Mendoza v. Mendoza

82 So. 3d 411, 11 La.App. 5 Cir. 113, 2011 WL 6187096, 2011 La. App. LEXIS 1498
CourtLouisiana Court of Appeal
DecidedDecember 13, 2011
DocketNo. 11-CA-113
StatusPublished
Cited by2 cases

This text of 82 So. 3d 411 (Mendoza v. Mendoza) 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
Mendoza v. Mendoza, 82 So. 3d 411, 11 La.App. 5 Cir. 113, 2011 WL 6187096, 2011 La. App. LEXIS 1498 (La. Ct. App. 2011).

Opinion

JUDE G. GRAVOIS, Judge.

|2This is an appeal by Nicole Ann Mendoza, plaintiff-appellant, from a judgment of the trial court awarding sole custody of the two minor children of her marriage to the children’s father, her ex-husband, Kevin Mendoza, defendant-appellee. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

The marriage of Nicole and Kevin was dissolved in 1998, at which time they had two minor daughters. By consent of the parties, joint custody was ordered, with Nicole being named the custodial parent. That arrangement persisted until 2006, when Nicole became involved in a contentious divorce from her second husband. It further appears that prior to that proceeding, Nicole had been diagnosed with a bipolar condition which the Social Security Administration determined was of sufficient severity to qualify her for disability benefits. Kevin filed a rule to change the custodial arrangement, and on May 11, 2006, a second lsconsent judgment was entered into continuing the joint custody regime, but making Kevin the custodial parent.

Beginning in 2009, various legal skirmishes were instituted by the parties which culminated in an April 21, 2010 consent order that Nicole be evaluated by a mental health professional to determine if joint custody should be continued. This evaluation was done by a clinical psychologist, Rafael Salcedo, Ph.D. A hearing on the rule to determine the custody regime was held on September 7, 2010, with Nicole appearing in proper person. After hearing testimony from the parties, the trial court granted Nicole thirty days to provide the deposition of Dr. Anwar Ismail, her treating physician for her bipolar disorder. Upon request, she was subsequently given additional time, until October 21, 2010, to submit the deposition. When the deposition was not produced by November 22, 2010, the trial court issued its judgment. On December 1, 2010, Nicole sought leave to submit the deposition. The trial judge denied her request. Three weeks after rendition of the judgment, and some two weeks after she had filed her notice of appeal, Nicole urged a motion for written reasons for judgment, which was also denied by the trial court as untimely.

The judgment of November 22, 2010 granted Kevin sole custody of the two children, with specific visitation privileges being permitted to Nicole. Nicole now appeals.

Five assignments of error are urged. Three of these assignments challenge the award of sole custody to Kevin. The fourth assignment asserts that it was error for the trial judge to exclude the deposition testimony of Dr. Ismail, and the final assignment contends that it was error for the trial judge to deny Nicole’s request for written reasons for judgment.

ASSIGNMENT OF ERROR NO. ONE— Failure to apply the Bergeron standard

Nicole first argues that the trial court erred in not applying the rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). In that case, the Supreme Court held that where a considered decree of custody has been made, the party seeking a change bears a heavy burden of showing [414]*414by clear and convincing evidence that the arrangement is so deleterious to the child as to justify changing the decree. In the present matter, there was never a considered decree issued by the court. Rather, the original 1998 decree and the subsequent 2006 decree were both done by way of consent of the parties. Thus, the Ber-geron standard of proof is not applicable here. Penn v. Penn, 09-213 (La.App. 5 Cir. 10/27/09), 28 So.3d 304. We thus reject this assignment of error.

ASSIGNMENT OF ERROR NO. TWO— Exclusion of plaintiff’s doctor’s deposition

Nicole’s next assignment of error asserts that the trial court erred in excluding the introduction of the deposition of Dr. Anwar Ismail, her treating physician for her bipolar disorder. This problem arose because Nicole had not requested a subpoena for Dr. Ismail’s appearance at trial in sufficient time for him to be served. As noted above, the trial judge granted Nicole thirty days to take Dr. Ismail’s deposition and to file it into the record. On Nicole’s motion, she was granted additional time, until October 21, 2010, to file the deposition, but failed to do so. Having not received the deposition or a motion for a further extension of time by November 22, 2010, the trial judge issued his judgment. A December 1, 2011 motion by Nicole to allow introduction of the deposition was denied by the trial court as untimely.

|sA motion to hold a case open for submission of additional evidence is in the nature of a request for a continuance. Juneau v. Richard, 96-215 (La.App. 3 Cir. 11/13/96), 682 So.2d 1010, writ denied, 96-2988 (La.1/31/97), 687 So.2d 413. Continuances are governed by La. C.C.P. arts. 1601, et seq. Article 1602 provides peremptory grounds for which a continuance shall be granted and includes the situation where a party has been unable, “with the exercise of due diligence, to obtain evidence material to his case.” In the present case, Nicole failed to request a subpoena for Dr. Ismail’s appearance at trial in sufficient time for him to be served. Nonetheless, the trial judge granted her thirty days to obtain the deposition, and then further extended that time at her request. When the deposition was not filed by the extended date, the trial judge waited an additional thirty days during which time the deposition was still not put into evidence. At that point, the trial judge issued his judgment. A decision on whether to hold a case open for submission of additional evidence lies within the sound discretion of the trial judge, and will not be disturbed on appeal absent clear error. Juneau v. Richard, supra. We find no such error here. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. THREE — Awarding of sole custody to the father

In her next assignment of error, Nicole argues that the trial court erred in not awarding joint custody of the children to her and Kevin, as per La. C.C. art. 132.

In Penn v. Penn, supra, this Court explained the procedures to be used when a change in a consent custody decree is sought. It first noted that the primary consideration in custody disputes is always the best interest of the child. La. C.C. art. 131. Where the parents agree to a custody arrangement, that arrangement should be followed, unless the best interest of the child requires a different result. |fiWhere the parents cannot agree, the court shall award joint custody unless it is shown by clear and convincing evidence that sole custody is in the best interest of the child. La. C.C. art. 132. In determining the [415]*415child’s best interest, the court is to consider the non-exclusive list of factors set forth in La. C.G. art. 134, but is not bound to make a mechanical evaluation of each. Rather, a custody decision must be made in light of the peculiar set of facts and relationships involved in order to reach a decision as to what is in the best interest of the child. This Court further noted that a trial court’s custody determination is entitled to great weight and will not be disturbed on appeal absent a clear showing of abuse of discretion. Finally, it ruled that where the parties have consented to a custody decree, the party seeking modification must show that there has been a material change in circumstances since the original decree, and that the proposed modification is in the best interest of the child.

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Bluebook (online)
82 So. 3d 411, 11 La.App. 5 Cir. 113, 2011 WL 6187096, 2011 La. App. LEXIS 1498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mendoza-v-mendoza-lactapp-2011.