Trish R. Veronie v. Joseph v. Van Brocklin Mireles

• Court: Louisiana Court of Appeal
• Decided: June 8, 2022
• Docket: CA-0022-0105
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

22-105

TRISH R. VERONIE

VERSUS

JOSEPH VICTOR VAN BROCKLIN MIRELES

************ APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 20183897 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

************ SYLVIA R. COOKS CHIEF JUDGE ************

Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Sharon Darville Wilson, Judges.

AFFIRMED.

Paula Bertuccini Bertuccini Law Firm 225 West Main Street Lafayette, LA 70501 (337) 456-2777 COUNSEL FOR DEFENDANT/APPELLANT: Joseph Victor Van Brocklin Mireles

William A. Keaty, II Keaty & Tilly, LLC 2701 Johnston Street, Suite 307 Lafayette, LA 70503 (337) 347-8995 COUNSEL FOR PLAINTIFF/APPELLEE: Trish R. Veronie COOKS, Chief Judge.

Joseph Van Brocklin Mireles and Trish Veronie were married on May 9, 2015,

in the State of Louisiana. Shortly after the marriage the couple moved to Ohio as a

result of a change in Joe’s employment. In the summer of 2016, while residing in

Ohio, Trish became pregnant. There was a dispute between the parties as to Joe’s

reaction to this news. Joe did acknowledge he told Trish that he “did not think it

was a good idea to bring a child into a marriage with issues.” However, Trish

maintained she was told by Joe that she could either have an abortion or put the baby

up for adoption.

The couple did agree to relocate back to Louisiana, where Trish could be

closer to her family. Joe was also working in Louisiana again for Acadian

Ambulance as a helicopter pilot. Joe had begun a schedule where he was working

seven days in Louisiana then seven days in Ohio. Joe maintained this schedule until

April of 2018. In July of 2016, Trish and Joe’s son from a prior relationship,

Christian, who was thirteen, moved in with Trish’s parents in Scott, Louisiana. Trish

enrolled Christian in middle school in Scott and cared for him during this period.

Joe was supposed to follow them to Louisiana shortly after the relocation, but never

did. He had minimal to no contact with Christian during this period, despite working

every other week in Louisiana, where he would stay in a hotel. On August 16, 2016,

Joe’s brother-in-law picked up Christian and took him back to Ohio. Joe maintained

there was an incident where Trish ended up choking Christian, which was the reason

he moved him out of Louisiana. Trish vehemently denied any such incident ever

took place. Trish never saw Christian again.

On October 28, 2016, Joe filed a Petition for Divorce and Custody in Medina

County, Ohio. The record established Joe began a relationship with another woman

in Ohio, which he acknowledged in a text message to Trish, where he also told her

not to call him and to refer any questions or concerns to his attorney. Trish gave

2 birth to a daughter, Olivia, on February 11, 2017. Trish did not list Joe as the Olivia’s

father on the birth certificate. Joe asserted he was not aware of the birth of Olivia

until late February of 2017.

Approximately six weeks after Olivia’s birth, Joe called to inquire about the

child. Trish’s mother initially hung up on him, but when he called back Trish, who

later stated she was very angry about Joe’s actions, told him she had given the baby

up for adoption and hung up. A few days later, Joe was informed by Trish’s mother

that Olivia was fine and had not been given up for adoption. Although now aware

that Olivia was at home with Trish, Joe did not ask to see Olivia, nor did he provide

any financial support. Trish did ask him to assist in paying the OBGYN for the

delivery and prenatal care, but Joe did not do so.

When Olivia was nearly one year old, it was discovered she had a congenital

heart defect and would require open heart surgery. Trish called Joe to tell him about

the surgery and, according to her, Joe was hostile over the phone about Trish

allowing the doctors in Louisiana to perform the surgery. Eventually, Trish and her

mother gave Joe the details about the place, time, and date of the surgery. The

surgery was postponed and rescheduled on two different occasions, which Trish

maintained she related to Joe. It was alleged by Joe that Trish intentionally gave

him the wrong date and location of the surgery and “he was unable to be there to

meet or support Olivia,” who he still had never met in person.

During this period, Joe’s Petition for Custody, filed on October 28, 2016 in

Ohio was pending. The issue of custody was continued until the child was born and

genetic testing could occur. On June 1, 2017, the Ohio court ruled that Ohio did not

have jurisdiction over issues of custody. A Motion to Set Aside was filed by Joe,

asking the Ohio court to find it did have jurisdiction over custody. On May 7, 2018,

the Ohio court issued a decision awarding Joe sole custody of Olivia and also

3 granting his request for child support. It is unclear if the Ohio court was aware that

Joe, to this point, had never met his fourteen-month-old daughter.

