Opinion
NO. 2014-CA-0064
07-02-2014
GEORGE M. FRIERSON v. HEIDI S. FRIERSON
Robert Charles Lowe David M. Prados LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P. COUNSEL FOR PLAINTIFF/APPELLEE Leslie A. Bonin COUNSEL FOR DEFENDANT/APPELLANT
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2003-11248, DIVISION "K"
Honorable Bernadette D'Souza, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Chief Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr., Judge Paul A. Bonin)
BONIN, J., CONCURS WITH ADDITIONAL REASONS
Robert Charles Lowe
David M. Prados
LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P.
COUNSEL FOR PLAINTIFF/APPELLEE Leslie A. Bonin
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
This matter involves a child custody dispute between the mother, Heidi Sinclair Frierson (Dr. Sinclair), and the father, George M. Frierson (Mr. Frierson), regarding their minor son, BF. Dr. Sinclair appeals the trial court's judgment that denied Dr. Sinclair's various Rules and Motions that requested domiciliary custody and for BF to attend school in the New Orleans area. Finding no abuse of the trial court's discretion, we affirm the judgment.
The Rules and Motions included: January 13, 2010- Rule To Modify Custody; January 19, 2012- Motion For Authorization To Obtain Therapy for the Minor Child And To Enroll Child In A New Orleans School; August 1, 2012- Request for Expedited Hearing On/And Motion To Reset Rule to Modify Custody; Amended Rule to Modify Custody; Motion For Authorization To Obtain Therapy For The Minor Child And To Enroll Child In A New Orleans School; March 7, 2013- Second Amended Motion For Authorization To Enroll Child In A New Orleans School and Third Amended Rule To Modify Custody.
FACTS AND PROCEDURAL HISTORY
Dr. Sinclair and Mr. Frierson were married on December 23, 1998 and lived in Orleans Parish. Their son, BF, was born on March 21, 2000 in Orleans Parish. They separated in October 2002 and divorced on September 2, 2003. Their judgment of divorce incorporated a "Parenting Agreement" that effectively gave both parties joint domiciliary and legal custody of their son. The Agreement provided in part that:
We have been sharing time equally with BF and will continue to do so. We will have equal joint responsibility for BF's care and upbringing and equal authority concerning all decisions that affect BF's general health, education and welfare.
Following Hurricane Katrina in August 2005, the parties and their son relocated to East Baton Rouge Parish. Dr. Sinclair and Mr. Frierson each purchased a home and obtained employment in the Baton Rouge area. For the most part, BF lived equally with both parents. They enrolled BF in private schools in the Baton Rouge area.
In September 2009, Dr. Sinclair left her job in Baton Rouge and took a position at a medical facility in the New Orleans area. Thereafter, in January 2010, Dr. Sinclair filed a Rule to Modify Custody, requesting that she be designated the domiciliary parent and for BF to reside and attend school in New Orleans.
Following a pre-trial conference on July 28, 2010, the trial court granted Dr. Sinclair's oral motion to dismiss her Rule to Modify Custody as it pertained to BF's school location, without prejudice. The remaining issues raised in the Rule were continued. The trial court also ordered that BF remain in the Baton Rouge school in which he was enrolled for the 2010-2011 school year. BF's custody would continue as per the parties' Parenting Agreement, pending determination of Dr. Sinclair's Rule To Modify Custody.
The trial court judge of record at this time was the Honorable Paula Brown.
In October 2010, Dr. Alan Taylor, a clinical psychologist, was appointed to do a custody evaluation. Based in part on Dr. Taylor's recommendation, BF continued at the same Baton Rouge school for the 2011/2012 school year. However, BF would have to change schools for the upcoming 2012/2013 school year because his school did not have a sixth grade.
The parties were unable to agree to the school that BF should attend school for the 2012/2013 school year. Accordingly, on January 19, 2012, Dr. Sinclair filed a "Motion For Authorization To Obtain Therapy For The Minor Child And To Enroll Child In A New Orleans School With Incorporated Memorandum," contending that BF's alleged preference to attend school in New Orleans amounted to a material change in circumstances that altered the tenets of the Parenting Agreement. Mr. Frierson's opposition memorandum asserted that if any therapy was required, it should be in Baton Rouge and that the child's alleged desire to attend school in New Orleans was not a material change in circumstances that would supersede the custodial arrangements the parties had agreed to in the Parenting Agreement.
