NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 11-289
NICOLE LORMAND
VERSUS
DAVID A. LORMAND
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2010-4869 HONORABLE H. WARD FONTENOT, PRESIDING
**********
J. DAVID PAINTER JUDGE
********** Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Harold D. Register P.O. Box 80214 Lafayette, LA 70598 Counsel for Plaintiff/Appellant: Nicole Lormand
Michael C. Piccione Evelyn S. Adams P.O. Box 2370 Lafayette, LA 70501 Counsel for Defendant/Appellee: David A. Lormand PAINTER, Judge.
Plaintiff, Nicole Lormand, appeals the trial court’s custody judgment. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Nicole and David Lormand were married in January 2004, having had one
child, Mayci, born prior to the marriage in November 2003. Nicole filed a petition
for divorce in July 2010. In her petition, Nicole asked to be given sole custody of the
child, with reasonable visitation to David. David answered the petition and entered
a reconventional demand asking, among other things that are not the subject of this
appeal, for sole custody of the child or, alternatively, for joint custody. A hearing
officer conference was set for September 15, 2010. On that date, the hearing officer
ordered drug testing of both parties.
Selena Lormand, David’s mother, intervened in the action alleging that she had
custody of the child and asking for sole custody or, alternatively, for joint custody
with the parents. With her intervention, Selena filed a “Provisional Custody by
Mandate” signed by the parties and the court on December 10, 2007, in which she
was granted custody of the child for one year by the consent of the parents.
The trial court set a hearing on the petition for intervention for January 19,
2011. On November 4, 2010, David and Selena filed an “Ex Parte Motion and Order
for Immediate Custody” alleging that Nicole had tested positive for marijuana and
hydrocodone use and that, as a result, they should be granted immediate custody of
the child with supervised visitation for Nicole pending the action on the original
custody motion. On that date, the trial court ordered immediate surrender of the child
and supervised visitation for Nicole. The court further set the matter for a hearing
1 for November 18, 2010, set a hearing officer conference for January 19, 2011, to
determine permanent custody, and, in the case that all issues were not resolved, a
court hearing on February 3, 2011. In response, Nicole filed a “Motion to Null and
Void Ex Parte Order of Custody and Rule to Show Cause.” According to the court’s
minutes, the court granted Nicole’s petition at the November 18, 2010 hearing. The
order signed that day states: “The Ex Parte Motion and Order for Custody concerning
the minor child, Mayci Lormand, is made null and void on its failure to comply with
Article 3945 or the Louisiana Code of Civil Procedure. See hearing officer
recommendation.”
On November 16, the Hearing Officer Conference Report was filed with the
trial court, copies having been faxed to the parties the previous day. The report
included the following recommendation:
It is recommended that the parties shall have the joint custody of the minor child with the father designated as the primary domiciliary parent. At the hearing, both parties vehemently asserted that he/she did not have a drug problem. Drug testing was ordered. The father tested negative, but the mother tested positive for hydrocodone and marijuana.
The mother shall have supervised visitation to be supervised by a mutually agreed upon person. If the parties cannot agree as to the supervisor of the mother’s visitation either party or his/her counsel may set up a telephone conference with the hearing officer to discuss the appointment of an appropriate supervisor.
It is recommended that the mother have alternating weekends with the minor child during the day in Louisiana on Saturdays and Sundays from 10 am until 6 pm under the supervision of a mutually agreed upon third party. If the mother moves back to Louisiana, she may seek expansion of her regular visitation as the court most certainly would set up a schedule providing for more frequent custodial times. It is further recommended that the parties share time on Thanksgiving, Christmas Eve and Christmas Day with the mother having visitation each afternoon of those holidays from 3 pm until 9 pm under the direct supervision of a mutually agreed upon person. The supervisor shall adhere to the rules pertaining to supervisors attached hereto and made a part hereof.
2 It is further recommended that the father is permitted to demand three random drug tests, including hair follicle and urine tests, over the next nine months upon his counsel contacting mother’s counsel in the morning and the mother submitting to testing within 24 hours of the request. She shall not alter her hair in any manner (no dye, no cutting, etc.) after the request is made and before the hair sample is taken. The tests shall be at her costs.
No objections were filed to the hearing officer’s recommendations. On
November 18, 2010, David and Selena again filed an “Ex Parte Motion and Order for
Immediate Custody,” this time in compliance with the provisions of La.Code Civ.P.
art. 3945. The court again ordered immediate turn over of the child with supervised
visitation to Nicole and set a hearing on the motion for December 21, 2010.
However, on December 21, 2010, the trial court signed the judgment attached to the
hearing officer’s recommendations declaring the recommendations to be the judgment
of the court.
DISCUSSION
Hearing Officer Recommendation Deficiency
Nicole first asserts that the trial court erred in declaring the hearing officer’s
recommendations to be the judgment of the court because the recommendations did
not contain a statement of the findings of law as required by La.R.S. 46:236.5(C)(5),
which states that:
The written recommendation of the hearing officer shall contain all of the following:
(a) A statement of the pleadings.