Trish was unaware of this development until she received a text message that

Joe wanted her cooperation in transitioning Olivia to Ohio. Trish immediately filed

an objection to the Magistrate’s ruling in Ohio, arguing it lacked jurisdiction under

the Uniform Child Custody Jurisdiction and Enforcement Act. While the matter was

pending in Ohio, Trish filed a Petition to Establish Custody in the Fifteenth Judicial

District Court in Lafayette Parish, Louisiana (hereafter 15th JDC) on June 20, 2018.

Joe responded and filed Exceptions of Lis Pendens and Lack of Subject Matter

Jurisdiction. The exception was sustained, and the 15 th JDC deferred to the Ohio

court to determine subject matter jurisdiction. On May 31, 2019, the Ohio court

ruled it had jurisdiction and reinstated the Magistrate’s judgment of sole custody in

favor of Joe. Trish filed an immediate appeal to that ruling.

Following the Ohio ruling, Joe filed a Petition for Expedited Enforcement of

Child Custody Determination in the 15th JDC seeking to enforce the Ohio ruling.

Joe, for the first time, met Olivia in his attorney’s office on November 1, 2019. The

15th JDC recognized the Ohio judgment as a valid judgment and ordered Olivia to

be placed in Joe’s custody. Olivia then was relocated to Ohio with Joe. Trish was

allocated one weekend per month of visitation and three phone calls per week.

On May 26, 2020, the Ninth Judicial District Court of Appeals in Ohio

reversed the lower Ohio court ruling and held that Louisiana was the home state of

Olivia. Immediately, Trish filed a motion in the 15th JDC to reset the issue of

custody. On June 20, 2020, a hearing officer conference was held, and it was

recommended that the parties be granted joint custody, with Trish designated as the

domiciliary parent. Joe was to be granted a week of custody each month. Joe

objected to the hearing officer’s recommendation.

4 In advance of trial, the trial court, on its own motion, appointed Dr. John

Simoneaux to perform an evaluation. Dr. Simoneaux ultimately recommended in

his report that Joe be named domiciliary parent. Dr. Simoneaux apparently based

this on his belief “that Joseph is more intelligent, importantly has longer vision, and

is in a better position to be entrusted with the primary responsibility” regarding

Olivia. In finding the facts of the case did not support Dr. Simoneaux’s

recommendation, the trial court noted that “most of the [information] provided to

[Dr. Simoneaux]” was from Joe, including video and audio recordings taken by Joe.

The district court found “the transmittal of this information directly by a party and

not through counsel is a violation of 15th JDC local rules.” The trial court also held

it would not consider the “intelligence of any party as a determining factor when

considering custody of a child, unless it is of such a state that one could absolutely

not raise a child. No evidence has been presented in this case to demonstrate such a

fact.” The trial court then went on to evaluate the best interest of Olivia based on an

analysis of the factors set forth in La.Civ.Code art. 134. The trial court concluded

those “factors support a finding that Trish should be named the domiciliary parent

of Olivia.” The trial court also prohibited the parties from recording or intercepting

communications between Olivia and the other parent. This appeal followed, wherein

Joe asserts the following assignments of error:

1. The trial court erred in excluding the written report of Dr. Aurich from the evidence at trial;

2. The trial court applied the wrong standard in its determination of custody, or in the alternative, abused its discretion in unreasonably refusing to take into consideration the intellectual capabilities of the parties as a factor in its determination of what was in the best interest of the child under the totality of the circumstances;

3. The trial court had no legal authority to order the parties to refrain from otherwise lawful activity, namely the recording or interception of communications whereby the child is a party to the communication and such recording or interception is in the best interest of the child.

5 ANALYSIS

The goal of every child custody case is to determine what is in the best interest

of the child, with each case viewed on its own particular facts and circumstances.

Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118 So.3d 357. Appellate courts will not

disturb an award of custody absent a manifest abuse of discretion in the trial court.

In Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La.1986), the Louisiana Supreme

Court described the appellate review standard by stating that “upon appellate review,

the determination of the trial judge in child custody matters is entitled to great

weight, and his discretion will not be disturbed on review in the absence of a clear

showing of abuse.”

I. Exclusion of Dr. Aurich’s Report.

To assist in his evaluation of Trish, Dr. Simoneaux requested that Trish see a

neuropsychologist, Dr. Lynn Aurich. Dr. Simoneaux then referred to the findings in

Dr. Aurich’s report in his deposition testimony. Counsel for Trish then filed a

Motion in Limine, as an attachment to Dr. Simoneaux’s deposition, objecting to the

admissibility of Dr. Aurich’s report. There was also an objection filed in open court

during trial when counsel for Joe attempted to introduce it. Joe maintains the trial

court erred in excluding the introduction of Dr. Aurich’s report,

As Joe acknowledges, the general rule in Louisiana is that reports prepared by

experts are inadmissible as hearsay. See La. Code Evid. art. 801(c). Joe argues there

is an exception recognized where a court-appointed expert’s report may be

admissible if the expert was available for cross examination. However, in this case,

Dr. Aurich was not appointed by the trial court. Dr. Simoneaux requested Dr. Aurich

examine Trish to assist in his evaluation of Trish. Dr. Simoneaux then supplemented

his report with Dr. Aurich’s opinions. Thus, under the law, Dr. Aurich’s report was

hearsay, and was properly excluded by the trial court.