On February 16, 2012, the parties consented for Dr. Taylor to conduct an updated evaluation. Dr. Taylor's updated report stated that BF had expressed a desire to be in New Orleans and have the city as his home base for the upcoming school year.
Thereafter, in April 2012, the parties entered a consent agreement for the trial court to appoint an independent evaluator to assess BF's ability to meet with the court, his capacity to state a preference as to where he wanted to reside, and the basis and details concerning that preference. Ultimately, the trial court appointed Dr. Brian Jordan. After his appointment, Dr. Sinclair then filed a motion to object. The motion argued that Dr. Taylor's report was sufficient for the court to make a determination regarding the minor's competency to testify. The trial court denied the motion and reiterated its ruling that Dr. Jordan do a single evaluation of BF in order for the court to assess BF's competency to testify.
The Honorable Bernadette G. D'Souza was now the trial court judge.
Dr. Jordan's report included his opinion as to custody and where BF should attend school. In response, Dr. Sinclair filed a "Motion for Expedited Hearing on/and Motion to Disqualify Dr. Brian Jordan and to Strike Dr. Brian Jordan's July 5, 2012 Report." She averred that Dr. Jordan's opinions on custody and school location exceeded the scope of his appointment.
Mr. Frierson opposed the motion to strike/disqualify Dr. Jordan. Thereafter, on July 16, 2012, he also formally filed "Exceptions of No Cause of Action and Prematurity to Heidi S. Frierson's Motion for Authorization to Obtain Therapy for the Minor Child and to Enroll Child in a New Orleans School, With Incorporated Memorandum With Order." The exceptions essentially took the position that Dr. Sinclair's request to have BF enrolled in a New Orleans school amounted to a request for change in custody and that it also violated the Parenting Agreement. The trial court granted the exceptions on July 30, 2012. The trial court determined that "the rule for custody should have been filed instead of a rule to change schools as a change of circumstances--- a reason for a change in circumstances."
As a result of this ruling, on August 1, 2012, Dr. Sinclair filed a "Request for Expedited Hearing on/and Motion to Reset Rule to Modify Custody; Amended Rule to Modify Custody; Motion for Authorization to Obtain Therapy for the Minor Child and to Enroll Child in A New Orleans School and Motion to Disqualify Dr. Brian Jordan and to Strike Dr. Brian Jordan's July 5, 2012 Report with Incorporated Memorandum." Additionally, on August 6, 2012, Dr. Sinclair filed a writ application to review the judgment that granted Mr. Frierson's exceptions of no cause of action and prematurity. However, we declined to exercise our supervisory jurisdiction as a copy of the trial court's written judgment was not attached to the writ application.
Frierson v. Frierson, 2012-1172 (La. App. 4 Cir. 8/7/12), unpub.
After the trial court signed the judgment granting the exceptions, Dr. Sinclair again sought review before this Court. On August 10, 2012, we granted Dr. Sinclair's writ application in part and remanded the matter back to the trial court. In granting the writ in part and remanding, this Court stated:
Frierson v. Frierson, 2012-1185 (La. App. 4 Cir. 8/10/12), unpub.
We read the "Motion for Authorization to Obtain Therapy for the Minor Child and to Enroll the Child in a New Orleans School" filed on 19 January 2012 by the relator as merely an amendment to the 13 January 2010 rule, thereby formally bringing the issue of the school that the child would attend clearly before the Court.The remand was then ordered to allow "for further proceedings on the 13 January 2010 rule and 19 January 2012 'motion' either together or separately as the needs of the case may warrant in order to determine the best interest of the minor child."
At the hearing held on August 13, 2012, Mr. Frierson maintained that Dr. Sinclair's recent amended pleadings also did not state a cause of action. The trial court agreed. It granted Mr. Frierson's second exception of no cause of action, concluding that Dr. Sinclair's amended pleadings did not really state a material change of circumstances. The trial court also expressed that it wanted BF to attend school in Baton Rouge.
