Willis v. Demelo

182 So. 3d 57, 14 La.App. 5 Cir. 427, 2014 La. App. LEXIS 2477, 2014 WL 11034407
CourtLouisiana Court of Appeal
DecidedOctober 15, 2014
DocketNo. 14-CA-427
StatusPublished
Cited by2 cases

This text of 182 So. 3d 57 (Willis v. Demelo) 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
Willis v. Demelo, 182 So. 3d 57, 14 La.App. 5 Cir. 427, 2014 La. App. LEXIS 2477, 2014 WL 11034407 (La. Ct. App. 2014).

Opinion

ROBERT M. MURPHY, Judge.

|gIn this child custody dispute involving a five-year-old boy and an eight-year-old girl, born to unwed parties, the father, appellant William DeMelo,1 appeals the January 17, 2014 trial court judgment in favor of the mother, appellee Heather Willis (now Heather Horton), which modified the parties’ January 9, 2012 consent judgment on custody and visitation. Appellant contends that the trial court’s admission of hearsay testimony violated a pretrial, stipulation of the parties and that appellee failed to meet the burden of proof to modify custody. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 11, 2011, appellee filed a Petition for Joint Custody. On November 17, 2011, the parties executed a “Joint Custody Visitation Schedule” in which appellant was designated as domiciliary parent of the son, and appellee was designated as domiciliary parent of the daughter. The trial'court signed the |sConsent Judgment on January 9, 2012. On June 19, 2013, the mother filed a Rule to Modify Custody seeking sole custody of both children, to limit appellant’s visitation, and to obtain child support. She based her custody argument on domestic disputes between appellant and his new wife, Rebecca De-Melo.

[59]*59At the December 19,-2013 hearing on custody rule, the parties entered a stipulation with appellant pro se and appellee represented by counsel. The parties agreed that the police reports would be admitted into evidence and that appellant’s current wife would not be called as.a witness:

THE COURT: All right. So for the record, y’all are going to stipulate — what is the stipulation, Ms. Turnage? .
MS. TURNAGE: I had issued a subpoena duces tecum, Your Honor, to Livingston Parish Sheriffs Office requesting any police reports issued in connection with a William DeMelo or any reports generated as result of calls coming out of the home of William DeMelo. I received a response from Eric Pittman. That response contains police reports. I believe there are five in here. And the stipulation would be that if police officers who prepared the reports were called to testify, that they would testify in accordance with the report [sic],
THE COURT: And the agreement between the two of you is, even though that that might possibly be hearsay, Mr. DeMelo will not object to those being admitted and, in return, you will not call his wife as a witness; is that correct?
MS. TURNAGE: That’s correct. Your Honor.
THE' COURT: All right. It that your stipulation, Mr. DeMelo?
WILLIAM DeMELO: Yes, Your Hon- or. (Emphasis added).

The trial court heard testimony of the parties and appellee’s new husband, John Horton. Appellees’ testimony included hearsay, specifically things she was told by appellant’s wife. In its judgment and assigned reasons of January 17, 2014, the trial court named appellee the domiciliary parent for both children, limited appellant’s- custodial access, ordered appellant to be evaluated and to comply with Ranger management recommendation, and ordered that he pay appellee $1,153.68 in monthly child support. The trial court indicated that:

Evidence consisted of testimony from both parties, police reports, medical and school records, and a worksheet on child support. The evidence clearly demonstrates that -since the consent judgment, the defendant has exhibited some concerning behaviors. - Numerous police complaints ;of domestic violence, text messages indicating a possible suicide, and the almost routine tardiness for school are disturbing.

Appellant’s appeal was granted on March 6,2014. ..

STANDARD OP REVIEW

The appellate, court must consider whether the particular evidentiary ruling complained of was erroneous, and if so, whether the error prejudiced the complainant’s case, with - reversal warranted only if the error prejudiced the complainant’s case. Crisler v. Paige One, Inc., 42,563 (La.App. 2 Cir. 1/9/08), 974 So.2d 125. A child custody matter must be viewed within the context of its own particular set of facts, and a trial court’s determination in such matters is entitled'to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Silbernagel v. Silbernagel, 06-879 (La.App. 5 Cir. 4/11/07), 958 So.2d 13.

ASSIGNMENTS OF ERROR

■ In his first assignment of error, appellant contends that the trial court committed legal error in vitiating and/or materially altering during trial the parties’ pretrial evidentiary stipulation by allowing unsubstantiated hearsay evidence (the police incident reports) and testimony (via plaintiff-[60]*60appellee) to be, introduced into evidence, thereby depriving appellant of his constitutional right to confront/crossexamine witness testimony and evidence offered against him.-

In his second assignment of error, appellant contends the trial court violated the Code of Judicial Conduct and committed legal error, whether deliberately -or |snot, in failing to remain impartial/neutral as referee of the trial proceeding,- to the prejudice of appellant, who was representing himself when the trial court vitiated and/or materially altered during trial the pretrial evidentiary stipulation of the parties.

In his third assignment of error, appellant contends that the trial court committed legal error and/or abused its discretion in its specific rulings as to custody and child support, given the evidence, or lack thereof, the testimony, and the history of the parties' custodial arrangement for their children, ie., dbes the trial court’s relianee on the factors cited constitute an abuse of discretion, and did plaintiff fail to meet her burden of proof of modification?

LAW AND DISCUSSION

- In assignment of error number one, appellant contends that the trial court vitiated the parties’ stipulation by allowing testimony from appellee regarding things she had been told by appellant’s current wife. He contends this violated the “essence” of the stipulation to exclude testimony, live or via a third person, of appellant’s current wife by permitting the introduction of the police reports.

Appellee contends that the trial court did not commit legal error and did not alter the stipulation of the parties by allowing unauthenticated hearsay evidence and testimony to be introduced into evidence.

Upon review, we find that the trial court ■ did not vitiate the stipulation of the parties. On review of the parties’ stipulation, we find that the trial court did not err. The parties’ restriction .not to call a witness clearly identified appellant’s new wife. Additionally, while appellant initially objected to hearsay, he withdrew 'his objection on the-record!

WILLIAM DeMELO: Your Honor, I object. The agreement was that my wife' wouldn’t testify if they were- allowed to give police'reports.
| fiTHE COURT: Right.
WILLIAM DeMELO: Now statements are being made by my wife and the police reports are already part of evidence to the Court. And—
THE COURT: Right. But your wife is not going to be called as a witness.
WILLIAM DeMELO: I .understand.

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Cite This Page — Counsel Stack

Bluebook (online)
182 So. 3d 57, 14 La.App. 5 Cir. 427, 2014 La. App. LEXIS 2477, 2014 WL 11034407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-demelo-lactapp-2014.