Opinion
NUMBER 2013 CU 0583 C/w NUMBER 2013 CU 0584
11-20-2013
CHADRICK GALEN STARKEY v. TYRA ANN SMITH STARKEY TYRA SMITH STARKEY v. CHADRICK G. STARKEY
Charles Genco Amite, LA Counsel for Appellee Chadrick Galen Starkey Richard Ducote Pittsburgh, PA Counsel for Appellant Tyra Ann Smith Starkey
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Docket Number 2008-0001946 c/w 2012-0003581
Honorable Wayne Ray Chutz, Judge
Charles Genco
Amite, LA
Counsel for
Appellee
Chadrick Galen
Starkey
Richard Ducote
Pittsburgh, PA
Counsel for
Appellant
Tyra Ann Smith
Starkey
BEFORE: PARRO, GUIDRY, AND MCDONALD, JJ.
GUIDRY, J.
The custody decree at issue in this appeal is premised on a previous judgment that was later vacated by this court. See Starkey v. Starkey, 13-0166 (La. App. 1st Cir. 8/6/13), ___ So. 3d ___ The trial court in the matter before us found the previous judgment to be a considered decree, and in so finding, held that the parties had to prove a "change in circumstances" in order to modify the provisions of the previous custody decree. However, because the previous judgment was vacated, no deference or consideration should be given to the determinations made in that judgment. Instead, the matter of custody was required to be judged anew, as no valid, final custody decree had been rendered.
In rendering the present judgment dated May 1, 2012, the trial court ordered transcripts of proceedings that were held before other judges and considered the evidence presented therein, in addition to the testimony of the parties offered at a January 23, 2012 hearing. The transcripts ordered by the trial court are not included in the record before us, nor is it evident what transcripts were ordered and considered by the trial court in rendering the judgment before us. Thus, we cannot review the matter de novo.
In ordering the transcripts, the trial court stated the following:
Now, it is my understanding, and in looking at the procedural history of this case and it came up to a certain extent in the last hearing I had, apparently there have been at least two hearings, contested hearings perhaps more, but at least two by other judges where testimony was taken. And I am not talking about a five or ten minute hearing, but several hours as I understand it.
Procedurally, I had my secretary go check the requests that were made and a number of requests for transcripts were made and for whatever reason, it is my understanding - I don't know if one has been prepared or not, I haven't seen any transcript. What I am not inclined to do, is to have one division of this court, whether they still are presiding over this case or not, to hear some six or eight hours of testimony, another division hear six or eight or more hours of the same witness' testimony, and then me as the third division to again hear the same testimony of the same witnesses, unless the issues brought out today are something that were not brought out before and are relevant to the issues before this court.
So, what I am planning on doing is to get transcripts, if they haven't been done I am going to order they be prepared, I will tax it as cost of court and the loser or whoever the loser is, whoever is taxed for costs, will ultimately pay for it. I think that is a more efficient use of judicial time, judicial economy and everything....
Therefore, considering the time that has passed since rendition of the judgment presently on appeal before us and the possibility of changing circumstances, we vacate the May 1, 2012 judgment and remand this matter to the trial court to render a valid, final custody decree based on the court's assessment of the existing evidence in the record and any new evidence that the parties have to offer. See Lebo v. Lebo, 04-0444, pp. 4-5 (La. App. 1st Cir. 6/25/04), 886 So. 2d 491, 493-94; Tankerslev v. Kozielski, 10-540, p. 4 (La. App. 3d Cir. 11/3/10), 50 So. 3d 962, 964; Rutledae v. Rutledge, 41,792, p. 16 (La. App. 2d Cir. 12/13/06), 945 So. 2d 307, 316.
VACATED AND REMANDED.