The record indicates that Judge D'Souza contacted the Fourth Circuit's Clerk of Court to seek clarification as to whether this Court's August 10, 2012 decision that remanded and granted Dr. Sinclair's writ in part encompassed only the exception of prematurity and not the exception of no cause of action. However, this Court declined to offer a further explanation of its ruling. Judge D'Souza then issued the judgment granting the second exception of no cause of action.
On August 15, 2012, Mr. Frierson filed a "Petition for Ex Parte Temporary Legal and Physical Custody." The petition complained that Dr. Sinclair would not allow BF to attend his Baton Rouge school; as such, her actions constituted contempt and caused irreparable harm, primarily because BF was not in attendance at any school. After hearing argument, the trial court granted the petition. The trial court also temporarily reduced Dr. Sinclair's custody to forty-eight hours of visitation over a fifteen-day period and ordered Dr. Sinclair to appear for a show cause hearing on September 11, 2012 to consider permanent custody.
La. C.C.P. art. 3945(C)(2) provides in part that an ex parte order of temporary custody shall provide specific provisions for temporary visitation by the adverse party of not less than forty-eight hours during any fifteen-day period.
Dr. Sinclair sought emergency review of both the judgment that granted the second exception of no cause of action and the August 15, 2012 ex parte judgment on custody. We granted the writ. The decision noted that the effect of our judgment of August 10, 2012 was to vacate in its entirety the trial court's previous ruling of August 7, 2012 in which it had granted Mr. Frierson's exceptions of prematurity and no cause of action. Therefore, when the trial court granted Mr. Frierson's second exception of no cause of action, and subsequently granted him temporary custody, it contravened our August 10, 2012 judgment. Accordingly, we again ordered the trial court to conduct an evidentiary hearing to determine the school in which BF should be enrolled as part of the upcoming September 11, 2012 hearing on custody.
Frierson v. Frierson, 2012-1275 (La. App. 4 Cir. 9/17/12), unpub.
However, Dr. Sinclair elected not to proceed with the evidentiary hearing on schooling and custody; instead, Dr. Sinclair filed a motion to recuse the trial judge. The motion contended that Judge D'Souza had demonstrated bias in favor of Mr. Frierson. In support, it cited that the judge had refused to conduct an evidentiary hearing after being ordered to do so by the Fourth Circuit.
The trial judge assigned to hear the recusal motion denied the motion; the judge opined that pursuant to La. C.C.P. art. 151, Judge D'Souza had not formed an opinion. Dr. Sinclair applied for supervisory writs. This Court denied the writ, finding that the trial court's judgment was not clearly wrong or manifestly erroneous.
Frierson v. Frierson, 2012-1387 (La. App. 4 Cir. 10/22/12), unpub.
While the various pleadings and writ applications were pending, BF remained enrolled in his Baton Rouge School for the 2012-2013 school year. Later, in November 2012, Dr. Sinclair filed an amended motion for authorization to enroll BF in a New Orleans school and a second amended rule to modify custody. This second amended rule requested authority to enroll BF in a New Orleans school at any time.
In January 2013, the trial court heard argument on Dr. Sinclair's motion to disqualify Dr. Jordan and to strike his report. Dr. Sinclair re-urged that Dr. Jordan's report had exceeded the authority provided to him by the trial court. The trial court granted the motion. Mr. Frierson sought supervisory writ review of the judgment. This Court denied the writ application.
Frierson v. Frierson, 2013-0308 (La. App. 4 Cir. 3/28/13), unpub.
The evidentiary hearing on the custody and schooling issues took place over five days, February 21, 2013; April 2, 2013; May 28, 2013; May 29, 2013; and July 12, 2013. At the February 21, 2013 hearing, the trial court conducted a Watermeir examination of BF. When asked why he was there, BF said "[b]ecause my parents want to know if I'm going to New Orleans or Baton Rouge for school." BF stated that he thought he wanted to go to New Orleans for school because it seems like a better place and that he did not really like his new Baton Rouge school that much. He indicated that there was some bullying from some "mean" kids at the school who liked to push BF and his friends around. He described the bullying as "pushing and calling me names and stuff." BF said that the bullying happened for about one and a half quarters; that it had gotten better; and that the problem was being addressed. BF stated that he learned from a Dr. McCain that he had dysgraphia, which he described as a "learning difference where you can't write as fast or write as well." However, notwithstanding the bullying and the learning difference, he acknowledged that he was doing "good" at that school; that he received A's and B's, although he struggled in English, his favorite subject; that he had access to computers and tutors; and that he had made four really good friends at the school. He added that he thought it would be more fun to live in New Orleans because there are more things to do in New Orleans, like festivals and Mardi Gras.
