Opinion
NUMBER 2012 CA 1598
2013-09-10
IN RE: THE MINOR CHILD HALEY JONES
Vincent J. Booth New Orleans, LA Counsel for Appellant Shannon Jones Michelle Mayne Davis Mark G. Duncan Mandeville, LA Counsel for Appellee Jennifer Brunelle
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket No. 2009-30388
Honorable Peter J. Garcia, Judge
Vincent J. Booth
New Orleans, LA
Counsel for
Appellant
Shannon Jones
Michelle Mayne Davis
Mark G. Duncan
Mandeville, LA
Counsel for
Appellee
Jennifer Brunelle
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
GUIDRY, J.
The father of a special needs child appeals a judgment finding it in the best interest of the child to remove him as co-tutor. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Haley Jones was born on March 20, 1997, and was later diagnosed with a condition requiring heart surgery. During the surgery performed on February 20, 1998, the physicians utilized a device that was alleged to have malfunctioned, causing Haley to sustain permanent brain damage.
Haley's parents, Shannon Jones and Jennifer Brunelle, now divorced, filed a personal injury suit individually and on behalf of Haley in Jefferson Parish in the Twenty-Fourth Judicial District Court (24th JDC). An $8.25 million settlement in their favor was eventually reached with the product liability defendants Polystan A/S, Cobe Cardiovascular, Inc., and Membrana. The settlement agreement covered the injuries sustained by Haley as well as the loss of consortium claims asserted by her parents. The settlement, however, provided a lump sum award that did not allocate the funds with respect to the parties or the separate items of damages claimed.
Since Haley resided with Ms. Brunelle, as domiciliary parent, in St. Tammany Parish, Ms. Brunelle filed a petition for tutorship in the Twenty-Second Judicial District Court (22nd JDC). In the petition, she sought to be confirmed as Haley's natural tutrix and for appointment of Mr. Jones as Haley's undertutor. By a judgment signed September 2, 2009, the 22nd JDC confirmed Ms. Brunelle and Mr. Jones as co-tutors of Haley, Thereafter, on October 7, 2009, the 22nd JDC issued a consent judgment authorizing Ms. Brunelle and Mr. Jones "to enter into a dismissal of all claims which they asserted or could have asserted against the medical product manufacturer defendants, including but not limited to Cobe Cardiovascular, Inc., Polystan A/S, Membrana and their respective insurers" and "to enter the settlement agreement memorialized in a letter agreement dated October 29, 2008, a release, and a dismissal of their claims" in the personal injury suit pending in the 24th JDC to finalize the settlement.
Following finalization of the settlement, Ms. Brunelle filed a motion in the 22nd JDC to allocate settlement funds on November 18, 2009; however, at a hearing on the motion, the court determined that "the claims asserted in Ms. Brunelle's motion arise out of and relate to the merits of the personal injury action pending in Jefferson Parish" and therefore the court held that "any claim asserted by the parents in their individual capacities for an allocation of funds as compensation for loss of consortium and other personal injuries must be heard in the 24th JDC." Additionally, in order to insure that the interests of Haley would be protected against any adverse claims asserted by the co-tutors, the court later issued an order appointing retired judge John W. Greene as undertutor for Haley. Of the $8.25 million settlement, $4,975,036.57 was then placed in the registry of the 22nd JDC to be allocated by judgment of the 24th JDC.
The remaining portion of the $8.25 million settlement, $3,274,963.43, was placed in the registry of the 24th JDC for attorney fees and costs of the personal injury proceedings in that court.
Issues remained between Mr. Jones and Ms. Brunelle regarding allocation, management, and disbursement of the settlement funds. Mr. Jones, on advice of counsel, sought authority from the 24th JDC to establish a special needs trust in Utah in which to place Haley's portion of the settlement funds. Ms. Brunelle, however, filed pleadings with the 22nd JDC to establish a Louisiana special needs trust for Haley in St. Tammany Parish, since tutorship of Haley was established in that parish. Most of the $4,975,036.57 in the registry of the 22nd JDC was ultimately transferred to the special needs trust established in St. Tammany Parish, but a portion of those funds, $610,000.00, was left in the registry of the 22nd JDC, at the request of Ms. Brunelle, for reimbursement of expenses incurred for Haley's benefit, including legal fees and costs related to the tutorship proceedings and formation of the special needs trust in St. Tammany Parish.