(b) A statement as to the findings of fact by the hearing officer.
(c) A statement as to the findings of law based on the pleadings and facts, including his opinion thereon.
(d) A proposed judgment.
3 Nicole had the opportunity to object to the hearing officer recommendation
and failed to do so. Even if the hearing officer’s recommendations are deficient, we
find that the error is not such as to require that the judgment of the court be
overturned:
[W]hen an error is detected, it must be weighed to determine whether such error is harmless or prejudicial. Short v. Gaylord Chemical Corp., 1998-0606 (La.App. 1 Cir. 4/1/99), 731 So.2d 493, 496. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735.
Becker v. Jefferson Parish Dep’t of Parks & Recreation, 09-662, p. 16 (La.App. 5
Cir. 1/12/10), 30 So.3d 1007, 1016.
In support of her position, Nicole cites Crawford v. Crawford, 02-168 (La.App.
3 Cir. 11/13/02), 833 So.2d 361, in which this court remanded to the hearing officer
to comply with the statutory requirement that the recommendations include a
proposed judgment. However, in that case, the lack of a judgment worked a prejudice
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NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT 11-289
NICOLE LORMAND
VERSUS
DAVID A. LORMAND
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2010-4869 HONORABLE H. WARD FONTENOT, PRESIDING
**********
J. DAVID PAINTER JUDGE
********** Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Harold D. Register P.O. Box 80214 Lafayette, LA 70598 Counsel for Plaintiff/Appellant: Nicole Lormand
Michael C. Piccione Evelyn S. Adams P.O. Box 2370 Lafayette, LA 70501 Counsel for Defendant/Appellee: David A. Lormand PAINTER, Judge.
Plaintiff, Nicole Lormand, appeals the trial court’s custody judgment. For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Nicole and David Lormand were married in January 2004, having had one
child, Mayci, born prior to the marriage in November 2003. Nicole filed a petition
for divorce in July 2010. In her petition, Nicole asked to be given sole custody of the
child, with reasonable visitation to David. David answered the petition and entered
a reconventional demand asking, among other things that are not the subject of this
appeal, for sole custody of the child or, alternatively, for joint custody. A hearing
officer conference was set for September 15, 2010. On that date, the hearing officer
ordered drug testing of both parties.
Selena Lormand, David’s mother, intervened in the action alleging that she had
custody of the child and asking for sole custody or, alternatively, for joint custody
with the parents. With her intervention, Selena filed a “Provisional Custody by
Mandate” signed by the parties and the court on December 10, 2007, in which she
was granted custody of the child for one year by the consent of the parents.
The trial court set a hearing on the petition for intervention for January 19,
2011. On November 4, 2010, David and Selena filed an “Ex Parte Motion and Order
for Immediate Custody” alleging that Nicole had tested positive for marijuana and
hydrocodone use and that, as a result, they should be granted immediate custody of
the child with supervised visitation for Nicole pending the action on the original
custody motion. On that date, the trial court ordered immediate surrender of the child
and supervised visitation for Nicole. The court further set the matter for a hearing
1 for November 18, 2010, set a hearing officer conference for January 19, 2011, to
determine permanent custody, and, in the case that all issues were not resolved, a
court hearing on February 3, 2011. In response, Nicole filed a “Motion to Null and
Void Ex Parte Order of Custody and Rule to Show Cause.” According to the court’s
minutes, the court granted Nicole’s petition at the November 18, 2010 hearing. The
order signed that day states: “The Ex Parte Motion and Order for Custody concerning
the minor child, Mayci Lormand, is made null and void on its failure to comply with
Article 3945 or the Louisiana Code of Civil Procedure. See hearing officer
recommendation.”
On November 16, the Hearing Officer Conference Report was filed with the
trial court, copies having been faxed to the parties the previous day. The report
included the following recommendation:
It is recommended that the parties shall have the joint custody of the minor child with the father designated as the primary domiciliary parent. At the hearing, both parties vehemently asserted that he/she did not have a drug problem. Drug testing was ordered. The father tested negative, but the mother tested positive for hydrocodone and marijuana.
The mother shall have supervised visitation to be supervised by a mutually agreed upon person. If the parties cannot agree as to the supervisor of the mother’s visitation either party or his/her counsel may set up a telephone conference with the hearing officer to discuss the appointment of an appropriate supervisor.
It is recommended that the mother have alternating weekends with the minor child during the day in Louisiana on Saturdays and Sundays from 10 am until 6 pm under the supervision of a mutually agreed upon third party. If the mother moves back to Louisiana, she may seek expansion of her regular visitation as the court most certainly would set up a schedule providing for more frequent custodial times. It is further recommended that the parties share time on Thanksgiving, Christmas Eve and Christmas Day with the mother having visitation each afternoon of those holidays from 3 pm until 9 pm under the direct supervision of a mutually agreed upon person. The supervisor shall adhere to the rules pertaining to supervisors attached hereto and made a part hereof.
