Opinion
No. 92 CA 1206.
October 15, 1993.
APPEAL FROM TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, STATE OF LOUISIANA, HONORABLE MARTIN E. COADY, J.
Sandra Gayle Reed, Covington, for appellant, Sandra Gayle Reed.
Harry P. Pastuszek, Jr., Mandeville, for plaintiff-appellee.
Before WATKINS, CARTER, LeBLANC, FOIL and PITCHER, JJ.
This appeal is from a trial court judgment awarding custody of minor children.
FACTS
On November 20, 1979, Sandra Gayle Reed and Richard Cyprian Reed were married. Of their marriage, two children were born, Christopher and Amy. In March of 1991, the Reeds physically separated, and thereafter, Mr. Reed filed suit for divorce. Mr. Reed's petition sought custody of the minor children "pending further orders of the court." Mrs. Reed, in her answer, requested the court grant joint custody with Mrs. Reed being awarded primary physical custody. The petitions requested and agreed to evaluations by a mental health professional.
By judgment, dated April 8, 1991, the parties were divorced; however, the issue of the custody of the minor children remained unresolved.
On October 30 and 31, 1991, a hearing on the custody issue was held. Both parties presented their case, then rested. At the conclusion of the hearing, the trial judge ordered psychological evaluations of the parties and the minor children and took the matter under advisement pending receipt of the written evaluations. After the reports were received, the Court issued Reasons and rendered Judgment awarding joint custody with Mr. Reed designated as the primary domiciliary parent.
From this adverse judgment, Mrs. Reed appeals. Mrs. Reed's brief includes five enumerated assignments of error which present the following issues: 1) adopting Mr. Reed's proposed joint custody plan; 2) choosing Mr. Reed as the primary domiciliary parent; and 3) failing to allow cross-examination of the court-appointed mental health professional, as required by La.C.C. art. 131 H.
Mr. Reed responded on appeal, arguing Mrs. Reed's brief did not present an argument on any error assigned, but merely set forth specifications of error and issues presented, facts, and a conclusion. Accordingly, Mr. Reed requested that this Court determine that Mrs. Reed had abandoned her appeal by her failure to brief or argue the errors raised by her appeal.
ABANDONMENT OF APPEAL
Rule 2-12.4 of the Uniform Rules of the Courts of Appeal provides, in pertinent part:
"[t]he brief of the appellant or relator shall set forth . . . a succinct syllabus or statement of the principles of law relied upon with corresponding citations or authority, a concise statement of the case, . . . a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion . . . .
In the instant case, appellant's brief contained a list of citations, a "Statement of Principles of Law", a "Statement of the Case" which included citations to pages of the record, five detailed Specification of Errors, a discussion labeled "Facts" which included citations to pages of the record, and a conclusion.
The Third Circuit, in Guidry v. Ford, Bacon Davis Const. Co., 371 So.2d 1301, 1302 (La.App. 3rd Cir. 1979), stated:
Our examination of the brief in question indicates that while there is a failure to present a concise specification of errors and issues presented on appeal, the brief does identify in general argument the errors and the issues; and the brief otherwise complies with Rule 9, Section 3. Since we find a substantial compliance with the rule, we deny the motion [to dismiss] filed by plaintiff, but counsel for appellants is instructed to adhere carefully to the provisions of the Uniform Rules in the future.
Now Uniform Rules — Courts Of Appeal, Rule 2-12.4.
We find Mrs. Reed's brief, although failing to include a section entitled "Argument", does identify and present argument for the errors specified, as well as pertinent citations. Likewise, the brief otherwise complies with the rule. Because we find substantial compliance, we decline to hold Mrs. Reed's appeal abandoned.
CUSTODY
La.C.C. art. 131 H provides, in pertinent part, as follows:
In a custody or visitation proceeding, an evaluation may be ordered on the motion of either party. The evaluation shall be made by a mental health professional agreed upon by the parties or selected by the court. The court may apportion the costs of the investigation between the parties and shall order both parties and the children to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and both parties with a written report. The mental health professional shall serve as the witness of the court subject to cross-examination by either party. [Emphasis added.]
