Opinion
NUMBER 2012 CU 1551
07-17-2013
MARIBETH IVY MARQUEZ MARR v. JESSIE LEE DELOVINO MARR
Bruce A. Craft Baton Rouge, LA Counsel for Plaintiff/Appellant Maribeth Ivy Marquez Marr Maria A. Finley Baton Rouge, LA Counsel for De fendant/Appellee Jessie Lee Delovino Marr
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Family Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number 170, 185
Honorable Lisa Woodruff-White, Judge
Bruce A. Craft
Baton Rouge, LA
Counsel for
Plaintiff/Appellant
Maribeth Ivy Marquez
Marr
Maria A. Finley
Baton Rouge, LA
Counsel for
De fendant/Appellee
Jessie Lee Delovino
Marr
BEFORE: GUÏDRY, GRAIN, AND THERIOT, JJ.
GUIDRY , J.
A mother appeals the Family Court's designation of the father as domiciliary parent in its judgment modifying custody to grant the parties joint custody of their minor children. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
By a judgment issued October 1, 2008, in the Family Court of the First Circuit of Hawaii, the parties, Maribeth Ivy Márquez Marr (hereinafter referred to by her maiden name, "Ms. Smith") and Jessie Lee Delovino Marr ("Mr. Marr") were divorced. Along with the divorce decree, the Hawaiian court also issued a child custody decree wherein it awarded sole custody of the parties' two minor sons, born July 31, 2006 and June 27, 2007, to Mr. Marr and reasonable visitation to Ms. Smith.
Sometime thereafter, Mr. Marr relocated with the minor children to East Baton Rouge Parish, and Ms. Smith filed a petition to have the Hawaiian judgment made executory in the Family Court of East Baton Rouge. The Family Court signed an order making the judgment executory on June 30, 2009. On June 12, 2010, Ms. Smith, as a resident of Florida, filed a rule for change of custody and other relief. In the rule, Ms. Smith alleged that the Mr. Marr prevented her from exercising the visitation rights awarded to her in the Hawaiian decree. Moreover, she alleged that Mr. Marr had demonstrated an anger management problem and other tendencies that warranted a change in custody. She therefore requested sole custody of the minor children with Mr. Marr being granted supervised visitation based on the allegations presented in her petition.
The trial court rendered several interim judgments granting Ms. Smith specific times of physical and telephone visitation with the children pending the hearing on her rule for change of custody. The trial court also appointed a Dr. Alicia Pellegrin, a clinical psychologist, to evaluate the parties and their children in regard to the custody matter. Pursuant to her appointment, Dr. Pellegrin evaluated the parties and their children and issued a report making several recommendations, including: (1) Ms. Smith should have domiciliary custody of the children and they should reside with her in Florida; (2) Mr. Marr should see Carlo Cuneo in Baton Rouge for individual treatment/parent coaching to learn about child development, discipline, and behavior management; and (3) the parties should acquire the computer program "Our Family Wizard," which is designed to help divorced parents share information and to be the official means to demonstrate that a matter has been discussed.
Following the rendition of Dr. Pellegrin's report, Ms. Smith amended her rule for change of custody to seek a contempt ruling against Mr. Marr for violating the various interim judgments that had previously been issued by the trial court and to request that the recommendations presented in Dr. Pellegrin's report be implemented on an interim basis pending the custody hearing. An initial hearing was held on November 29-30, 2011, to consider the issues of contempt, assessment of the costs associated with Dr. Pellegrin's evaluation and testimony in the proceedings, and adoption of Dr. Pellegrin's recommendations on an interim basis pending trial.
By a judgment signed on December 6, 2011, the trial court found Mr. Man-in contempt for violating the various interim judgments issued and ordered him to serve twenty hours of community service and to pay the court costs and attorney fees incuned by Ms. Smith related to the contempt ruling. The trial court further ordered the parties to each pay one-half of the costs associated with Dr. Pellegrin's evaluation and trial testimony. The trial court also adopted the recommendation made by Dr. Pellegrin in part to order Mr. Marr to receive counseling from Carlo Cuneo and to order the parties to use the "Our Family Wizard" computer program. The trial court did not adopt Dr. Pellegrin's recommendation to transfer domiciliary custody to Ms. Smith on an interim basis pending trial, but reserved to the parties the right "to litigate the custody issue at the time of trial."