2 It is further recommended that the father is permitted to demand three random drug tests, including hair follicle and urine tests, over the next nine months upon his counsel contacting mother’s counsel in the morning and the mother submitting to testing within 24 hours of the request. She shall not alter her hair in any manner (no dye, no cutting, etc.) after the request is made and before the hair sample is taken. The tests shall be at her costs.
No objections were filed to the hearing officer’s recommendations. On
November 18, 2010, David and Selena again filed an “Ex Parte Motion and Order for
Immediate Custody,” this time in compliance with the provisions of La.Code Civ.P.
art. 3945. The court again ordered immediate turn over of the child with supervised
visitation to Nicole and set a hearing on the motion for December 21, 2010.
However, on December 21, 2010, the trial court signed the judgment attached to the
hearing officer’s recommendations declaring the recommendations to be the judgment
of the court.
DISCUSSION
Hearing Officer Recommendation Deficiency
Nicole first asserts that the trial court erred in declaring the hearing officer’s
recommendations to be the judgment of the court because the recommendations did
not contain a statement of the findings of law as required by La.R.S. 46:236.5(C)(5),
which states that:
The written recommendation of the hearing officer shall contain all of the following:
(a) A statement of the pleadings.
(b) A statement as to the findings of fact by the hearing officer.
(c) A statement as to the findings of law based on the pleadings and facts, including his opinion thereon.
(d) A proposed judgment.
3 Nicole had the opportunity to object to the hearing officer recommendation
and failed to do so. Even if the hearing officer’s recommendations are deficient, we
find that the error is not such as to require that the judgment of the court be
overturned:
[W]hen an error is detected, it must be weighed to determine whether such error is harmless or prejudicial. Short v. Gaylord Chemical Corp., 1998-0606 (La.App. 1 Cir. 4/1/99), 731 So.2d 493, 496. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735.
Becker v. Jefferson Parish Dep’t of Parks & Recreation, 09-662, p. 16 (La.App. 5
Cir. 1/12/10), 30 So.3d 1007, 1016.
In support of her position, Nicole cites Crawford v. Crawford, 02-168 (La.App.
3 Cir. 11/13/02), 833 So.2d 361, in which this court remanded to the hearing officer
to comply with the statutory requirement that the recommendations include a
proposed judgment. However, in that case, the lack of a judgment worked a prejudice
on the parties in that they were unable to agree to a proposed judgment. Nicole does
not allege any prejudice to her arising out of the alleged failure to comply with the
statute, and we find none.
Custody Decree
Next Nicole asserts that the hearing officer erred manifestly in appointing
David physical custodian and limiting her to supervised visitation. Louisiana Revised
Statutes 46:236.5(C)(3) provides that the hearing officer is to act as a finder of fact.
This court has outlined the review of factual findings in a custody matter as
follows:
It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).
4 If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Each child custody case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3 Cir.1990). The best interest evaluation is fact-intensive and requires the weighing and balancing of factors favoring or opposing custody of the competing parties on the basis of the evidence presented in each case. Romanowski v. Romanowski, 03-124 (La.App. 1 Cir. 2/23/04), 873 So.2d 656. The trial court is vested with broad discretion in deciding child custody cases and its decision will not be disturbed absent a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982); Stephens v. Stephens, 02-402 (La.App. 1 Cir. 6/21/02), 822 So.2d 770.
Griffith v. Latiolais, 09-0824, pp. 6-7 (La.App. 3 Cir. 3/3/10), 32 So.3d 380, 386,
rev’d on other grounds, 10-0754 (La. 10/19/10), 48 So.3d 1058.
After reviewing the hearing officer’s findings of fact and given Nicole’s failed
drug test, the evidence that she attempted to deceive the hearing officer with an out
of date prescription, and the uncontested allegations of neglectful behavior with
regard to the child, we find no abuse of discretion in the hearing officer’s finding and
recommendation with regard to custody.
Dismissal of Pending Matters
Nicole further asserts that the trial court erred in dismissing the pending
hearing on permanent custody set for a hearing officer conference on January 19,
2011, and for hearing on February 3, 2011. Nicole asserts that this violates the
provisions of La.Code Civ.P. art. 1672 concerning involuntary dismissal of cases.
However, the case herein was not dismissed without a hearing. These hearings were
in response to David and Serena’s ex parte motion for custody, which were filed in
response to a perceived emergency situation: the drug test results and the child having
been taken from the state. On September 15, 2010, prior to the filing of the ex parte
5 motions, the hearing officer heard the original custody request filed with David’s
answer to the petition. The recommendation from that hearing was delayed due to the
ordered drug testing. However, once the results of the drug testing were received, the
hearing officer rendered a recommendation pursuant to the September 15 hearing.
That recommendation became a final judgment by operation of law when neither
party objected within three days. See La.R.S. 46:236.5(C)(7). The custody matter
proceeded to final judgment. This action rendered the hearing on the ex parte
motions moot. Therefore, this assignment of error is baseless.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of
this appeal are assessed to the Plaintiff/Appellant, Nicole Lormand.