Walet v Caulfield

Walet v. Caulfield, No. 2002 CU 2009 (La.App. Cir.1 06/27/2003)

This is a complete decision in a case of "keep away" and where it was decided a parent had to post a $100,000 bond before they could visit with their child. In the appellate decision below, some good things were done. But as you read the case does the "craziness" of the whole thing come through -- many of us can relate to the experiences and feelings these parents must have had. As we say in our Family Rights Act, is it time to recognize equal parents unless you can prove beyond reasonable doubt (and with the protection of a jury), that a parent is a demonstrated threat to their own children?

[1]      STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

[2]      No. 2002 CU 2009

[3]      2003.LA.0001093< http://www.versuslaw.com>

[4]      June 27, 2003

[5]      JAN C. WALET
v.
DR. JOHN JUSTIN CAULFIELD

[6]      Appealed from the Family Court in and for the Parish of East Baton Rouge, Louisiana Trial
Court No. 124,627 Honorable Annette M. Lassalle, Judge

[7]      Michael S. Walsh Baton Rouge, LA

[8]      Attorney For Plaintiff-appellee Jan C. Walet

[9]      Bennett Wolff Metairie, LA

[10]     Attorney For Defendant-appellant Dr. John J. Caulfield

[11]     Before: Carter, C.J., Guidry., Pettigrew, Mcdonald, And McCLENDON, JJ.

[12]     The opinion of the court was delivered by: Pettigrew., J.

[13]     This is an action for custody of a 6-year-old child. The acknowledged father now appeals from
a judgment of the family court that awarded sole custody of the child to the natural mother
with the father having visitation every other weekend during the school year. The father also
appeals from the court's determination that he post a $100,000.00 bond in accordance with
R. S. 9:342 to insure his compliance with the family court's child custody order. We reverse
in part, render, affirm in part, and remand with instructions.*fn1

[14]     FACTS

[15]     The record reflects that Jan C. Walet (Ms. Walet) and Dr. John Justin Caulfield
(Dr. Caulfield) met at the wedding of a friend in January 1995. Ms. Walet, who holds a
master's degree in finance, later moved from her home in New Orleans, Louisiana, to Lancaster,
South Carolina, in the fall of 1995 *fn2, and began residing with Dr. Caulfield, a urologic
surgeon. Through this relationship, Ms. Walet and Dr. Caulfield conceived a child. In the late
spring of 1996 *fn3, Ms. Walet returned to Louisiana. At this time, Ms. Walet was
approximately five months pregnant. Ms. Walet subsequently gave birth to a son, Parker Hayes
Caulfield Walet, at Woman's Hospital in Baton Rouge, Louisiana, on October 11,
1996. Dr. Caulfield, the acknowledged father, visited the child in the hospital following his
birth, and voluntarily began paying child support at the rate of $1,200.00 per month.

[16]     Ms. Walet returned to South Carolina with the child during Thanksgiving and Christmas of 1996,
and subsequently resumed living with Dr. Caulfield in South Carolina in February 1997. In May
1997, Ms. Walet left Dr. Caulfield a note and again returned to Louisiana, dividing her time
between her mother's residence in Baton Rouge, and her father's residence in New Orleans. On
June 3, 1997, Ms. Walet filed a Motion For Ex Parte Order of Provisional Custody in the Family
Court of East Baton Rouge Parish together with a Motion 'to Establish Custody and Child
Support. Service was apparently withheld on these motions, and at some point Dr. Caulfield
proposed marriage to Ms. Walet. Ms. Walet initially accepted Dr. Caulfield's proposal, but
later broke off their engagement.

[17]     On November 25, 1997, Ms. Walet refiled her previous motion for sole custody and child
support. Dr. Caulfield was subsequently served with Ms. Walet's motion in Lancaster, South
Carolina, on January 19, 1998. In January 1998, Ms. Walet obtained a job selling radio
advertising for Centennial Broadcasting in New Orleans. Prior to this time, Ms. Walet
supported herself and the child on money from her tax refund and support payments sent by
Dr. Caulfield.

[18]     Thereafter, Dr. Caulfield retained an attorney in Louisiana and filed an answer together with
a reconventional demand seeking joint custody. Dr. Caulfield also requested that the child's
name be changed from Parker Hayes Caulfield Walet to Parker Hayes Walet Caulfield. During this
time, Dr. Caulfield made repeated trips to Baton Rouge, Louisiana, from South Carolina, for
the purpose of spending several hours of supervised visitation with his son.

[19]     On October 27, 1998, Dr. Caulfield filed a motion seeking a status conference to fix interim
visitation on a regular and periodic basis. Following a hearing on November 10, 1998, the
family court issued an interim judgment that granted Dr. Caulfield unsupervised visitation
with the child on specific days from November 27, 1998, through April 3, 1999. Dr. Caulfield
was further ordered to submit to random drug testing "in the manner he had been doing in South
Carolina." *fn4 Dr. Caulfield testified however that he had never been ordered to submit to
drug testing in South Carolina.