In the instant case, Mr. Reed presented his case-in-chief and then rested. Thereafter, Mrs. Reed presented her case and then rested. Before the trial judge took the matter under advisement, Mrs. Reed's counsel again suggested an art. 131 psychological evaluation of the parties.
After hearing all of the evidence presented by both parties, the trial judge determined that it was necessary to appoint a mental health professional to give the court some guidance and stated the following:
First, I want to say, I'm not prepared to rule right now. I need to digest this.
* * * * * *
[T]hat's [appointment of a mental health professional] exactly where I'm headed with it. I don't really know.
* * * * * *
So I'm going to — I'll talk to counsel after and see if we can get something done very quickly as far as getting — what I want to do, so we don't have to go rehash everything that's been done, costwise and time wise, is have Dr. Pleune cooperate with another mental health expert, get full access, discussions, bring this mental health expert up to snuff with what he feels, talk to you two . . . . And let me get a feel of what's going on.
* * * * * *
And I would think this can be done very quickly.
After the written evaluations from the court appointed mental health professional were received, the trial court issued written reasons for judgment, which contained the following:
Currently pending before the Court is the initial setting of custody of the two minor children of the parties . . . . A hearing was held on the question of custody on October 30 31, 1991. At the conclusion of the hearing, the Court ordered psychological evaluations of the parties and the children and took the matter under advisement pending receipt of the written evaluations. Those reports have recently been received; accordingly, the Court now issues these Reasons.
After a careful evaluation of the law and the evidence in this matter, including the testimony of the nineteen witnesses adduced at the hearing and the psychological evaluations performed by Dr. Brian G. Murphy, the Court finds that joint custody of the children should be awarded to the parties, with Mr. Reed designated as the primary domiciliary parent . . . .
The reasons issued by the trial court clearly acknowledge the court's reliance on the results of the evaluations by the mental health professional. However, at no time was the mental health professional subject to cross-examination by either party, as required by the article.
The word "shall" generally denotes a mandatory duty. See, La.R.S. 1:3; La.C.C.P. art. 5053; La.Ch.C. art. 107; La.C.Cr.P. art. 5; O'Bryan v. O'Bryan, 391 So.2d 1206, 1209 (La.App. 1st Cir. 1980). See also, La.C.C. art. 11; Orleans Levee Dist. v. Glenn, 577 So.2d 336, 337-38 (La.App. 1st Cir. 1991); Matter of Marine Shale Processors, Inc., 566 So.2d 994, 997 (La.App. 1st Cir.), writ denied, 568 So.2d 1055 (1990); D'Agostino v. City of Baton Rouge, 504 So.2d 1082, 1084 (La.App. 1st Cir. 1987);
Our reading of La.C.C. art. 131 H requires the trial court to make the mental health professional available for cross-examination by either party. Failure to make him available for cross-examination was error.
CONCLUSION
For the foregoing reasons, the judgment of the trial court awarding custody of the two minor children, Amy Elizabeth Reed and Christopher Molloy Reed, and implementing the modified visitation plan is hereby reversed. The interim judgment of November 12, 1991, is hereby reinstated. This matter is remanded for further proceedings in accordance with this opinion and according to law. Costs of this appeal are to be paid by plaintiff-appellee.
REVERSED AND REMANDED.
CARTER, J., dissents and assigns reasons.
I respectfully dissent from the majority opinion insofar as it holds that, absent an objection by the parties, the trial judge's failure to permit cross-examination of the court-appointed mental health professional was reversible error.
I recognize that LSA-C.C. art. 131 H provides that "the mental health professional shall serve as the witness of the court subject to cross-examination by either party" and that the use of the word "shall" denotes a mandatory requirement. Admittedly, the clear wording of the provision requires that the court afford the parties an opportunity to cross-examine the mental health professional.
