Weaver v. Weaver

824 So. 2d 438, 2002 WL 1059028
CourtLouisiana Court of Appeal
DecidedMay 29, 2002
Docket01-1656
StatusPublished
Cited by16 cases

This text of 824 So. 2d 438 (Weaver v. Weaver) 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
Weaver v. Weaver, 824 So. 2d 438, 2002 WL 1059028 (La. Ct. App. 2002).

Opinion

824 So.2d 438 (2002)

Laura F. WEAVER
v.
Brian WEAVER.

No. 01-1656.

Court of Appeal of Louisiana, Third Circuit.

May 29, 2002.

*440 Howard C. Dejean, Opelousas, LA, for Plaintiff/Appellant Laura F. Weaver.

Joseph E. Stockwell, III, Baton Rouge, LA, for Defendant/Appellee Brian Weaver.

Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The plaintiff, Laura Fontenot Weaver, appeals the judgment of the trial court in favor of the defendant, Brian J. Weaver, naming him the domiciliary parent of their daughter, Sara Weaver. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Laura filed for divorce from Brian in October 1990, which was granted in January 1991. The judgment granted Laura physical custody of Sara, subject to reasonable visitation by Brian. In April 2000, Brian filed a rule to show cause why the custody arrangement should not be modified, urging that changes in circumstances had occurred warranting the modification. After a four day hearing, the trial court issued extensive reasons for judgment in August 2001, and judgment was rendered in September 2001. That judgment ordered that Laura and Brian have joint custody of Sara, with Brian being designated the domiciliary parent. Laura was granted visitation every other weekend, from 5:00 p.m. on Friday to 5:00 p.m. on Sunday and alternating the major holidays. She was further granted summer visitation of two weeks in June, three weeks in July, and one week in August. Thereafter, Laura appealed to this court.

ISSUES

Laura assigns as error:

1. The trial court's refusal to question Sara, as a witness, as to her reasonable preference and her knowledge of the environment in which she had been raised and to make a record of the in-camera interview that it did conduct.
2. The trial court's consideration of hearsay evidence regarding her alleged past activities, and failure to consider that, even if true, they had been discontinued under the "reformation rule" enunciated in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).
3. The trial court's change of domiciliary parent from a mother who had been the only primary care giver that Sara has ever known to a father who has exercised only weekend visitation for the last ten years and in relegating that primary care giver to a mere visitor in Sara's life without adequate reason.

*441 CHILD WITNESS

Laura urges that the trial court erred in refusing to put Sara on the stand and in failing to make a record of its in-camera inspection of her, citing Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5 Cir.), writ denied, 464 So.2d 301 (La. 1985), as the "standard for the use of testimony of children in custody cases." We first note that, "It is well settled that upon appellate review, the determination of the trial court in custody matters is given great weight and the court's determination will not be disturbed on appeal absent a showing of abuse of the court's discretion." Thibodeaux v. Thibodeaux, 00-82, p. 2 (La.App. 3 Cir. 6/1/00), 768 So.2d 85, 86, writ denied, 00-2001 (La.7/26/00), 766 So.2d 1262, quoting Williams v. Bernstine, 626 So.2d 497, 501 (La.App. 3 Cir.1993).

In Watermeier, the fifth circuit held that a trial court's in-chambers questioning of a child witness must be recorded by the court reporter. We cited this principal with approval in Dykes v. Dykes, 488 So.2d 368 (La.App. 3 Cir.), writ denied, 489 So.2d 1278 (La.1986), and Hicks v. Hicks, 98-1527 (La.App. 3 Cir. 5/19/99), 733 So.2d 1261.

We note that, in Watermeier, 462 So.2d at 1275, the court went on to state:

We do not intend or direct that the above procedure is ordained or is mandatory when there is no objection from either side regarding the examination of any child by the judge. In such case, the trial judge may examine any child or witness in chambers, on or off the record, and with or without parents and/or counsel being present—provided all agree on the procedure.

In Dykes, 488 So.2d at 371, counsel for both parties waived their presence in chambers and any objections. We stated:

Even though the presence of counsel was waived in this instance, with no record having been made of the proceeding we are without means of review of the competency of the witnesses or the reliability of any stated preferences as to custody. We agree with our brothers of the Fifth Circuit that such an interview must be conducted with a reporter present and a record made of the questioning by the court and the answers of the witnesses.

However, we went on to find that the child, who was five years old, was not capable of making a judgment regarding his best interests and welfare, and we reversed the trial court's ruling changing custody of the five-year-old boy from his mother to his father based on the record before us.

In Hicks, we again cited Watermeier with approval. In Hicks, the trial court heard testimony in chambers from the teenage daughter of the parties, with both parties' attorneys present, but did not record the testimony. Based on the failure of the trial court to apply the provisions of La.R.S. 9:361 (Post-Separation Family Violence Relief Act), we found that it committed reversible error and we conducted a de novo review of the record and rendered judgment on the merits, reversing the custody award of the trial court. Then, concerning the failure to record the in chambers testimony of the child, we stated:

Because of our decision regarding the first assignment of error, it is unnecessary for us to render a decision concerning the second assignment of error. However, we note that the law in this circuit requires that an "in chambers" interview of a child in a child custody case "must be conducted with a reporter present and a record made of the questioning by the court and the answers of the witnesses." It is not harmless error, *442 as such action by a trial court makes impossible our ability to thoroughly and properly review the record of the trial between the parties.

Hicks, 733 So.2d at 1267 (citations omitted). However, based upon a de novo review of the record that was before us, we were able to render a judgment without the transcript of the child's testimony. Additionally, two judges dissented from the majority opinion and would have affirmed the trial court's decision based on no finding of an abuse of discretion.

While we find that it was erroneous for the trial court to fail to record Sara's testimony, the record reflects that the trial court's findings were not based, in any part, on her testimony. The trial court gave extensive reasons for judgment that totaled fourteen typed legal sized pages. In reviewing all of the testimony that was presented to the trial court and its reasons for judgment, it did not consider any of Sara's testimony in making its decision. Furthermore, it was clear that the trial court stated to counsel for both parties that it would not talk with Sara at all, if counsel would not agree that a transcript of the testimony would not be made. Though both attorneys objected to this at trial, it is clear that the trial court would have made a determination with or without Sara's testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
824 So. 2d 438, 2002 WL 1059028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weaver-v-weaver-lactapp-2002.