[20]     On December 15, 1998, the family court reduced to judgment an agreement made by the parties in
March 1998, that Dr. Caulfield would pay child support in the amount of $1,200.00 per
month. Later, on January 25, 1999, the family court amended its earlier interim judgment on
visitation to include a provision that Dr. Caulfield's interim visitation be confined to East
Baton Rouge Parish. Citing a decline, and the impending liquidation of his solo medical
practice in South Carolina, coupled with Ms. Walet's demand that visitation be confined to
East Baton Rouge Parish, Dr. Caulfield filed a motion to reduce child support.

[21]     In March 1999, Dr. Caulfield closed his practice in South Carolina and was hired by Tulane
University Medical Center as an assistant professor of urology and director of its Northshore
clinic. The custody matter scheduled for April 7, 1999, was continued and reset for June 18,
1999. Following Dr. Caulfield's move to Louisiana, the relationship between the parties became
much more acrimonious.

[22]     On June 18, 1999, the parties entered into a consent decree wherein the issue of custody was
pretermitted without prejudice to either party. Dr. Caulfield was once again awarded specific
periods of visitation with the child every other weekend, commencing June 20, 1999, and
extending through October 24, 1999. Since Dr. Caulfield's income had decreased, his child
support obligation was reduced to $1,100.00 per month. At this point, Dr. Caulfield was living
across Lake Pontchartrain, in Mandeville, Louisiana, and Ms. Walet was residing in New
Orleans.

[23]     Ms. Walet testified that upon encouragement from her former boss in New Orleans, she obtained
a better paying job as an account executive for Guaranty Broadcasting in Baton
Rouge. Dr. Caulfield responded by filing a rule for reduction in child support, *fn5 on
December 14, 1999.

[24]     During the summer of 2000, Ms. Walet apparently refused to allow visitation between the child
and his father on the grounds that the earlier visitation schedule had expired. By January
2001, the parties, with limited success, had agreed on their own to exchange the child every
other weekend. Dr. Caulfield asserted that because Ms. Walet had denied him the opportunity to
make up a weekend of visitation missed in early January when the child was sick, he kept the
child an additional two days on his next weekend visitation. Ms. Walet sought and obtained an
emergency order from the family court on January 30, 2001, directing Dr. Caulfield to return
the child to Ms. Walet.

[25]     Contending that there had been no judicial order or agreement between the parties regarding
visitation, Dr. Caulfield sought an emergency writ from this court seeking to have the January
30, 2001 order vacated. *fn6 Dr. Caulfield argued that absent a determination on custody, the
parents were cotutors of the child sharing equal authority, privileges, and
responsibilities. Said application was denied on the ground that the January 30, 2001 order
did not make a determination as to legal custody. This court did however remand this matter to
the family court for an immediate entry of an interim visitation schedule. Following a hearing
on April 3, 2001, a judgment was rendered on April 4, 2001, regarding interim visitation --
the family court awarded Dr. Caulfield a weekend of visitation pending a subsequent emergency
hearing on April 17, 2001.*fn7 In addition, Dr. Caulfield was directed to provide Ms. Walet
with an affidavit setting forth his phone number and address.

[26]     After almost two years, Dr. Caulfield left Tulane in the spring of 2001, and elected to return
to the private practice of urology. Dr. Caulfield became affiliated with a urologist in
Covington that spring, but the two physicians agreed to a mutual split several months later.

[27]     Dr. Caulfield testified that although there was no custody order in place, he and Ms. Walet
purportedly had a verbal discussion wherein they tried to work out a visitation schedule for
the summer of 2001. It was Dr. Caulfield's understanding that he would receive two weeks of
visitation with the child during summer, specifically, the first week of July and the first
week of August. Dr. Caulfield testified that he was later informed that Ms. Walet had elected
to have custody of the child during the first week of July, and that he would have visitation
on an alternate week.

[28]     By August, Dr. Caulfield had not been granted the two weeks of visitation that had purportedly
been agreed upon. Believing that Ms. Walet was attempting to deny him visitation with the
child, Dr. Caulfield advised Ms. Walet at the conclusion of a weekend visitation that since
there was no written agreement, he planned to keep the child for the time he was supposed to
have during the summer. *fn8 Ms. Walet responded by filing a Rule for Immediate Emergency
Custody on August 21, 2001. The family court in Baton Rouge signed an order directing the
sheriff of St. Tammany Parish to pick up the child from Dr. Caulfield and deliver him to
Ms. Walet.

[29]     Nevertheless, on September 4, 2001, the family court rendered a judgment awarding temporary
custody of the child to the parties jointly. Said judgment further designated Ms. Walet as the
primary domiciliary parent and awarded Dr. Caulfield visitation on alternating weekends.

[30]     In an apparent attempt to be more involved in his son's life, Dr. Caulfield moved his practice
again to Baton Rouge in November 2001. Ms. Walet admitted that Thanksgiving is a more
important holiday for Dr. Caulfield's family than for hers, and further that Dr. Caulfield
normally takes the child to visit his parents in Birmingham. Ms. Walet claimed that she would
have "gladly given" the child to Dr. Caulfield for Thanksgiving "except for what had happened
in August." Ms. Walet stated that without a "written, stamped order" she was not going to
allow visitation outside of every other weekend.

