William Wesley Gregory v. Nicole Gregory

• Court: Louisiana Court of Appeal
• Decided: March 7, 2012
• Docket: CA-0011-1263
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-1263

WILLIAM WESLEY GREGORY

VERSUS

NICOLE GREGORY

**********

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 84,992, DIV. A HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

JIMMIE C. PETERS JUDGE

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and James T. Genovese, Judges.

AFFIRMED.

Mitchel M. Evans, II 416 North Pine Street DeRidder, LA 70634 (337) 462-5225 COUNSEL FOR DEFENDANT/APPELLANT: Nicole Gregory

E. Grey Burnes Talley Post Office Box 650 Alexandria, La 71309 (318) 442-5231 COUNSEL FOR PLAINTIFF/APPELLEE: William Wesley Gregory PETERS, J.

Nicole Gregory appeals the trial court judgment awarding her and William

Wesley Gregory joint custody of their two children and naming Mr. Gregory as the

domiciliary custodial parent. For the following reasons, we affirm the trial court‟s

judgment in all respects.

DISCUSSION OF THE RECORD

The Gregorys were married in Denmark on June 14, 1994. Two children

were born of the marriage: Faith, born on September 20, 2002, and Hope, born on

December 30, 2003. On June 7, 2011, Mr. Gregory filed a petition for divorce

wherein he requested that he be designated domicilary parent in a joint custody

arrangement.1

Despite having been personally served with notice of the July 11, 2011

custody rule hearing date, Mrs. Gregory made no appearance at the hearing.2 Mr.

Gregory was the only witness who testified, and, after completion of the evidence,

the trial court entered an order of joint custody naming Mr. Gregory the domicilary

custodian and awarding Mrs. Gregory specific visitation rights.

On July 25, 2011, Mrs. Gregory‟s attorney enrolled and filed a motion

appealing the July 11, 2011 judgment. In her motion, Mrs. Gregory sought to

designate the following as the appellate record:

1) All pleadings and accompanying exhibits in the above captioned matter [the divorce and custody decree]; as well as, all pleadings and exhibits contained in Civil Docket Number: 84,836 of Division „C‟, as well as, Criminal Docket Number: 81,616; 2) The entire transcript of all Pre-Trial, as well as, all Trial Proceedings, along with all exhibits introduced in each proceeding; and, 3) All proffers of evidence introduced in each proceeding.

1 Mr. Gregory also asked for other relief that is not at issue in this appeal. 2 The hearing had been scheduled to begin at 9:00 a.m., but did not commence until 1:40 p.m. Mr. Gregory and his attorney were present in the courtroom that entire time. In granting the appeal, the trial court struck out all of the proposed designated

portions of the appellate record except “1) All pleadings and accompanying

exhibits in the above captioned matter.” In doing so, the trial court added a hand-

written note to the order, stating:

“Counsel can only designate for this appeal those parts of the record in this case, including any exhibits offered in this case. The stricken parts in the above paragraph were not ever offered into the record of this case. Counsel is seeking to introduce new evidence into the record as part of the appeal which is not permitted by law.”

In her appeal, Mrs. Gregory raises two assignments of error:

1. The Trial Court was manifestly erroneous in finding that Appellee had met his burden of proving his parental fitness as the domiciliary custodian in light of “pending” protective orders and criminal charges issued against Appellee two months prior to the custody hearing.

2. The Trial Court failed to consider the evidence and exhibits contained in Civil Docket Number 84,836, as well as, Appellee‟s arrest record, as they relate to the court‟s determination of Appellee‟s parental fitness.

OPINION

Assignment of Error Number One

In considering Mrs. Gregory‟s first assignment of error, we note the

presumption found in La.Civ.Code art. 132 that the parents shall be awarded joint

custody. This presumption is tempered by the requirement that the trial court make

an appropriate child custody determination considering the best interest of the

children. La.Civ.Code art. 131. Still, the trial court‟s determination in child

custody matters is entitled to great weight and the reviewing court will not disturb

that determination in the absence of a clear showing of abuse of discretion.

Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

The record before us that we can consider causes us to reach the conclusion

that Mrs. Gregory has not established such a clear abuse of discretion. Her

2 primary argument is that the award of custody was improper considering the fact

that Mr. Gregory faces pending charges of domestic abuse. However, this issue

was addressed at the hearing on the rule, as Mr. Gregory admitted that he had been

arrested on abuse charges and that the charges were pending. However, he denied

having committed the acts of abuse. After hearing Mr. Gregory‟s testimony

concerning the specific factual allegations of abuse, the trial court concluded that

“I‟m not convinced that it has happened that way so I‟m not making any findings

either of domestic violence which would preclude some of this that you‟re seeking

based solely on these allegations in that protective order.”

The trial court is in the best position to evaluate the testimony and credibility

of witnesses in a custody matter. Lemoine v. Lemoine, 09-861 (La.App. 3 Cir.

12/16/09), 27 So.3d 1062. Given the trial court‟s superior position, and given the

testimony present, we do not find that the trial court abused its great discretion in

making this award of joint custody and naming Mr. Gregory as domiciliary

custodian.

Assignment of Error Number Two and Mr. Gregory’s Motion to Strike

In her second assignment of error Mrs. Gregory asserts that the trial court

erred in failing to take judicial notice of Mr. Gregory‟s arrest record and the

evidence and exhibits in the Thirtieth Judicial District Civil Docket Number

84,836, wherein Mrs. Gregory had sought protection from abuse. Specifically,

Mrs. Gregory asserts that the trial court erred in failing to sua sponte take judicial

notice of these documents and asks this court to admit them into the appellate

record for our review, or to remand the custody matter for the trial court to

consider these records.

Since neither party requested that the court take judicial notice of another

proceeding, it would not be mandatory, only permissible, for the trial court to take 3 judicial notice of that proceeding under either La.Code Evid. arts. 201(C) or

202(C). Given the dubious reliability of the records Mrs. Gregory wishes to have

this court consider, which consist primarily of preliminary pleadings and procedure

in still-pending matters, we do not find that the trial court erred in not exercising its

discretion to take judicial notice thereof.

In an effort to bring the arrest record and other pending proceedings before

us, Mrs. Gregory attached the various records to her brief. In his brief Mr. Gregory

asks this court to strike those attachments, asserting that this is an attempt to

introduce new evidence on appeal. We agree. Relying on documents not

introduced into evidence in the trial court “would constitute the taking of evidence

and the exercise of original jurisdiction” beyond this court‟s authority. White v.

West Carroll Hosp., Inc., 613 So.2d 150, 154 (La.1992). Accordingly, we strike

those portions of Mrs. Gregory‟s brief and its attachments that attempt to introduce

new evidence before this court.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects.

We assess all costs of this appeal to Nicole Gregory.