In Watermeir v. Watermeir, 462 So.2d 1272 (La. App. 5 Cir. 1985), the Fifth Circuit decided that a proper procedure for the handling of a child's testimony in a domestic case was for the court to interview the child in chambers within the presence of a court reporter and the parents' attorneys to make a record, but not for the parents to attend. The court would first interview the child to determine his/her competency; and if found competent, it would further interview the child before counsel.
Dr. Alyson McCain, a psycho-education evaluator, saw BF in 2009 and 2012. She diagnosed BF with dysgraphia. In general, dysgraphia was described as a processing disorder that affects fine motor skills, such as handwriting. The disorder causes difficulty with processing the speed of getting information from the brain to produce it to writing.
Thereafter, Dr. Sinclair and Mr. Frierson testified. Each testified as to their relationship with their son, BF's experiences at their respective homes, his friendships, and his school experiences. Mr. Frierson said it was in BF's best interest for the parents to continue shared custody. He stressed that he did not want to become a week-end dad, the result he feared in the event BF was allowed to live with his mother and attend school in New Orleans. Mr. Frierson noted that BF had lived in the Baton Rouge area since he was five-years old and that he had a stable support system there, including Dr. Sinclair's parents. He also relayed concerns about the type of child care arrangements Dr. Sinclair would make if she obtained domiciliary custody because Dr. Sinclair worked nights about ten days per month. Mr. Frierson suggested that Dr. Sinclair had unduly influenced BF's desire to attend school in New Orleans.
Dr. Sinclair countered that Mr. Frierson always knew a return to New Orleans was a possibility; and that in the event Mr. Frierson wanted to retain 50-50 domiciliary custody, he could purchase a home in New Orleans, just as Dr. Sinclair had retained her Baton Rouge residence. Dr. Sinclair stated that she thought it was in BF's best interest to move and attend school in New Orleans because it was his preference; that BF liked the sense of community; and that the City provided him with more opportunity to interact with different kinds of people from different backgrounds. Dr. Sinclair also testified that BF had been bullied at the Baton Rouge School and that she feared for his safety. Mr. Frierson objected that this testimony went beyond the scope of the allegations contained in Dr. Sinclair's pleadings. The trial court sustained Mr. Frierson's objections.
Throughout these proceedings, the parents exercised their shared physical custody of BF by having BF alternate weeks at Mr. Frierson's home in Prairieville and Dr. Sinclair's Baton Rouge residence.
In response to the objection that the bullying allegations were not a part of the pleadings presently before the trial court, on March 18, 2013, Dr. Sinclair filed a "Motion For Leave to File Second Amended Motion for Authorization to Obtain Therapy for the Minor Child and to Enroll Child in New Orleans School and Third Amended Rule to Modify Custody" that addressed the bullying issues. The motion came for hearing on April 2, 2013. The trial court denied the motion. It noted due process concerns, emphasizing that the specific bullying issues should have been raised in pleadings prior to trial, rather than in the midst of trial. However, the trial court did allow Dr. Sinclair to proffer testimony.
Dr. Sinclair again sought emergency review; and this Court granted the writ. The decision declared that the paramount concern in any child custody case is the best interest of the child and that all relevant issues must be considered to make that determination. The decision also explained that both parties were aware of the issues surrounding custody and BF's schooling when the proceedings were first initiated and that BF's emotional well-being would be addressed as part of the proceedings.
Frierson v. Frierson, 2013-0510 (La. App. 4 Cir. 5/13/13), unpub.
Dr. Sinclair's and Mr. Frierson's testimony established that BF discussed the bullying situation with a school counselor and that they met with this counselor. The counselor advised that the school would have a workshop on bullying and that the teachers would be instructed to keep any eye out for BF. The counselor stated that the school was limited in any additional response unless BF identified the bullies, which he had not done.