[31]     Ms. Walet gave a deposition in her lawyer's office on December 5, 2001; however, during the
entire month of December, Ms. Walet failed to appear with the child for visitation and refused
to answer Dr. Caulfield's repeated calls.

[32]     Thus, there was no Christmas visitation between the child and his father. This scenario was
repeated during Dr. Caulfield's first scheduled visitation in January 2002. Ms. Walet
initially claimed that she did not have an address for Dr. Caulfield; however, Ms. Walet later
conceded that although she had an address for Dr. Caulfield, she was uncertain as to whether
this was a permanent address. Ms. Walet flatly admitted that she never telephoned
Dr. Caulfield, did not respond to Dr. Caulfield's repeated telephone calls, and did not allow
visitation until there was testimony in court on January 22, 2002, concerning Dr. Caulfield's
address.

[33]     Dr. Caulfield testified that he did not have visitation with the child during the last two
weeks of December 2001, and Ms. Walet took the child to Tennessee for Christmas. Claiming that
he did not know what was going on, Dr. Caulfield admitted that he visited the Country Day
School between Christmas and New Year's and was informed that the child was not
there. Dr. Caulfield stated that he went to the school again on January 2, 2002, in an attempt
to find out about his child.

[34]     Ms. Walet testified that upon returning the child to Country Day School on Wednesday, January
2, 2002, she received a telephone call from the school's director requesting that she come to
the school. Upon arriving at the school, Ms. Walet stated she found Dr. Caulfield in the
child's classroom. The director purportedly asked Dr. Caulfield to step outside and speak with
them. Ms. Walet claimed that she "basically didn't say much" and allowed the director to
handle the matter. The director purportedly telephoned the school's owner after Dr. Caulfield
left, and the owner advised Ms. Walet that the child would not be allowed back at the
school. Despite the fact that the child had attended the school for two years, Ms. Walet
claimed that school officials were nervous about Dr. Caulfield's repeated calls and
appearances at the school, some of which were unexpected. The child was subsequently enrolled
at University Baptist Child Care Development Center on Monday, January 7, 2002.

[35]     At a hearing before the family court on January 22, 2002, Dr. Caulfield's rule for contempt
due to his missed visitation at Christmas was pretermitted, and Dr. Caulfield stated for the
record his physical address and telephone number. Pending a trial on the merits, the court
ordered the parties to exchange the child every other weekend.

[36]     ACTION OF THE TRIAL COURT

[37]     This matter was tried in the Family Court of East Baton Rouge Parish on March 4 and 6,
2002. Dr. Caulfield testified that his office address is Physician's Plaza, No. 2, Suite 311,
Summit Hospital, 17050 Medical Center Drive, Baton Rouge, Louisiana. Dr. Caulfield testified
that since November 2001, he has shared a residence located at 3123 Myrtle Grove Drive, Baton
Rouge, Louisiana, with the owner, Jeffrey Schneider, a 27 or 28-year-old LSU graduate student
from Atlanta, Georgia, whom Dr. Caulfield met in October 2001.

[38]     At the conclusion of the hearing, the family court awarded permanent sole custody of the child
to Ms. Walet with alternating weekend visitation to Dr. Caulfield. Dr. Caulfield was also
awarded three weeks of visitation during the summer and alternating holidays. Concluding that
Dr. Caulfield presented a risk of abducting the child during visitation, the family court
required that Dr. Caulfield post a $100,000.00 bond in accordance with La. R.S. 9:342 to
secure his compliance with child custody and visitation. Dr. Caulfield was further found in
contempt of court for three separate incidents of child support arrearages, and pursuant to
La. R. S. 9:375 was assessed $850.00 in attorney fees for each infraction.

[39]     Dr. Caulfield applied to this court for writs on April 26, 2002, and requested that the family
court stay its bond requirement during the pendency of his writ application. Dr. Caulfield
also perfected an appeal from the family court's judgment of April 1, 2002. The family court
denied Dr. Caulfield's request for a temporary stay of its $100,000.00 bond requirement. On
June 11, 2002, this court denied Dr. Caulfield's writ application and held that the ruling
complained of was a final, appealable judgment that could be reviewed on appeal when the
entire record is before the court. *fn9 Dr. Caulfield also filed a writ application with the
Supreme Court that was denied on July 1, 2002.*fn10

[40]     ISSUES PRESENTED FOR REVIEW

[41]     In connection with his appeal in this matter, Dr. Caulfield sets forth the following issues
for review by this court.

[42]     1. Did Ms. Walet prove by clear and convincing evidence that sole custody is in the best
interest of [the minor child]?

[43]     2. Is it in [the minor child's] best interest to have more frequent contact than every other
weekend with his father during the school year?

[44]     3. Was the testimony and documentation regarding the consent order between Dr. Caulfield and
DHEC inadmissible because it was hearsay, irrelevant, and contrary to C. E. Arts. 902-905?

[45]     4. Is Dr. Caulfield a flight risk warranting the imposition of a R. S. 9:342 bond?