A final hearing was held on Ms. Smith's rule for change of custody on April 17, 2012, at which time the parties were allowed to "incorporate, introduce or rely on" the evidence presented during the November 2011 hearing, and counsel for Ms. Smith formally moved to introduce the entirety of the testimony, evidence and judgment related to the November 2011 hearing into the record. After hearing additional testimony, the trial court took the matter under advisement and later rendered judgment to award the parties joint custody of the children with Mr. Marr being designated the domiciliary parent. It is from this judgment that Ms. Smith appeals.
DISCUSSION
In her sole assignment of error, Ms. Smith contends that the trial court erred in granting domiciliary status to Mr. Marr and argues that "the evidence and testimony in the Record wholly supports a designation of her as the primary domiciliary parent." We disagree.
The determination of the trial court in child custody matters is entitled to great weight, and its discretion will not be disturbed on review in the absence of a clear showing of abuse. Chauvin v. Chauvin, 10-1055, p. 4 (La. App. 1st Cir. 10/29/10), 49 So. 3d 565, 569. The best interests of the child are of the utmost importance in child custody proceedings. La. C.C. art. 131. Pursuant to La. C.C. art. 134, in considering the child's best interests, the court may consider the following factors:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
In awarding joint custody to the parties and designating Mr. Marr the domiciliary parent, the trial court discussed the Article 134 factors. The court found factors one, two and six through nine to either favor both parties or not to be significant under the facts presented; however, the trial court found that factor three favored Mr. Marr and observed, "I don't doubt based on the evidence that Ms. [Smith] would provide those things for the children, but note that independent of the person that she's living with at this time, I don't find at this time that she has the independent ability to provide those things for the children." The court likewise found factors eleven and twelve to weigh in favor of Mr. Marr. In particular, the court found in regard to factor eleven that it was Ms. Smith's "decision to locate so far from her children." Most significantly, however, is factor ten, which the trial court found to be of particular concern, observing that:
[B]oth parties in this case are [a] little bit - they look through cloudy lenses in terms of the reality and the best interest of these boys. [Ms. Smith] in terms of the reality Mr. Marr has been the primary caretaker for the boys and this is the home that they have known since they - the environment, and where they have been since the decree - since the Hawaii decree was rendered. And Mr Marr that same sense, but in whatever feeling he does seem to have with regard to - you know [Ms. Smith's] actions back then that led to that [decree being] an issue, and that is unfortunate on both parties['] part and I think that has contributed to their unfortunate poor relation. So this court ... last year put [something] in place to try to address those issues and the parties['] testimony was quite different, with regard to this particular area...communication, and interaction and the way things went. I actually found Mr. Marr's testimony to be more credible than Ms. [Smith's] in terms of how things have been going in that regard.... I found the testimony of [Ms. Smith] on direct to be less than truthful especially with regard to the lack of communication by Mr. Marr as was [exposed] on cross-examination. ... So anyway while I did find -- there are still issues with communication. I find communication has improved with and without the family wizard system.
Despite these findings by the trial court, Ms. Smith relies heavily on the assessment made by Dr. Pellegrin and her recommendation that Ms. Smith be designated domiciliary parent to support her contention that she should be designated domiciliary parent rather than Mr. Marr.
In considering expert testimony, the trial court may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Rao v. Rao, 05-0059, p. 14 (La. App. 1st Cir. 11/4/05), 927 So. 2d 356, 365, writ denied, 05-2453 (La. 3/24/06), 925 So. 2d 1232. The trier of fact may accept or reject any expert's view, even to the point of substituting its own common sense and judgment for that of an expert witness where, in the fact-finder's opinion, such substitution appears warranted by the evidence as a whole. Green v. K-Mart Corporation, 03-2495, p. 5 (La. 5/25/04), 874 So. 2d 838, 843; Barber Brothers Contracting Company v. Cuccia, 98-0675, p. 8 (La. App. 1st Cir, 4/1/99), 734 So. 2d 820, 824, writ denied, 99-1258 (La. 6/18/99), 745 So. 2d 31. The decision reached by the trial court regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its broad discretion. Morgan v. State Farm Fire and Casualty Company, Inc., 07-0334, p. 9 (La. App. 1st Cir. 11/2/07), 978 So. 2d 941, 946.