Over the course of the hearing dates, the trial court also heard testimony from Dr. Taylor and Dr. Jordan. Dr. Taylor reiterated that BF had more of an affiliation with his mother, wanted to attend school in New Orleans and considered New Orleans as his "home base." He verified that he had been provided with a copy of Dr. McCain's psycho-educational report on BF. Dr. Taylor acknowledged that BF had concerns as to what would happen to his relationship with his dad if he moved to New Orleans. He stated that BF had a good relationship with his father and also recognized that the parents had done an extremely good job in sharing joint physical custody. Dr. Taylor's caveat as to BF's living with Dr. Sinclair in New Orleans was the uncertainty regarding the child care arrangements she would need to make to accommodate her night work schedule. With reference to the schools, Dr. Taylor said that the issue was not whether which school was superior, but rather, the fit between the school and BF. He said that the bullying at the Baton Rouge school was a negative. Although he thought the school could have done more to address the bullying, he admitted that he had never made any recommendations to the school. Regardless as to the outcome of the custody and schooling disputes, he advised that BF would need therapy.
Over the objections of Dr. Sinclair's attorney, the trial court allowed Mr. Frierson's counsel to call Dr. Jordan, the psychologist who had been disqualified as the court's expert and whose report had been stricken, as Mr. Frierson's expert. However, Dr. Jordan was prohibited from testifying as to any custody and schooling recommendations that had been made in his stricken report. Dr. Jordan's testimony covered the effects of dysgraphia, the learning difference for which BF had been diagnosed, and his opinions regarding bullying. Dr. Jordan stated that he did not have concerns about the dysgraphia because BF was doing reasonably well in a competitive school. With reference to bullying, Dr. Jordan said that bullying happens in all schools. Based on what he had heard in court, he thought that BF was a target for some of his more aggressive male peers. He suggested that BF might benefit from his father as a male role model and to see a psychologist. He added that he agreed with Dr. Taylor that in addition to the schools having anti-bullying policies in place, the person being bullied had to learn coping mechanisms.
At the conclusion of Dr. Jordan's testimony, Dr. Sinclair's counsel wanted to re-call Dr. Taylor and to present testimony from Dr. Alyson McCain, the psycho-educational evaluator, to rebut Dr. Jordan's testimony. The trial court denied the request to present rebuttal testimony, but allowed Dr. Sinclair to make a proffer.
The objections to rebuttal from Mr. Frierson's attorneys included that: Dr. Sinclair had already rested her case in chief; Dr. Jordan's testimony raised no new issues that required rebuttal; that Dr. Sinclair's counsel should have called Dr. McCain as part of Dr. Sinclair's case in chief; and highlighted that Dr. Taylor had already testified and been subject to extensive direct and cross-examination.
The trial was completed on July 12, 2013. The trial court denied Dr. Sinclair's Rules and Motions. The judge opined in part that it is "clear to me that BF does not need to go to New Orleans" and "based on the uncertainty presented by uprooting BF from his life in Baton Rouge, I do not find that it would be in his best interest to go to school in New Orleans."
Dr. Sinclair timely filed an appeal from this judgment.
STANDARD OF REVIEW
Louisiana jurisprudence has long established that in child custody matters, the determinations of the trial judge are entitled to great weight, and the trial court's discretion will not be disturbed on appellate review in the absence of a clear showing of abuse. AEB v. JBE, 99-2668, p. 7 (La. 11/30/99), 752 So.2d 756, 761.
LAW AND DISCUSSION
Dr. Sinclair's assignments of error contend that 1) the trial court abused its discretion in denying Dr. Sinclair the opportunity to present rebuttal testimony after having been ordered by this Court on several occasions to conduct a full evidentiary hearing to determine BF's best interests; 2) the Honorable Bernadette D'Souza should have been recused for her stated and demonstrated bias and predetermination of this matter; and 3) the trial court abused its discretion and ruled contrary to the facts in evidence in determining the best interest of the minor child. Because the penultimate issue is whether the trial court erred in its fact finding, upon which it based its determination that it was in BF's best interest for Dr. Sinclair and Mr. Frierson to continue shared physical custody of BF and for BF to attend school in Baton Rouge, we shall first consider that assignment of error.