[46]     STANDARD OF REVIEW

[47]     It is a well-recognized tenet of Louisiana jurisprudence that an award of child custody is not
a tool to regulate human behavior. Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La. 1979)(on
rehearing). Every child custody case must be viewed within its own peculiar set of
facts. Connelly v. Connelly, 94-0527, p. 4 (La. App. 1 Cir. 10/7/94), 644 So.2d 789, 793. The
trial judge is in the best position to ascertain the best interest of the child given each
unique set of circumstances. Accordingly, a trial court's determination of custody is entitled
to great weight and will not be reversed on appeal unless an abuse of discretion is clearly
shown. Thompson v. Thompson, 532 So.2d 101, 101 (La. 1988)(per curiam); Bercegeay
v. Bercegeay, 96-0516, p. 5 (La. App. 1 Cir. 2/14/97), 689 So.2d 674, 676.

[48]     In the instant case, as in most custody cases, the trial court's determination was based
heavily on factual findings. As an appellate court, we cannot set aside the trial court's
factual findings unless we determine that there is no reasonable factual basis for the
findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State,
Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). If the findings
are reasonable in light of the record reviewed in its entirety, an appellate court may not
reverse even though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Furthermore, when factual findings are based on the
credibility of witnesses, the fact finder's decision to credit a witness's testimony must be
given "great deference" by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844
(La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed upon review, although
the appellate court may feel its own evaluations and inferences are as
reasonable. Id. Nevertheless, when the court of appeal finds that a reversible error of law or
manifest error of material fact was made in the trial court, it is required to redetermine the
facts de novo from the entire record and render a judgment on the merits. Id.

[49]     DISCUSSION

[50]     The first issue raised by Dr. Caulfield questions whether Ms. Walet established by clear and
convincing evidence that sole custody is in the best interest of the minor child.

[51]     Evidence that Sole Custody was in the Best Interest of the Child

[52]     In its judgment, the family court relied upon Hawthorne v. Hawthorne, 96-89 (La. App. 3
Cir. 5/22/96) 676 So.2d 619, writ denied, 96-1650 (La. 10/25/1996) 681 So.2d 365, and
Yelverton v. Yelverton, 621 So.2d 36 (La. App. 2 Cir. 1993), presumably, for the proposition
that under prior jurisprudence, where the parties' testimony revealed that sufficient
animosity and rancor existed between them such that they could not work together to the extent
required in a joint custody arrangement, the courts awarded sole custody. See Hawthorne, 96-89
at 22, 676 So.2d at 630.

[53]     Unfortunately, the Yelverton case is inapplicable to the facts of the present case for it was
decided prior to the amendment of La. Civ. Code art. 132 by Act No. 261 of 1993, which became
effective on January 1, 1994. In a subsequent opinion in Harper v. Harper, 33,452, p. 5
(La. App. 2 Cir. 6/21/00) 764 So.2d 1186, 1189, the Second Circuit examined a 1994 Louisiana
Law Review article that discussed the substantive change brought about by the 1993
amendments. The court in Harper quoted from the article and stated:

[54]     Under present Article 132, the focus of the inquiry is not on the joint custody arrangement;
it is on sole custody in a particular parent. It must be sshown, by clear and convincing
evidence, that custody in that parent will serve the best interest of the child. The question
changes from why joint custody is not in the best interest of the child to why sole custody in
a particular parent is in the best interest of the child. Although these issues may overlap,
the burden on the parent seeking sole custody is to demonstrate that the granting of custody
to that parent alone will be in the best interest of the child.

[55]     Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La. L. Rev. 103, 105 (1994). The
author further noted that the test shifted from "a negative to a positive one, from why joint
custody to both parents is not in the child's best interest to why sole custody in a
particular parent is in the child's best interest." Id. (Emphasis in original). Harper, 33,452
at 5, 764 So.2d at 1189.

[56]     The Hawthorne case cited by the family court is inapposite as well. In Hawthorne, the Third
Circuit affirmed a trial court judgment that awarded sole custody of the child to the father
based upon evidence that the mother was afflicted with a personality disorder that manifested
itself with screaming and prolonged fits of rage. In addition, the mother was found to have
engaged in documented acts of fraud and plagiarism that brought into question her honesty and
integrity. Finally, the trial court found that the mother had engaged in several seriously
irrational acts to the point that her conduct had "many earmarks of insanity." Hawthorne,
96-89 at 21, 676 So.2d at 630.

[57]     The facts presented in Hawthorne are extreme, and no facts even remotely similar to the facts
set forth therein are present in the instant case. Assuming, arguendo, that the family court
applied the correct legal standard, it is clear that Ms. Walet failed to establish, through
clear and convincing evidence, that sole custody was in the best interest of the minor
child. It was therefore error for the family court to award sole custody of the child to
Ms. Walet.

[58]     Having concluded that the family court erred, we are compelled to redetermine the facts de
novo from the entire record and render a judgment on the merits. Rosell, 549 So.2d at 844
n. 2.