6 Joe also argues the report should be admissible because Trish did not object

to Dr. Simoneaux’s referencing Dr. Aurich’s report at his depositions. As noted

above, the record establishes counsel for Trish objected twice to the admissibility of

Dr. Aurtich’s report, first in a Motion in Limine, as an attachment to Dr.

Simoneaux’s deposition, and in open court during the trial when counsel for Joe

attempted to introduce the report. Joe argues that the Motion in Limine was too late

to object to hearsay evidence because an objection should have been made at the

deposition where Dr. Aurich’s report was discussed. However, as counsel for Trish

points out, the parties stipulated at the deposition that “Per Article 1443(D) of the

Louisiana Code of Civil Procedure, counsel for all parties reserve all objections until

trial or other use of the deposition.” Therefore, counsel for Trish properly objected

to Dr. Aurich’s hearsay testimony in the Motion for Limine attached to the

deposition and in open court at trial. This assignment of error is without merit.

II. Naming of Trish as Domiciliary Parent.

In his second assignment of error, Joe alleges the trial court abused its

discretion in naming Trish as the domiciliary parent. Louisiana Civil Code Article

131 states, in pertinent part, that “the court shall award custody of a child in

accordance with the best interest of the child.” The best interest of the child is always

the paramount consideration in determining child custody. Boudreaux v.

Boudreaux, 95-310 (La.App. 3 Cir. 5/31/95), 657 So.2d 459, writ denied, 95-1674

(La. 10/27/95), 661 So.2d 1344. The factors used to determine the best interest of

the child in custody matters are outlined in La.Civ.Code art. 134(A). In this case,

the trial court issued lengthy written reasons for judgment going through each of the

Article 134(A) factors as it pertained to Trish and Joe. The “La.Civ.Code art. 134

factors are nonexclusive and the weight given to each factor is left up to the

discretion of the trial court. La.Civ.Code art. 134, Comment (b).” Long v. Dossett,

7 98-1160, p. 4 (La.App. 3 Cir. 4/28/99), 732 So.2d 773, 776, writ denied, 99-1377

(La. 6/4/99), 745 So.2d 13.

Joe has focused on Trish’s alleged intellectual capability as a reason the trial

court abused its discretion in naming Trish as domiciliary parent. The trial court

addressed this allegation at several places in its reasons, specifically stating it “does

not find this alleged intellectual deficiency to be concerning. Trish has demonstrated

an ability to solely care for Olivia for the majority of her life.” We note Joe

seemingly had no concerns over Trish’s intellectual capacity when he entrusted the

care of his teenage son Christian to her, nor when he was absent from Olivia’s life

for nearly the first three years of her life. The argument that Trish is not intellectually

capable of caring for Olivia is wholly without merit.

Our review of the Reasons for Ruling shows the trial court underwent a proper

analysis of the best interests of the child utilizing the Article 134(A) factors. He

discussed all fourteen of the factors listed and determined it was in the best interest

of Olivia that Trish be named domiciliary parent. We find no abuse of the trial

court’s vast discretion in making this determination.

III. Order to Refrain from Recording Communications.

The trial court in its Reasons for Ruling, decreed that the party who has

physical custody of Olivia at the time shall allow audio visual communication

(Zoom, Facetime, etc.) with the other parent. The trial court further held this period

of visitation “shall not be recorded by either parent unless permission is granted by

this court.” In his final assignment of error, Joe argues the trial court lacks the

authority to order him not to record communications between himself and Olivia or

Trish. He bases this argument on the fact that such a recording would not be

considered wiretapping as defined by statute, and thus a legal action.

As Trish notes, the courts have regularly upheld custody provisions that

prohibit otherwise legal activity, such as having overnight guests of the opposite sex,

8 drinking alcoholic beverages and/or prescription drugs while exercising custody

over the child and discussing current and pending legal proceedings in the presence

of the child. The courts of this state have consistently found the interest of the child

to be paramount over that of the parent. State ex rel. G.J.L., 00-3278 (La. 6/29/01),

791 So.2d 80; In re J.A., 99-2905 (La. 1/12/00), 752 So.2d 806. The trial court found

it was in the best interest of Olivia to restrict the recording of communications and

we will not disturb that finding herein.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed to appellant, Joseph Victor Van Brocklin Mireles.