In its reasons for judgment, the trial court expressly noted that it found Dr. Pellegrin's report to be of "great value," but nevertheless asserted that the court still "must independently decide what weight to give this evidence as well as all evidence that is presented in this matter." Moreover, Dr. Pellegrin stated during the November 2011 hearing that the primary reason she recommended that Ms. Smith be granted domiciliary status is because she believed Ms. Smith had better parenting skills and because feelings Mr. Marr harbored towards Ms. Smith obstructed his ability to facilitate and encourage a close and continuing relationship between Ms. Smith and the children.
Following the November 2011 hearing, the trial court expressly ordered Mr. Marr to implement several of the recommendations made by Dr. Pellegrin that addressed these concerns, including receiving counseling from Carlo Cuneo to improve his parenting skills and relationship with Ms. Smith and acquiring the "Family Wizard" to facilitate communication between him and Ms. Smith. At the April 2012 trial, Mr. Marr testified and presented evidence proving that he had complied with all of the orders issued by the trial court, including those orders based on the recommendations of Dr. Pellegrin. As a result, the trial court observed that communication had improved between the parties, despite Ms. Smith's allegations to the contrary.
Following the April 2012 trial, the court ordered Mr. Marr "to continue to see Mr. Cuneo until he is released from his work with Mr. Cuneo." In a two-page report issued by Mr. Cuneo, the psychotherapist opined that Mr. Marr had willingly participated in counseling and that he found that Mr. Marr had "made progress" in learning how to manage the behavior of his sons and in improving the quality of his communications with Ms. Smith.
Notably, on cross examination during the April 2012 trial, the evidence showed that although Ms. Smith logged into the "Family Wizard" program over 200 times, she only sent 20 emails to Mr. Marr through the program, and Mr. Marr sent her 13 messages using the program. Mr. Marr further testified that there was a period of time that he was unable to access the program because he was having problems with his computer, and Ms. Smith admitted that Mr. Marr had informed her of that fact. Likewise, Ms. Smith was questioned regarding the approximately 56 journal entries she had made using the "Family Wizard." She was specifically questioned regarding the fact that there was no reference in any of the entries to her not being able to exercise telephone visitation with her sons; however, in quite a few of the entries she specifically noted having had telephone visitation with her sons.
Additionally, at trial, Ms. Smith acknowledged that she was not employed and did not pay child support for the children. She testified that she gave the boys gifts and stated that the expense of traveling between Florida and Louisiana to exercise physical visitation impacted her ability to pay child support to Mr. Marr. Yet, she also acknowledged that she chose to live in Florida, rather than move closer, because she had an aunt who lived there, and her parents, who live in Cuba, would come to Florida when she had the children because they also owned a house in that state.
Based on our review of the record before us and considering the best interest of the children, we find that the trial court did not abuse its discretion in granting domiciliary custody of the minor children to Mr. Marr. The evidence clearly supports the trial court's finding that Mr. Marr is better able to provide for the children and has been the primary caregiver for the boys for most of their lives. Moreover, Mr. Marr's compliance with the trial court's December 6, 2011 judgment and his efforts to improve communications between himself and Ms. Smith amply demonstrate Mr. Marr's willingness to facilitate and encourage the children's relationship with their mother.
CONCLUSION
Therefore, for the foregoing reasons, we affirm the custody decree of the trial court granting the parties joint custody of the children with Mr. Marr being designated the domiciliary- parent. All costs of this appeal are cast to the appellant, Ms. Maribeth Ivy Marquez Smith.
AFFIRMED.