[59]     Facts Found on De Novo Review

[60]     Following an in-depth and comprehensive review of the record and transcript, we note that
after Ms. Walet surreptitiously fled with the child from South Carolina in May 1997,
Dr. Caulfield did not enjoy an extended period of visitation with his son until the following
year in August 1998. On that occasion, Dr. Caulfield traveled from South Carolina and
accompanied his parents to Gulf Shores, Alabama. Ms. Walet traveled with the child from New
Orleans, and Dr. Caulfield paid for Ms. Walet to stay next door to him at the same
resort. Dr. Caulfield testified that he would see the child during the day, and then Ms. Walet
would take the child at night.

[61]     Apparently unbeknownst to Dr. Caulfield, Ms. Walet's stepmother, Mrs. Diane Walet ("Diane
Walet"), accompanied her stepdaughter to Alabama in a separate car. Diane Walet testified
that, for reasons that are not entirely clear, she and Ms. Walet followed Dr. Caulfield to a
local restaurant/bar, the FloraBama, in separate cars. Diane Walet claimed that she and her
stepdaughter sat across the road in their cars, and observed Dr. Caulfield leave the child
alone in his car for a period she timed at thirty minutes. Diane Walet further claimed that
she even took pictures of the incident, but testified that she did not bring the pictures with
her to court, as they were not something she kept handy.

[62]     In his testimony, Dr. Caulfield admitted that he took the child with him to the Flora-Bama for
lunch, but repeatedly denied that he ever left the child alone in his car. More importantly,
Dr. Caulfield stated that he did not believe that Ms. Walet would have allowed the child to
remain unattended in a car.

[63]     Dr. Caulfield testified that he agreed to submit to voluntary, random drug testing in November
1998, despite the fact that he was never required to undergo drug testing or substance abuse
treatment in connection with the investigation of his medical practice in South Carolina, in
order to protect himself from unfounded allegations put forth by Ms. Walet and others.

[64]     Following her return to Louisiana and return to work, Ms. Walet and the child lived during the
week in New Orleans with her father and stepmother. *fn11 Ms. Walet also enrolled the child in
daycare at the Kidopelous Child Care Center. Dr. Caulfield testified when he later moved from
South Carolina and took a job at Tulane, he had an office in New Orleans by the Kidopelous
Child Care Center that his son attended, which is also the Tulane Medical Center daycare. The
consent decree that the parties entered into on June 18, 1999, ordered that the child continue
to attend the Kidopelous Child Care Center for the next twelve months *fn12, and further
permitted Dr. Caulfield to visit the child at the child care center provided said visits were
not disruptive. Said judgment further provided Dr. Caulfield with his first periods of
overnight visitation.

[65]     Both parties testified that the initial visitations between the child and Dr. Caulfield went
fine; however, Ms. Walet later testified that following an overnight visitation in July, the
child returned "inconsolable" and told her that he did not want to visit his father
again. However, when his father came to pick him up at Kidopelous, the child smiled and ran to
his father. After that visitation, according to Ms. Walet, the child would not go to the
bathroom, placed his mother's hand over his genitals several times, experienced nightmares,
and started swaying back and forth. Ms. Walet stated that although she did not see any
physical signs of abuse, she contacted programs for battered women and child abuse agencies,
and admitted, "until I got it sorted out, I was not sending my kid again." Ms. Walet took the
child to see Dr. Kelly, a child psychologist, who found no evidence of sexual
abuse. Ultimately, the family court stated that it "didn't pay . . . any mind" to the
allegations of sexual abuse, which Ms. Walet did not pursue any further.

[66]     Dr. Caulfield testified that in August 1999, Ms. Walet kept the child away from him without
any explanation or telephone calls, and when Dr. Caulfield appeared at Kidopelous, he was not
permitted to see the child. Thereafter, on or about October 22, 1999, Ms. Walet suddenly and
unilaterally removed the child from Kidopelous, and relocated to Baton Rouge. Ms. Walet
testified that due to her earlier suspicions of child abuse, she was not "on open
communication" with Dr. Caulfield and failed to personally inform him of her decision to
relocate.

[67]     During Thanksgiving 1999, Dr. Caulfield testified that he was supposed to have the child from
Wednesday through Sunday. Dr. Caulfield conceded that he was supposed to return the child to
Ms. Walet in Baton Rouge, but nevertheless made Ms. Walet travel to Covington to pick up the
child.

[68]     The existing June 18, 1999 consent decree provided the child was to be returned to Ms. Walet's
residence in New Orleans. Ms. Walet's attorney later asked Dr. Caulfield why, after Ms. Walet
moved to Baton Rouge, he refused to take the child to Ms. Walet's father's home in New Orleans
as Dr. Caulfield's former attorney had agreed. Dr. Caulfield testified that his attorney at
the time made this agreement without consulting him. He stated he would have complied had it
been court-ordered, but Dr. Caulfield believed it was unfair to make the child ride from his
home in Mandeville to Ms. Walet's father's home in New Orleans, and then another hour to
Ms. Walet's home in Baton Rouge. In Dr. Caulfield's opinion, picking the child up in
Mandeville and then taking him home to Baton Rouge made more sense, so he refused to transport
the child to New Orleans.

