Pinegar v. Harris

961 So. 2d 1246, 2007 WL 1300957
CourtLouisiana Court of Appeal
DecidedMay 16, 2007
Docket2006 CU 2489
StatusPublished
Cited by17 cases

This text of 961 So. 2d 1246 (Pinegar v. Harris) 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
Pinegar v. Harris, 961 So. 2d 1246, 2007 WL 1300957 (La. Ct. App. 2007).

Opinion

961 So.2d 1246 (2007)

Jamie Michele PINEGAR
v.
Bradley Falcon HARRIS.

No. 2006 CU 2489.

Court of Appeal of Louisiana, First Circuit.

May 4, 2007.
Dissenting Opinion May 16, 2007.
Rehearing Denied July 17, 2007.

*1248 David R. Paddison, Yvonne Chalker, Covington, La., for Plaintiff/Appellee, Jamie Michele Pinegar.

Deborah P. Gibbs, Baton Rouge, La., Margaret H. Kern, Covington, La., for Defendant/Appellant, Bradley Falcon Harris.

Before: CARTER, C.J., WHIPPLE and MCDONALD, JJ.

Dissenting Opinion of Justice McDonald, May 16, 2007.

*1249 CARTER, C.J.

This is a child custody dispute. The father, Bradley Falcon Harris, appeals the Twenty-Second Judicial District Court judgment of September 12, 2006, maintaining joint custody of the minor child but modifying the custody schedule and designating the mother, Jamie Michelle Pinegar, as the domiciliary parent. Ms. Pinegar answers the appeal.[1] We affirm.

Appellate Motions

Mr. Harris sought leave of this court to attach to his appellate brief items filed into evidence during the present proceeding, as well as matters filed in the matter of "Jamie Michele Pinegar v. Bradley Falcon Harris," Nineteenth Judicial District Court, docket number 145,715. Ms. Pinegar filed a motion to strike the exhibits and references thereto within Mr. Harris's brief.

Pursuant to LSA-C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal.[2] An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Guedry v. Fromenthal, 633 So.2d 287, 289 (La.App. 1 Cir.1993). For this reason, an appellate court cannot consider exhibits attached to an appellate brief that were not filed into evidence at trial. United General Title Insurance Co. v. Casey Title, Ltd., 01-600 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065.

This court also is precluded from taking judicial notice of a suit record from another court. Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. Louisiana Code of Evidence article 202 provides for mandatory judicial notice of federal and state laws and certain ordinances. Article 202 also provides for notice of various legal matters, when requested by a party and with proper documentation. Although a court may take judicial notice of its own proceedings, Article 202 does not allow courts to take judicial notice of other courts' proceedings. Documentation of other courts' proceedings must be offered into evidence in the usual manner. United General, 800 So.2d at 1065.

For the above-stated reasons, the motion to attach exhibits to Mr. Harris's appellate brief is denied. Exhibits A-C, F-K, M, and O-R arise from litigation in a separate suit record, number 145,715 in the Nineteenth Judicial District Court. The remaining exhibits (D, E, L, and N) are part of the present appellate record, making their attachment as exhibits unnecessary. To the extent Mr. Harris's brief references items not part of the record on appeal, the motion to strike filed by Ms. Pinegar is granted.

Facts and Procedural History

Mr. Harris and Ms. Pinegar are the parents of a preschool age daughter. The couple never married. Offered and accepted into evidence during the hearing on the rule to modify custody were three earlier consent judgments entered in the *1250 Nineteenth Judicial District Court, East Baton Rouge Parish, under docket number 145,715. The judgments were signed September 2, 2003; May 16, 2005;[3] and April 26, 2006. The consent judgments reflect that the parents have shared physical custody of the child, in alternating weeks, since her birth. Neither parent is named as the domiciliary parent.

Ms. Pinegar and her child live alone in St. Tammany Parish. Before that, the two resided in New Orleans. In the fall of 2006, Ms. Pinegar was beginning her second year of teaching in the St. Tammany Parish School System. While with her mother in St. Tammany Parish, the child attends St. Michael's Episcopal School pre-kindergarten. The child's pediatrician and therapist also are located in St. Tammany Parish. Mr. Harris does not know the name of the child's pediatrician, and he has never visited the child's classroom or met her teacher in St. Tammany Parish.

When with her father in Baton Rouge, the child resides with her father and his brother. Prior to the fall of 2006, when with her father, the child attended a part-time preschool program in Baton Rouge. Her paternal grandmother was primarily responsible for getting her to and from her Baton Rouge preschool and for staying with the child while her father was at work. In the spring of 2006, Mr. Harris registered the child for a full-time preschool program in Baton Rouge. Mr. Harris registered the child without Ms. Pinegar's consent and knowing that Ms. Pinegar objected to his actions. When Ms. Pinegar spoke with the teacher in her daughter's new school, she learned that, although listed as the child's mother, her contact information had not been provided to the school.

On May 26, 2006, Ms. Pinegar filed the present rule to modify custody and support in St. Tammany Parish. The rule was set for a hearing on July 25, 2006. On July 20, 2006, Mr. Harris moved to continue the hearing. That same date, Mr. Harris filed an exception raising the objections of insufficiency of service of process, improper venue, res judicata, and no cause of action. A hearing on the exception and the rule to modify custody was held on August 22, 2006.

During the hearing, the court heard testimony from Mr. Harris, Mr. Lawrence Harris (the paternal grandfather), and Ms. Pinegar. The court overruled all of the objections raised in Mr. Harris's exception. In particular, the district court ruled that venue was proper in St. Tammany Parish. Following the ruling on the exception, Mr. Harris indicated his desire to seek supervisory review of the district court's denial of his exception raising an objection to venue. Mr. Harris would not agree to an interim order regarding custody pending the resolution of the writ application. Mr. Harris also would not agree to a custody evaluation under LSA-R.S. 9:331.

Accordingly, at the end of the hearing on the rule to modify custody, the trial court rendered its judgment. Although the parents would continue to share joint custody, the alternating week schedule was discontinued. Mr. Harris would enjoy custody of his child every other weekend, from Thursday through Sunday until the child started kindergarten, and a holiday schedule also was put in place. Ms. Pinegar was named as the domiciliary parent. A written judgment was signed on September 12, 2006.

Judgment of September 12, 2006

Venue

Following the denial of his declinatory exception raising an objection to venue *1251 in St. Tammany Parish, Mr. Harris immediately sought supervisory review with this court. On October 20, 2006, this court denied writs, making the following statement: "St. Tammany Parish is a parish of proper venue pursuant to the provision of La. C.C.P. art. 74.2 B, as there has been no designation of domiciliary status and both parties have custody." One judge dissented, noting "[t]he only proper venue for this ongoing litigation is in the East Baton Rouge Parish Family Court." Pinegar v. Harris, 06-2035 (La.App. 1 Cir. 10/20/06) (not designated for publication), writ denied, 06-2749 (La.11/21/06), 942 So.2d 544. On appeal, Mr.

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Bluebook (online)
961 So. 2d 1246, 2007 WL 1300957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinegar-v-harris-lactapp-2007.