Best Interest of the Minor
The trial court provided the following oral reasons for its judgment.
Since this case was filed, I've paid close attention to the law pleadings, testimony and evidence over five days of trial, and the arguments presented by counsel. I recognize that this family and this child need finality in and certainty, which it has not had since 2009.
Considering the pleadings, all the evidence, including the testimony of BF, the parties and other witnesses, in light of the law particular, the 12 best interest factors, it is clear to me that BF does not need to go to school in New Orleans. Dr. Sinclair's proposal does not provide any certainty with respect to BF's childcare while she's working, long term school environment or time spent with both parents. While some challenges might exist for BF in Baton Rouge, he has a comprehensive support network of family, friends and professionals aware and capable of addressing these challenges. I would like to see continued improvement in BF's educational, social and cultural development. The continuity of the stable home and school life in Baton Rouge will facilitate as will frequent weekends and summer trips to New Orleans as the parties have
been doing for the last several years.
Based on the uncertainty presented by uprooting BF from his life[sic] in Baton Rouge, I do not find that it would be in his best interest to go to school in New Orleans. There is no guarantee of that these schools in New Orleans would provide BF with a better chance to succeed academically or an environment free of bullying. These parents both parents obviously love this child very much and want him to be successful and happy, unfortunately their professional and personal goals prevent them from seeing eye to eye on what is in BF's best interest.
Dr. Sinclair and Mr. Frierson should both continue to be involved in BF's day to day life. Revised Statute 9:335A(2)(b) provides that to the extent that it is feasible and in the best interest of the child physical custody of the children should be shared equally. This is what the parties have always done, it is not in BF's best interest to disrupt that. I recognize that BF has expressed a desire to come to school in New Orleans; however, I believe that his affinity for New Orleans is based on weekends and summertime visits, and that two to three visits to a school at which he can only attend two more years is not a sufficient foundation for me to let that that preference over-ride the other important best interest factors.
So accordingly, the motion for authorization to enroll BF in a school in New Orleans and to modify custody is hereby denied.
The trial court used the minor's given name in its oral reasons for judgment; however, this Court shall continue to use his initials in referencing the minor.
Dr. Sinclair argues that the trial court ruled contrary to the facts in determining BF's best interests. Dr. Sinclair emphasizes that the trial court did not follow the recommendations of Dr. Taylor and failed to give greater weight to BF's expressed preference to go to school in New Orleans. Accordingly, Dr. Sinclair surmises that the trial court did not properly apply the "best interest of the child" factors as outlined in La. C.C. art. 134. We disagree.
Art. 134. Factors in determining child's best interest
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(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.
Our review of the record shows that Dr. Taylor provided data for the trial court's consideration upon which to base its decision as to custody and BF's schooling. We acknowledge, as did the trial court, that Dr. Taylor found that BF had more of an "affinity" for his mother; considered New Orleans as his home base; and that BF wanted to attend school in New Orleans. However, Dr. Taylor's findings also concluded that BF had two good parents who love their child and had done an extremely good job at sharing equal custody. Dr. Taylor relayed that BF loved both parents. He observed that notwithstanding the conflict between his parents, BF had not exhibited any behavioral problems and had maintained his adjustment through all the changes. Dr. Taylor agreed that there were few matters of distinction between the two parents regarding their fitness and devotion to their child, and their ability to provide for his welfare.
Our review also shows that the trial court acknowledged that BF expressed his preference to go to school in New Orleans. However, the record also supports that BF had friends at his Baton Rouge school; that the bullying situation had been addressed and was getting better; that he had tutors; and that he was doing well in school. The general consensus of the testimony establishes that both the New Orleans school that Dr. Sinclair wanted BF to attend and his Baton Rouge school were considered "good" schools that could make accommodations to address BF's dysgraphia and bullying issues.
This Court discussed the application of the best interest factors in Richardson v. Richardson, noting the following:
The court is not bound to make a mechanical evaluation of all of the statutory factors listed in article 134, but should decide each case on its own facts and in light of those factors. Flanagan v. Flanagan, 36,852, p. 6 (La. App. 2 Cir. 3/5/03), 839 So.2d 1070, 1074. The court is not bound to give more weight to one factor over another; when determining the best interest of the child, the factors must be balanced and weighed in view of the evidence presented. See Hoskins v. Hoskins, 36,031 (La. App. 2 Cir. 4/5/02), 814 So.2d 773. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Sawyer v. Sawyer, 35,583, p. 3 (La. App. 2 Cir. 11/2/01), 779 So.2d 1226, 1229-30.07-0430, p. 21 (La. App. 4 Cir. 12/28/07), 974 So.2d 761, 775.