[69]     In December 1999, Dr. Caulfield was to have visitation for the weekend. He waited at the
agreed upon place, McDonald's on Essen Lane, but Ms. Walet never appeared with the
child. Ms. Walet admitted later that she took the child with her to New Orleans instead
because she claimed she did not have Dr. Caulfield's current address or telephone number.

[70]     Since Ms. Walet's relocation to Baton Rouge, Dr. Caulfield had been picking the child up at
the Montessori School in Baton Rouge for weekend visitation; however, in May 2000, when the
school closed for the summer, Dr. Caulfield inquired as to where he should pick up the
child. Ms. Walet purportedly responded that the visitation schedule imposed pursuant to the
June 18, 1999 consent decree had expired. Dr. Caulfield was between attorneys at that point,
thus, he went the entire summer, until mid-August 2000, without seeing his child.

[71]     During Christmas 2000, Dr. Caulfield took the child to see his parents in Birmingham,
Alabama. The arrangement was that Dr. Caulfield was to pick up and return the child to Baton
Rouge; however, Dr. Caulfield's sister called Ms. Walet to inform her that the train would be
delayed. Ms. Walet drove to the train station in Slidell to pick up the child. Dr. Caulfield
testified that the nebulizer the child was using for a respiratory infection accompanied them
to Birmingham and that the child was given all the necessary treatments. This testimony was
contradicted by Ms. Walet who claimed that she accompanied the child and Dr. Caulfield to get
the nebulizer out of the trunk of the car. Ms. Walet testified that Dr. Caulfield refused to
use the nebulizer regularly, although she conceded Dr. Caulfield was more amenable to its use
when Ms. Walet later explained to him that she had been asthmatic as a child.

[72]     By January 2001, and despite the fact that the specific periods of visitation set forth in the
June 18, 1999 consent decree had long expired, the parties were nevertheless exchanging the
child every other weekend. On one weekend in January when he was due to exercise visitation,
Dr. Caulfield was advised that the child was sick. When Dr. Caulfield sought to make up his
missed visitation, Ms. Walet purportedly refused. Dr. Caulfield admitted that the next time he
received the child for weekend visitation, he decided unilaterally to keep the child for an
additional two days to make up for the weekend of visitation he had missed. Ms. Walet
testified that when she sought to reclaim her son, she was hindered in her attempt because she
did not have a correct address for Dr. Caulfield, and the police would not assist her without
a valid custody agreement.

[73]     When Dr. Caulfield failed to appear and return the child on Sunday, Ms. Walet contacted her
attorney. An emergency telephone status conference between counsel and the judge was held on
Tuesday, January 30, 2001, whereupon Ms. Walet obtained an order directing that the child be
returned by 6:30 p.m. that evening. Dr. Caulfield admits that he was late in returning the
child that evening due to roadwork on Interstate 12, but asserts that he called Ms. Walet and
apprised her of this fact.

[74]     As previously mentioned, Ms. Walet, during the summer of 2001, purportedly deprived
Dr. Caulfield of the two weeks of visitation previously agreed upon. In response,
Dr. Caulfield unilaterally elected to make up the missed time by keeping the child. Ms. Walet
called upon the family court and local law enforcement to retrieve the child.

[75]     At trial, Dr. Caulfield testified that he made a "big mistake" in not communicating better,
and admitted that while he may have given a partially incorrect address, Ms. Walet
nevertheless knew the physical location of his apartment. In Dr. Caulfield's opinion, there
were other ways to handle this matter without summoning the police. In connection with her
testimony, Ms. Walet stated that the child had to be told that the reason he was picked up by
the police was because "his daddy wasn't following the rules."

[76]     Despite the fact that the family court thereafter awarded temporary custody jointly to the
parties, Ms. Walet nevertheless withheld visitation during Thanksgiving 2001, refused to
communicate with Dr. Caulfield, and withheld visitation during December 2001 and most of
January 2002. Ms. Walet contended initially she withheld visitation because she did not have
an address for Dr. Caulfield, but later contended that while she had an address, the address
could not be verified.

[77]     Dr. Caulfield also admitted candidly that he has not always paid his child support on
time. Although he was current on his child support payments at the time of trial,
Dr. Caulfield admitted that he had been behind in his payments on three occasions, and was
accordingly in contempt of the court's orders regarding child support. While Dr. Caulfield
testified that he did not think that he should be the sole custodial parent, he opined that
Ms. Walet had abused her role as domiciliary parent and accordingly thought the parties should
share domiciliary status. Dr. Caulfield stated that he wanted as much time as possible with
his son, with both parents having equal access.