Ms. Brunelle then filed a motion with the 22nd JDC to be reimbursed for attorney fees expended for the tutorship proceedings and for formation of the special needs trust in St. Tammany Parish. Mr. Jones opposed the motion. Following a hearing, the 22nd JDC signed a judgment on February 7, 2011, awarding Ms. Brunelle reimbursement of her attorney fees. Mr. Jones appealed that judgment, which is also pending before this court under docket number 2012 CA 1486. Shortly thereafter, Ms. Brunelle filed another motion seeking authorization for payment from the special needs trust for future legal fees incurred on behalf of Haley. She also sought to have Mr. Jones removed as Haley's co-tutor. The court deferred ruling on the motion for future legal fees and denied the motion to remove Mr. Jones as co-tutor. Ms. Brunelle filed a motion for new trial, and at the hearing on the motion, the district court denied the motion, but then, on its own motion, moved to remove Mr. Jones as co-tutor. After an evidentiary hearing, the district court entered a judgment on May 2, 2012, that removed Mr. Jones as co-tutor. It is this judgment that is the subject of the appeal presently before us.
ASSIGNMENTS OF ERROR
In bringing this appeal, Mr. Jones raises the following assignments of error:
1. The trial court committed legal error when it failed to consider any of the factors set forth by R.S. 9:1025 when making the decision to remove Mr. Jones as co-tutor of the minor child.
2. The trial court erred in refusing to consider the underlying circumstances and context of the disputes between the co-tutors when making the decision to remove Mr. Jones as co-tutor of the minor child.
3. Even under an abuse of discretion standard, the trial court's decision to remove Mr. Jones was unsupported by the evidence and manifestly erroneous.
DISCUSSION
In his first assignment of error, Mr. Jones argues that the district court committed legal error by failing to consider La. R.S. 9:1025, relative to the removal of a curator in an interdiction proceeding, in deciding to remove his as co-tutor of Haley. We find no merit in this argument. Mr. Jones cites the principle stated in In Re Redmond, 351 So. 2d 1256, 1257 (La. App. 1st Cir. 1977), that "absent specific codal provisions to the contrary, the relationship between an interdict and his curator is the same as that between a minor and his tutor," While not disputing this principle, we nonetheless observe that the issue in the Redmond case was determining the applicable standard for removing a curator, and in absence of a specific statute governing such removal, the court relied on the standards presented in La. C.C.P. art. 4234 for removal of a tutor. At the time that Redmond was decided, La. R.S. 9:1025, which outlines a specific standard for removal of a curator in interdiction proceedings, did not yet exist, having been enacted by the Louisiana Legislature in 1993. Thus, with the existence of applicable positive law that specifies the standards and considerations for removal of a tutor, namely La. C.C.P. art. 4234, we find the district court did not err in failing to consider La. R.S. 9:1025 relative to the removal a curator. Accordingly, we reject this assignment of error.
We will consider Mr. Jones's remaining two assignments of error, alleging that the district court improperly refused to consider the underlying circumstances and context of the disputes between the co-tutors and that its decision to remove Mr. Jones was unsupported by the evidence, together.
Louisiana Code of Civil Procedure article 4234 provides, in part:
The court may remove any tutor who is or has become disqualified; is a nonresident who has not appointed, or has left the state permanently without appointing, an agent to represent him as required by Article 4273; has become incapable of discharging the duties of his office; has mismanaged the minor's property; has failedIn its reasons for judgment, the court gave the following reasons for ordering Mr. Jones removed as Haley's co-tutor:
to perform any duty imposed by law. or by order of court; or if such removal would be in the best interests of the minor
The reason I kept commenting to counsel that I did not think that the issues or the resolution of the issues in these various hearings was important is it's not as important to me as who was right or wrong, but the mere fact that you continued to fight and the way that you did without trying to resolve things that would benefit your daughter.
I understand that each party has a right to take a position that I think this is better, and the other party has a right to say, this is better, but at some point you have to put those aside if you're going to act as a co-tutor. You have to come to some agreement.
In other words, you have the right to exercise the legal right to fight, you have a right to exercise the legal right to fight, but, at some point, in order to operate as co-tutors, those things have to be put aside and you have to focus more on the co-tutorship. That's critical. It's critical in this situation.
