Filed: Dec. 12, 2013
Latest Update: Dec. 12, 2013
Summary: FREDERICKA HOMBERG WICKER, Judge. Appellant, Miguel Barnes, appeals the trial court's denial of his motion for change of custody. Because we find the mental health evaluator's report was never introduced into evidence for consideration by the trial court, we vacate the appealed judgment and remand this matter for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Mr. Barnes and Ms. Jacob share joint custody of their two minor children. On June 3, 2010, the parties entered into a Consent
Summary: FREDERICKA HOMBERG WICKER, Judge. Appellant, Miguel Barnes, appeals the trial court's denial of his motion for change of custody. Because we find the mental health evaluator's report was never introduced into evidence for consideration by the trial court, we vacate the appealed judgment and remand this matter for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Mr. Barnes and Ms. Jacob share joint custody of their two minor children. On June 3, 2010, the parties entered into a Consent J..
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FREDERICKA HOMBERG WICKER, Judge.
Appellant, Miguel Barnes, appeals the trial court's denial of his motion for change of custody. Because we find the mental health evaluator's report was never introduced into evidence for consideration by the trial court, we vacate the appealed judgment and remand this matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Barnes and Ms. Jacob share joint custody of their two minor children. On June 3, 2010, the parties entered into a Consent Judgment, providing that they would share joint custody of the minor children and further stipulating that Ms. Jacob would be named the domiciliary parent. Mr. Barnes subsequently filed a Motion for Change of Custody, seeking to be named the domiciliary parent of the minor children.1 The parties appeared before a hearing officer, who recommended that Mr. Barnes' motion for change of custody be denied and further recommended the appointment of a Parenting Coordinator to facilitate communication between the parties.2
Mr. Barnes objected to the hearing officer's recommendation and, on July 17, 2012, the trial court conducted a hearing. On that date, the trial judge indicated that he would not entertain a motion for modification of custody unless the parties underwent a full custody evaluation by a mental health expert, to which the parties agreed. Following the evaluation, Mr. Barnes filed a "Motion to Reset Custody Hearing," and on May 28, 2013, the trial court conducted a hearing on Mr. Barnes' motion. On that date, Mr. Barnes argued that the custody evaluation report recommended modification to the current custody arrangement and further recommended that Mr. Barnes be designated the domiciliary parent.3 Counsel for Ms. Jacob challenged the evaluator's report, asserting that the evaluator relied on events that occurred prior to the parties' consent judgment4 and that no material change in circumstances existed to warrant a modification of custody. The trial judge found that Mr. Barnes failed to prove a material change in circumstances and denied his motion for change of custody. Mr. Barnes appeals.
DISCUSSION
Upon review of the record in this matter, we find that the mental health expert's custody evaluation report was not formally introduced into evidence at the May 28, 2013 hearing. The transcript reflects that consideration of the evaluator's report, ordered by the trial judge, was critical to a determination of whether a change in custody was warranted in this case.
The Louisiana Supreme Court has instructed that "[e]vidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record." Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88-89. Further, "[a]ppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence." Id.; La. C.C.P. art. 2164. Because the appealed judgment clearly required the trial judge to consider the mental health evaluator's report, which was not formally introduced into evidence, we vacate the trial court's judgment and remand for further proceedings. See Sheffie v. Wal-Mart Louisiana, LLC, 11-1038 (La.App. 5 Cir. 5/31/12), 92 So.3d 625, 630; Rudolph v. D.R.D. Towing Co., LLC, 10-629 (La. App. 5 Cir. 1/11/11), 59 So.3d 1274, 1278; Brielle's Florist & Gifts, Inc. v. Trans Tech, Inc., 11-260 (La.App. 3 Cir. 10/5/11), 74 So.3d 833, 836.
The trial court's May 28, 2013 judgment is hereby vacated and this matter is remanded for further proceedings.
VACATED AND REMANDED.