[78]     Following our review of the record in this matter, it is obvious that both Ms. Walet and
Dr. Caulfield have been guilty of failures to communicate and cooperate with the other
parent. In the opinion of this court, many, if not all, of the miscommunications and
misunderstandings that occurred have resulted from the fact that too often, there was no valid
custody decree or interim order that clearly and explicitly set forth each party's rights with
respect to physical access to the child. While this court does not condone Dr. Caulfield's
penchant for personally redressing perceived infractions of the custody plan by Ms. Walet, we
note that such acts are insufficient to warrant an award of sole custody to Ms. Walet. On the
other hand, we are disturbed by the fact that Ms. Walet has chosen to engage in a pattern of
unilateral conduct whereby she grants and withholds visitation as she sees fit in direct
defiance of the existing temporary custody decree. Unfortunately, such conduct on the part of
Ms. Walet has become increasingly more commonplace despite the fact that the family court
awarded temporary custody of the child jointly to the parties in September 2001. Despite her
self-serving statements to the contrary, it is obvious Ms. Walet truly relishes her role as
the final arbiter of what is best for the child, and would love to relegate Dr. Caulfield to
the role of absentee parent.

[79]     Upon application of a clear and convincing evidence standard, we find no facts in the record
sufficient to justify the family court's award of sole custody to Ms. Walet. It is therefore
the opinion of this court that the best interests of the child mandate that the parties share
joint custody of the child, with both parties having equal access to all medical and
educational records, and all major medical and educational decisions affecting the minor child
shall be mutually agreed upon. Additionally, it shall be a continuous and affirmative duty of
both parties to provide the other party with an affidavit attesting to said party's current
residential address, together with residential, office, and cellular telephone
numbers. Subject to the foregoing, Ms. Walet shall be designated as the primary domiciliary
parent of the child.

[80]     Accordingly, we hereby remand this matter to the family court for further proceedings and
rendition of a joint custody implementation order consistent with this opinion and in
accordance with the provisions of La. R.S. 9:335.

[81]     More Frequent Visitation During the School Year

[82]     The second issue raised by Dr. Caulfield is whether it is in the best interest of minor child
to have more frequent contact with his father aside from every other weekend during the school
year.

[83]     Louisiana Revised Statute 9:335A(2)(b) provides that "[t]o the extent it is feasible and in
the best interest of the child, physical custody . . . should be shared equally." This statute
was amended in 1995, and rather than a mandate requiring the equal sharing of physical custody
in a joint custody situation, the law now provides that the equal sharing of physical custody
of a child is recommended where such an arrangement is both "feasible," and "in the best
interest of the child." Stephens v. Stephens, 2002-0402, p. 7 (La. App. 1 Cir. 6/21/02) 822
So.2d 770, 776.

[84]     The record reflects that at the time the family court rendered its judgment, the child of the
parties was five years old. The child is now six years old and apparently now enrolled in
elementary school. Although both parents reside in the same city, it is difficult for an
appellate court, in de novo review, to fully formulate a feasible plan for implementation of
joint custody. For this reason, and in light of our previous decision to remand this matter to
the family court, we deem it advisable to entrust resolution of Dr. Caulfield's request for
more frequent visitation with his son during the school year to the discretion of the family
court.

[85]     Admissibility of Evidence Regarding DHEC Investigation

[86]     The third issue raised by Dr. Caulfield concerns the family court's admission of certain
documents pertaining to a 1996 investigation by the State of South Carolina of his private
medical practice. Through the filing of a Motion in Limine and vehement objections at the
trial of this matter, Dr. Caulfield sought to exclude any reference to the South Carolina
investigation that was resolved several months prior to his son's birth in Louisiana in
1996. Although the family court ordered an in camera inspection of the documents in question
to determine their probative value, there is no record that such an inspection was ever
conducted, and a final written order regarding the admissibility of this evidence was never
rendered.

[87]     In her brief, Ms. Walet argues that C. E. art. 1101(B)(2) provides for a relaxed evidentiary
standard to be applied in child custody proceedings where the central focus is the best
interests of the child. Ms. Walet further asserts that such evidence is indicative of
Dr. Caulfield's "base and immoral traits."

[88]     While we would agree that Dr. Caulfield's fitness as a parent is certainly relevant to a
determination of child custody, we would have hoped that the family court would have seen fit
to balance the interests of the child against the danger of unfair prejudice to
Dr. Caulfield. The family court clearly erred in allowing Ms. Walet to introduce at trial the
deposition testimony of Robert Burgess, an investigator with the South Carolina DHEC, together
with an uncertified copy of a consent agreement reached between Dr. Caulfield and DHEC, where
said evidence established only that prior to his son's birth, Dr. Caulfield, or personnel in
his office for whom he was answerable, failed to keep proper records of certain medications.

[89]     Nevertheless, we conclude that the introduction of evidence relating to the South Carolina
DHEC investigation failed to indicate intentional wrongdoing on the part of Dr. Caulfield, and
consequently, no penalties were imposed. While the admission of said evidence was improper,
said admission was harmless error.

[90]     Imposition of $100,000.00 Bond Pursuant to La. R. S. 9:342

[91]     The final issue raised by Dr. Caulfield concerns the family court's requirement of a
$100,000.00 bond pursuant to La. R. S. 9:342 to insure Dr. Caulfield's compliance with its
child custody and visitation order.

[92]     Specifically, the judgment of the family court provides (in pertinent part):

[93]     IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to La. R.S. 9:342, John Justin
Caulfield is to post a bond in the amount of $100,000.00 to secure compliance with the child
custody and visitation order set forth herein.