In another statement on the stand in response to a question about the trust — I don't know what Jennifer does, I don't know what she does in this situation, I don't know what she does in that situation.
Your opposition to the attendant care costs, I can understand your position in the context of a contentious domestic matter that you would be opposed to her receiving an amount of money that you felt is inappropriate if your living standard wasn't the same or if it wasn't the same before this tragic accident with your daughter. However, it's a necessity.
I don't think that you believe that anybody could provide better care for your daughter than Jennifer could. I really don't think you believe that, and under those circumstances, she's got to have adequate money to maintain a household in order to do that both for herself and for your child. It's the mere fact of the opposition that raises concerns to me.
When Mr. Griffis testified, he was asked on cross-examination how much did the rule for attendant care cost to oppose it. His response was that's not the point; it's his lack of engagement. It took him 45 days to respond to our request. That rises to the level of behavior that's contrary to the co-tutor's position.
For that reason only, the fact that it took you that long to respond, you were not engaged in the process, you were not acting as a co-tutor. I believe that Mr. Griffis said -- and I hope I'm quoting him correctly - it's difficult to act as one unit for the benefit of Haley. He saw that problem where the two of you had the difficulty acting as one parent.
In Judge Greene's testimony -- who testified that he's seen a number of domestic cases from the bench -- he's never seen such animosity was his testimony. That's pretty strong, and that the total lack of communication between the two of you hurt the children.
I tried to give you and your attorney as much latitude as I could to go into all the machinations of these legal proceedings. I kept
saying that's not important to me. It's not as important to me as the fact that you two were not able to act as a unit as co-tutors in concert with each other for the benefit of your child. That's the most important thing, and because of that I'm going to remove you as co-tutor.
Considering the foregoing, it is. clear that the court found that it was in Haley's best interest to remote Mr. Jones as co-tutor Moreover, having fully reviewed the record in this matter, and particularly considering the testimony offered at trial, we find the evidence sufficient to support the district court's determination that it is in Haley's best interest to remove Mr. Jones as co-tutor.
Several times during his testimony, Mr. Jones stated that he acted based merely on what he thought and acknowledged that he had no true knowledge to support his belief. An example of such is illustrated by his testimony regarding his failure to consent to a proposal from Whitney Bank, the trustee of Haley's special needs trust, regarding payment for attendant care:
EXAMINATION BY MS. DAVIS [counsel for Ms. Brunelle]:
Q. Now, there was a hearing that Whitney Bank brought in these proceedings regarding attendant care payments. Do you remember that?
A. Yes.
Q. And prior to that hearing, you met with Whitney Bank and with Ed [Griffis] from Whitney Bank and Peter Russo, who was the attorney for Whitney Bank, and Jennifer regarding this issue?
A. Yes.
Q. Were they trying to ask for your concurrence with or approval of payments of attendant care prior to bringing any legal proceedings?
A. Yes.
Q. And did you tell them, that you opposed the payment of attendant care to Jennifer?
A. Yes.
Q. Why was that?
A. I don't think she needs any,
Q. What do you mean she doesn't need any?
A. That's her mother.
Q. Well, you know that Haley requires special attention, right?
A. Yes.
Q. Would you be opposed to payment of attendant care to a third party?
A. It depends on what - I don't think Haley requires the attention that Jennifer makes out that she does.
Q. How do you know that?
A. I just don't think she does.
Q. Well, when is the last time you've seen Haley?
A. It's been quite [some time], I don't know. A long time.
Q. And are you aware of Haley's needs in terms of socializing and physical needs as well as, you know, just her general needs?
A. Yes. I know that Jennifer worked though for several years after Haley's incident and it didn't seem to be a problem. I don't understand why it's all of a sudden a problem.
...
BY THE COURT:
Let me ask you a question, Mr. Jones. Do you think that there was any possibility that your ex-wife may have needed this money to adequately care for your daughter?
BY THE WITNESS
She may have needed the money, but I don't think she needed ... it to care for my daughter.
BY THE COURT:
Did you do anything to investigate that or you just had that feeling and dismissed her right to do that?
BY THE WITNESS:
Well, I know that they live in a gated community in a big fine home. I just don't think they needed $2,000 a month for Haley's attendant care. I don't know.