In deciding whether the trial court properly applied the "best interest" factors to its consideration of Dr. Taylor's testimony, we do so through the prism of established Louisiana jurisprudence which provides that after weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. McKenzie v. Cuccia, 04-0112, p. 6 (La. App. 4 Cir. 6/23/04), 879 So.2d 335, 339. The same precept also gives the trial court in the present matter considerable discretion to assess the relative weight it chose to give to BF's desire to live with his mom and to attend school in New Orleans. Part of that discretion includes that consideration of a child's preference to live with a parent is not by itself sufficient to justify a change in custody. Jones v. Jones, 46,315, p. 7 (La. App. 2 Cir. 4/13/11), 63 So.3d 1074, 1078.
When the custody decree sought to be modified is a stipulated judgment to which the parties have consented, the party seeking to modify the decree must prove: 1) that there has been a material change of circumstances since the original custody decree was entered; and 2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541, p. 13 (La. 2/6/98), 708 So.2d 731, 738. The parties in this case clearly dispute whether or not Dr. Sinclair's decision to return to New Orleans constituted a material change of circumstances in the Parenting Agreement. However, what is not in dispute is that Dr. Sinclair retained the ultimate burden to prove that her request to modify custody was in the best interest of BF.
In the matter before us, as referenced herein, the trial court provided comprehensive reasons for its decision that any modification in custody was not in BF's best interest. It afforded the greatest weight to its conclusion that shared equal custody was in BF's best interest, in accordance with La. R.S. 9:335A(2)(b). Its judgment was premised on factual findings; and we find ample evidence in the record to support these findings. An appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings of fact are reasonable in light of the evidence viewed in its entirety, an appellate court may not reverse those findings even if it would have weighed the evidence differently. Id. Based on our review of the record, we cannot say that the trial court's findings of fact were clearly wrong, that it misapplied the best interest factors, or that it committed manifest error in deciding that it was in the child's best interest to deny Dr. Sinclair's motions and rules. Accordingly, Dr. Sinclair's claim that the trial court erred in applying the "best interest" factors to the facts of this case is without merit.
Denial Of Right To Present Rebuttal Case
This assignment of error argues that the trial court abused its discretion in denying Dr. Sinclair the opportunity to present testimony from Dr. Taylor and Dr. McCain to rebut the testimony of Dr. Brian Jordan. Dr. Sinclair contends this denial was done in contravention of express orders from this Court to conduct a full evidentiary hearing. In particular, Dr. Sinclair claims she was entitled to rebut Dr. Jordan's opinions regarding bullying and dysgraphia.
Rebuttal evidence is confined to new matters raised by the defense; the admission of rebuttal evidence is largely within the discretion of the trial court. CNG Producing Co. v. Sooner Pipe and Supply Co., 483 So.2d 1215, 1219 (La. App. 4 Cir. 1986). A trial judge has vast discretion in the admissibility of evidence; a trial judge's decision to admit or exclude evidence will not be reversed on appeal absent a clear showing that he or she has abused that discretion. Richardson v. Richardson, supra at p.9, 974 So.2d at 769.
In the matter before us, we find that Dr. Jordan's testimony raised no new issues that had not already been raised by Dr. Sinclair. The record is replete with testimony regarding dysgraphia and bullying that was elicited from witnesses prior to Dr. Jordan's testimony. Specifically, the record shows that BF discussed dysgraphia at his Watermeir hearing and that this Court allowed Dr. Sinclair to amend her petition to include allegations of bullying. Both parties were given the opportunity to extensively examine, cross-examine, and conduct re-direct examination of Dr. Taylor, Dr. Sinclair, Mr. Frierson, and thereafter, Dr. Jordan, in regards to bullying and the impact of BF's dysgraphia diagnosis. The record also reveals that Dr. McCain conducted her psycho-educational analysis of BF in 2009 and 2012 and that her findings had been produced to the parents, Dr. Taylor, and the Baton Rouge school. Clearly, Dr. Jordan's testimony was not the first to raise the dysgraphia diagnosis. Having had sufficient opportunity to do so, we do not see where Dr. Sinclair provided any sufficient reason to the trial court as to why Dr. McCain was not called as part of her case in chief.
