Prevo v. Mosby

246 So. 3d 622
CourtLouisiana Court of Appeal
DecidedNovember 3, 2017
DocketNo. 51,822–CA
StatusPublished

This text of 246 So. 3d 622 (Prevo v. Mosby) 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
Prevo v. Mosby, 246 So. 3d 622 (La. Ct. App. 2017).

Opinion

DREW, J.

In this child custody matter, the father appeals a judgment awarding joint custody, with the mother having domiciliary status. We affirm.

FACTS AND PROCEDURAL HISTORY

This is an appeal from a decision modifying the parties' respective child custody rights regarding their child, C.M. Milton Mosby and Sharunda Prevo apparently are the biological father and biological mother of two minor children-M.M. and C.M.

On October 6, 2016, the parties filed protective orders against each other on behalf of C.M. Milton alleged that Sharunda was responsible for "kidnapping" C.M. while he was in Milton's legal custody. Sharunda alleged that Milton had kicked C.M. out of his house, leaving C.M. homeless until she took C.M. into her home.

In ruling on these protective orders, the trial court modified the custody arrangement-by awarding joint custody, with domiciliary parent status awarded to Sharunda. The appellant was awarded "visitation" every other weekend. The previous custody *624arrangement had been more favorable to Milton, and was based in part on the fact that several years ago, Sharunda's former husband, Josh Vallo, raped M.M. As a result, Josh Vallo was convicted of aggravated incest in 2010.

TRIAL COURT's REASONS FOR JUDGMENT

The trial court offered oral reasons for judgment. The court noted that its duty is to do what is in the best interest of the minor child, C.M.; it also found a substantial material change in circumstances based on several facts. First, Josh Vallo is no longer a threat to the children as he is now imprisoned. Second, the court specifically found C.M.'s testimony-that he wants to live with his mother-to be "credible, true and genuine." The court also found that C.M., a 16 -year-old, has "reached the age of reason," and accorded substantial weight to C.M.'s preference. Third, the court also addressed problems that had occurred while the children were living with Milton, including the testimony of several witnesses that Milton had failed to pick up the children from the babysitter, and the children's testimony that Milton put C.M. out of the house.

APPELLANT's ASSIGNMENTS OF ERROR AND ARGUMENTS

Milton was not represented by counsel in the lower court and is not represented by counsel on this appeal. He appears to make the following arguments:

• The trial court lacked jurisdiction.
• He could not get a fair trial from any judge at the Second Judicial District Court because Sharunda is suing two judges of that court in a federal lawsuit; Judge Boddie, sitting ad hoc and not a party to federal lawsuit, ruled against Milton to placate Sharunda in regard to the federal lawsuit.
• The trial court ignored Sharunda's "kidnapping" of C.M.
• Judge Boddie erred in letting "Officer Trent Cook go October 24, 2016," without Milton first obtaining testimony from Officer Cook.
• The trial judge erred "when he did not get" Chief Mary Hoof from the Cullen Police Department; despite that she was subpoenaed for October 24, 2016, January 10, 2017, and May 28, 2017, she did not come to court one time.
• Judge Boddie erred "when he did not get Cyerra Prevo to court to testify to her Part kidnapping C.M.," despite that she was subpoenaed for May 28, 2017.

Jurisdiction of the trial court

Milton claims that the Second Judicial District Court lacked jurisdiction to modify the previous custody order regarding C.M.

District courts have original jurisdiction of all civil matters, except: (1) in worker's compensation matters; and (2) other matters specifically authorized by the Louisiana Constitution. La. Const. art. V, § 16. In this case, the district court had-and properly exercised-child custody jurisdiction regarding C.M.1

Judge Boddie's alleged bias

Milton argues that it was error for Judge Boddie to hear the case because Sharunda has filed a federal lawsuit against two judges of the Second Judicial District Court, also regarding the custody of C.M. Milton implies that, in this case, *625Judge Boddie ruled in favor of Sharunda to placate her regarding the federal lawsuit.

However, Milton does not allege that Judge Boddie is a party to the federal lawsuit. Furthermore, we note that, because the judges of the Second Judicial District Court were recused, Judge Boddie was appointed ad hoc to hear this case. Thus, the apparent purpose of Judge Boddie's appointment was to remedy any supposed bias on the part of the Second Judicial District Court judges. We must consider that purpose to have been accomplished-indeed, the record is devoid of contrary evidence.

Additionally, Milton waived his right to object to Judge Boddie presiding over the case. La. C.C.P. art. 154 sets forth the procedure for recusing a judge, as follows:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recusation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

A party who fails to file a motion to recuse the judge despite the party's knowledge of the grounds for recusation waives his right to urge recusal upon the passage of the deadlines set forth in La. C.C.P. art. 154. Settle v. Bossier Parish School Bd. , 47,644 (La. App. 2 Cir. 7/3/12), 93 So.3d 1284, writ denied , 2012-1569 (La. 7/11/12), 92 So.3d 347.

Despite being fully aware of the federal lawsuit,2 Milton failed to file a motion to recuse Judge Boddie at any time in the trial court. Accordingly, Milton waived his right to complain about Judge Boddie's alleged bias.

Trial court's finding that Sharunda did not kidnap C.M.

"In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong." Hall v. Folger Coffee Co., 2003-1734 (La. 4/14/04), 874 So.2d 90. Upon review of the record, we hold that the trial court's finding that Sharunda did not "kidnap" C.M.-or have him kidnapped-was well supported by the record and not manifestly erroneous. Most importantly, C.M.

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Related

Hall v. Folger Coffee Co.
874 So. 2d 90 (Supreme Court of Louisiana, 2004)
Hawkins v. City of Bossier
211 So. 3d 665 (Louisiana Court of Appeal, 2017)
Settle v. Bossier Parish School Board
93 So. 3d 1284 (Louisiana Court of Appeal, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
246 So. 3d 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prevo-v-mosby-lactapp-2017.