BY THE COURT:
What amount do you think they needed?
BY THE WITNESS:
I think that's her mother. She should care for her.
BY THE COURT:
Zero? That's your answer?
BY THE WITNESS:
That's my answer.
Mr. Griffis, trust manager for the north shore region of Whitney Bank and the trust officer responsible for administering Haley's special needs trust, testified that because Haley was in school and no longer at home all day and because of her mental state and disability, she needed someone who would be actually present to calm and care for her. Thus, it was determined that Ms. Bruneile, who had been caring for Haley for many years, would better care for Haley than anyone else. Moreover, the amount to be paid Ms. Brunelie for providing attendant care to Haley was $2,000.00 per month, which figure Mr. Griffis said was substantially less than what a third party would charge. He testified that he had found the cost for provision of attendant care by a third party to be in the range of $4,000.00 to $6,000.00 per month. Nevertheless, Mr. Jones would not readily agree with the proposal for Ms. Brunelie to provide attendant care, but instead asked for time to consider the proposal. When Mr. Griffis had not heard from him after 45 days, he realized that he would have to pursue authorization pursuant to a more costly contradictory hearing before the district court rather than simply having an ex parte hearing resulting from the consent of the co-tutors as he had hoped.
Likewise, although Mr. Jones initially opposed the establishment of tutorship in St. Tammany Parish, despite the fact that La. C.C.P. art. 4031 clearly provides for the establishment of such proceedings in that parish, he did later acquiesce to those proceedings and even joined in a consent judgment for the purpose of providing the 22nd JDC authority to receive a portion of the settlement funds. Yet, despite this fact, Mr, Jones opposed the payment of the legal fees relative to the establishment of the tutorship proceedings, as well as the legal fees related to the special needs trust established on behalf of Haley in St. Tammany Parish.
Most importantly, however, was Mr. Griffis' testimony on cross-examination regarding the relationship between the co-tutors. Mr. Griffis opined that the relationship "makes it very difficult at times to get consensus and move forward on things" and that "[t]here's always that sense that there's going to be some opposition...so there's this friction between the parties that makes it more difficult to administer as one unit for the benefit of Haley." The undertutor, Judge Greene, similarly testified that communication between the co-tutors, as Haley's parents, is in her best interest, but at the time of trial, Judge Greene stated that there was no communication, and as a result, it was hampering Haley. Thus, he opined that removing Mr. Jones as co-tutor would help facilitate the protection of Haley's money and also help facilitate Mr. Jones's reconciliation with, his children.
In addition to Haley, Mr. Jones and Ms. Brunelle also have an older daughter born of their marriage named Hannah. At the time of trial, Mr. Jones's visitation rights with both children had been suspended by ruling of another judge in custody proceedings that were litigated separately from the tutorship and personal injury proceedings.
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Considering the discretion accorded the district court's decision regarding the best interest of the child and that the determination of the child's best interest is a factual determination subject to the manifest error standard of review, we find the evidence supports the district court's determination and therefore do not find the district court's judgment to be manifestly erroneous. See Roussell v. Roussell, 96-148, p. 5 (La. App. 5th Cir. 7/30/96), 678 So. 2d 612, 614, writ denied, 96-2177 (La. 11/15/96), 682 So. 2d 765.
Moreover, we do not find that the district court failed to consider the underlying circumstances and context of the disputes between the co-tutors. Evidence regarding the same was presented at trial, and from its reasons for judgment, it is clear the district court did consider the circumstances and context of the co-tutors' disputes. Nevertheless, the court found that the circumstances and context were not sufficient to justify disregarding the more immediate needs of the child. It appears that the trial court found that Mr. Jones's objection to even reasonable expenditures of funds for the purpose of seeking the long-term preservation of the settlement funds demonstrated a failure to appreciate the effect his decisions would have on Haley's present well being. Thus, we cannot say that the district court was clearly wrong in weighing the evidence presented to find that the best interests of the child were not being served by Mr. Jones's single-minded focus on simply preserving the settlement funds in disregard of the more immediate and pressing needs of the child.
CONCLUSION
For the foregoing reasons, we find no manifest error in the district court's determination that it is in the best interest of the child to remove her father as her co-tutor. Therefore, we affirm the judgment of the district court. All costs of this appeal are cast to the father, Shannon Jones.
AFFIRMED.