Notwithstanding, even had the trial court erred in not allowing Dr. Sinclair to put on rebuttal evidence, the effect of an erroneous evidentiary ruling is that error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected. La. C.E. art. 103. Richardson at p. 14, 974 So.2d at 771. When we consider the length of the trial; review the testimony of all the witnesses; the trial court's oral reasons for judgment; that Dr. Sinclair was allowed to make a proffer; and the fact that this was a judge trial, any error in the trial court's denial of Dr. Sinclair's request to put on a rebuttal case amounted to harmless error. Dr. Sinclair failed to show prejudice or that a substantial right was affected by the denial. Based upon our review of the record, Dr. Sinclair was afforded the full evidentiary hearing as ordered by this Court. Accordingly, we find no merit to this assignment of error.
Recusal Of Trial Judge
This assignment of error re-alleges Dr. Sinclair's assertion that Judge D'Souza should have been recused for her alleged stated and demonstrated bias and predetermination of this matter. Dr. Sinclair cites as examples of Judge D'Souza's bias and predetermination the fact that the trial judge twice granted Mr. Frierson's exceptions of no cause of action; granted his ex parte petition for temporary custody; and ordered BF to attend school in Baton Rouge, all without first conducting full-scale evidentiary hearings as ordered by this Court. Dr. Sinclair suggests that the trial judge again thwarted her right to a full evidentiary hearing when the judge did not allow her to rebut Dr. Jordan's testimony.
As previously referenced herein, the trial court judge assigned to hear the recusal motion denied the motion; and this Court denied Dr. Sinclair's writ application, noting that we did not find the trial court's judgment clearly wrong or manifestly erroneous. Upon consideration of the oral reasons provided by the trial court and our review of the record of the proceedings below, we agree with the trial court that the words, actions, and rulings of Judge D'Souza did not warrant a recusal.
La. C.C.P. art. 151(A)(4) provides that a trial judge of any court, trial or appellate, shall be recused when he "[i]s biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings." However, a judge is presumed to be impartial. See State v. Edwards, 420 So.2d 663 (La. 1982). Moreover, courts have consistently held that that the bias, prejudice or personal interest must be of a substantial nature and based on more than conclusionary allegations. Pierce v. Charity Hospital of Louisiana at New Orleans, et al, 550 So.2d 211, 213 (La. App. 4th Cir. 1989), writ denied, 551 So.2d 1341 (La. 1989).
In the case at bar, we find that Dr. Sinclair's recusal request is premised on disagreements over rulings as opposed to actual documentation of substantial bias. Dr. Sinclair cites no evidence that the trial judge behaved in an abusive manner towards her. Our jurisprudence holds that complaints of adverse rulings alone are not sufficient to establish bias to recuse a trial judge. Earles v. Ahlstedt, 591 So.2d 741, 746 (La. App. 1 Cir. 1991). Dr. Sinclair's expected disagreement with some of Judge D'Souza's judgments and the fact that this Court set aside some of those judgments do not warrant recusal in this matter. Our careful review of the record reflects that Judge D'Souza provided legitimate reasons for the judgments complained of by Dr. Sinclair; and moreover, the judge rendered decisions adverse to both parties.
A trial court has discretion to determine if there is a valid ground for recusation set forth in the motion. State v. Williams, 00-0011, p. 11 (La. App. 4 Cir. 5/9/01), 788 So.2d 515, 525. Based on the record before the trial judge, we find no abuse of its discretion when it denied the motion to recuse. The only additional issue Dr. Sinclair asks this Court to consider is whether substantial bias was shown when Judge D'Souza denied the request to present rebuttal testimony. Having already decided that Judge D'Souza's denial of Dr. Sinclair's request to present rebuttal evidence did not constitute reversible error, we also find no grounds for recusal. Thus, this assignment of error has no merit.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED