second report to advise the court regarding any issues that affect the custody and best interest of A.W.M. The trial court denied Molly’s request for supervised visitation and deferred Mark’s exceptions to trial on the merits. Additionally, the trial court informed the parties that the heightened Bergeron standard would not apply, and noted that either party must show a material change in circumstances after the consent judgment; therefore, evidence prior to November 27, 2007, would not be admissible absent a compelling reason demonstrated at trial.

In accordance with the trial court’s order, the parties and A.W.M. were reevaluated by Dr. Simoneaux, and a trial date was scheduled. When the parties appeared in court for trial, Molly made clear that she intended to offer evidence regarding certain incidents which allegedly occurred prior to November 27, 2007. Further, Molly made the assertion that she had been coerced into dismissing the abuse charges against Mark and signing the consent judgment. After hearing Molly’s arguments, the trial court reaffirmed its previous position that evidence prior to the consent judgment would not be admissible, and stayed the proceedings to allow Molly to apply for a supervisory writ, which this court denied due to Molly having an adequate remedy on appeal.

|4The matter was eventually set for trial on February 18, 2014. However, while the matter was pending, Molly filed an amended motion for supervised visitation, alleging that Mark sent lewd, inappropriate photos to A.W.M.’s cell phone. An emergency hearing was held wherein Mark admitted to taking the photos, but stated that he meant to share them with a woman he was dating at the time. Mark explained to the trial court that A.W.M. had a deactivated cell phone but had access to Mark’s iTunes account, which included access to “Photoshare” where the photos were stored. Although he immediately deleted the photos after he took them, Mark claimed that they were inadvertently transferred to AW.M.’s cell phone via the “Photoshare” application. Nevertheless, [659]*659the trial court agreed with Molly and restricted Mark to supervised visitation until trial.

Trial was held over a three-day period. At the onset, the trial court had the parties clarify the remedies sought regarding a modification of custody. Molly requested sole custody of A.W.M. as well as relief under the Post-Separation Family Violence Relief Act, which requires supervised visitation. On his cross rule for a change in custody, Mark sought joint custody with himself being named the domiciliary parent.

Almost immediately, it became apparent that much of Molly’s argument at trial was going to be centered around the sexual abuse allegations which allegedly occurred prior to November 27, 2007. As a result and before proceeding any further, the trial court once again reminded the parties that it was going to exclude any evidence of events prior to that date.

|fiMolly’s testimony was broken up over the three days of trial due to the availability of certain experts and witnesses. Molly first testified to the problems involving A.W.M. and visitation with Mark shortly after the parties entered the consent judgment. Molly explained that A.W.M.’s stuttering problem became considerably worse after November 27, 2007, and that his stuttering seemed to correlate with visitations with his father. Molly also testified that around this time, A.W.M. was very hesitant about visiting Mark, and would often cry and call home asking her to come and get him. Molly stated that it was a common occurrence for A.W.M. not to spend the entire visitation period with Mark due to A.W.M. becoming upset and .wanting to return home. However, she noted that these situations have improved as A.W.M. has grown older.

Mark was also questioned about his relationship with A.W.M. following November 27, 2007. Mark explained that it was very “rocky” during the first few years, and he experienced quite a few problems with A.W.M. wanting to spend the entire visitation period with him. He testified that sometimes A.W.M.

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Cite This Page — Counsel Stack

Bluebook (online)
154 So. 3d 655, 2014 La. App. LEXIS 2753, 2014 WL 6464643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manno-v-manno-lactapp-2014.