However, I do not believe that the mandatory language of LSA-C.C. art. 131 H obviates the need for the party, who is allegedly denied an opportunity to cross-examine a witness, to object to the denial of such opportunity. The law is clear that to preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. LaHaye v. Allstate Insurance Company, 570 So.2d 460, 466 (La.App. 3rd Cir. 1990), writ denied, 575 So.2d 391 (La. 1991).
There are many instances in the law in which the mandatory terminology is used, but the jurisprudence requires a contemporaneous objection to give effect to such mandatory language. For example, LSA-C.C.P. art. 1636 states that, when the court rules against the admissibility of any evidence, the court shall either permit the party to make a complete record thereof or permit the party to make a statement setting forth the nature of the evidence. In applying the same rationale used by the majority in the instant case to this example, the party who is denied the opportunity to introduce certain evidence need only attempt to introduce such evidence. If the court does not allow the introduction of such evidence, under the mandatory language of LSA-C.C.P. art. 1636, the court would be required to permit the party to proffer the evidence or make a statement, even if the party fails to object or fails to proffer such evidence. However, such a result is clearly contrary to the jurisprudence, which requires a contemporaneous objection despite the mandatory language of the article. See McLean v. Hunter, 495 So.2d 1298, 1305 (La. 1986); Scurto v. Siegrist, 598 So.2d 507, 510 (La.App. 1st Cir.), writ denied, 600 So.2d 683 (La. 1992); Menzie Tile Company, Inc. v. Professional Centre, 594 So.2d 410, 415 (La.App. 1st Cir. 1991), writ denied, 600 So.2d 610 (La. 1992); Joseph v. Mid-American Indemnity, Co., 532 So.2d 347, 348 (La.App. 3rd Cir. 1988).
To construe LSA-C.C. art. 131 H to require the court, absent a contemporaneous objection by the aggrieved party, to require the parties to cross-examine a witness would do substantial damage to the contemporaneous objection rule and wreak havoc on the legal community and trial practice. Moreover, requiring a contemporaneous objection gives an opportunity to the trial court to assess the admissibility of the evidence before judgment and enables the court to expeditiously determine the merits of an appeal. LaHaye v. Allstate Insurance Company, 570 So.2d at 466.
In the instant case, Mr. Reed presented his case in chief, calling each of his witnesses, subject to cross-examination by Mrs. Reed. Mr. Reed then rested his case. Thereafter, Mrs. Reed presented her case, calling each of her witnesses, subject to cross-examination by Mr. Reed. Mrs. Reed then rested her case. After hearing all of the evidence presented by both parties, the trial judge determined that it was necessary to appoint a mental health professional to provide the court with some guidance.
Following a lengthy discussion on the record with the parties and counsel for the parties, neither party objected to the appointment of the mental health professional nor did either party request an opportunity to examine the witness upon the completion of the evaluation.
In the instant case, although both parties had rested their cases, if counsel for Mrs. Reed objected to the trial court's appointment of a mental health professional and the subsequent use of his report to make a custody determination, an objection should have been made. Moreover, if counsel for Mrs. Reed desired an opportunity to examine the mental health professional upon the completion of his report, an appropriate objection or request should have been made in the trial court when the trial judge could have afforded her an opportunity to conduct such examination of the witness. Having failed to do so, Mrs. Reed did not properly preserve this objection for appeal, and there is nothing for this court to review.
With regard to the remaining issues on appeal, after a thorough review of the entire record in this matter, I am convinced that the evidence supports the facts found and the reasons assigned by the trial judge. Accordingly, I would affirm the trial court judgment and adopt his reasons.
With regard to the allegations that Mrs. Reed abandoned her appeal for failing to comply with Rule 2-12.4 of the Uniform Rules of the Courts of Appeal in that she did not brief each error assigned, I feel that it is unnecessary to address this issue because I would affirm the judgment of the trial court.
For these reasons, I respectfully dissent.