[94]     Earlier, in its oral reasons for judgment, the family court opined (in pertinent part):

[95]     When you first testified as to your conflicting addresses, . . . I thought to myself, yeah,
yeah, okay, well, whatever. And I was willing to believe you, once again, that you got
confused, but, you know, really strange things started to happen to me during the hearing and
it kind of didn't fall into place today. I started to see a bigger picture. When Jan Walet
testified that she was worried that you were going to run off with the child, my first
thoughts to myself oh, it's an overprotective mother because I hear that all the time.

[96]     Unfortunately, Dr. Caulfield, you began to fit the pattern, from your own testimony, of a
parent who truly might run off with the child and that scared me. You have yet to give the
court or Ms. Walet a correct address for either your home or your work. You, at this time,
sir, are on, I don't know, your third residence, at a minimum; New Orleans, Covington,
Mandeville to Baton Rouge and by your own testimony, it's not a permanent residence. You live
with a student that you've known apparently since last fall. You're not sure what your
caseload is as to your clientele. You're not sure what you make. You're living with your
parents right now. I'm sorry.

[97]     Strike that. You're not living with your parents. Your parents are helping to support you.

[98]     In short, I think the one thing Mr. Manseur said was, in fact, truthful, whether you want to
believe it or not . . . is that you are playing games with everybody. You have played games
with Jan Walet. I think you thought you were going to get away with playing games with the
court. I don't know if you've gotten away with playing games with [your attorney], but I'm
convinced, as [counsel for Ms. Walet] said, you are an extremely intelligent person. You can't
get to where you are without being smart, sir. You have to have known that you were giving the
wrong addresses. You have to have known that you were being evasive, and I have to believe
that the only reason you did that is to play games with Ms. Walet. It doesn't serve the
child's best interest.

[99]     There is nothing under Article 134 that makes me believe it would be best for you to be a
joint custodial parent. And I have to give sole custody to Ms. Walet. I've done it on so many
limited occasions that it saddens me when I have to do that, sir. But you've done it to
yourself; and I am convinced by the clear and convincing evidence burden not only that I have
to give sole custody but that you are, in fact, a risk for fleeing with that child during
visitation.

[100]    The visitation that I'm putting into place is Friday at 6:00 P.M. until Monday morning you
bring the child back to school when school starts .... [A]lthough it's been requested by
[counsel for Ms. Walet] on a number of occasions, I refused to believe I had to do this. At
this point I believe I absolutely have to do this -- putting into place a bond in accordance
with 9:342, bond to secure child custody or visitation order in the amount of $100,000. Should
you not bring that child back to school on one occasion, sir, you're forfeiting that
bond. It's that stringent. Do you understand that, Dr. Caulfield? That bond also applies to
all other aspects of the visitation order. If you do not comply in any manner, you will
forfeit that bond.

[101]    In connection with our review of this matter, this court will take judicial notice of

[102]    La. R. S. 9:342 that provides as follows:

[103]    § 342. Bond to secure child custody or visitation order

[104]    For good cause shown, a court may, on its own motion or upon the motion of any party, require
the posting of a bond or other security by a party to insure compliance with a child
visitation order and to indemnify the other party for the payment of any costs incurred.

[105]    Despite the fact that the foregoing statute has been effective since January 1, 1994, this
court could locate only one case applying said statute. In Hodges v. Hodges, 02-0489,
(La. App. 3 Cir. 10/2/2002) 827 So.2d 1271, writ denied, 2002- 2485 (La. 11/8/2002) 828 So.2d
1122, a mother, with a history of having attempted suicide, was described by the trial court
as "unraveling" after being diagnosed with three psychological disorders. After concluding
that the mother was also willfully disrupting visitation and had attempted to have her
ex-husband labeled a sociopath, the trial court directed that the mother post a bond to ensure
her compliance with the court order. The court of appeal upheld the bond requirement finding
that the mother had repeatedly refused to comply with the visitation schedule and orders of
the court. Hodges, 02-0489 at 8, 827 So.2d at 1275-1276.

[106]    In the instant case, the family court, citing Dr. Caulfield's frequent relocations, and
failure to comply with the court's visitation orders, imposed a similar bond requirement. In
reviewing this matter, we find that while Dr. Caulfield has, between 1997 and 2002, moved
three times -- first to Mandeville, then Covington, and finally to Baton Rouge, we note that
Ms. Walet has done the exact same thing. The record reflects that in early 1997 Ms. Walet
moved to South Carolina, and back to New Orleans, to Baton Rouge and later to another location
in Baton Rouge. Neither Ms. Walet nor Dr. Caulfield has a "permanent residence." However,
while Dr. Caulfield has only moved closer to his son, it appears that Ms. Walet has only moved
the child further away from his father.

[107]    As to the family court's finding that Dr. Caulfield presents "a risk for fleeing with that
child during visitation," Ms. Walet testified as to one incident that purportedly occurred
after she surreptitiously left South Carolina with the child in May 1997. According to
Ms. Walet, Dr. Caulfield was "irate," and threatened to take the child to South America where
Ms. Walet would never find them. Ms. Walet further claimed that Dr. Caulfield "knows her
fears," and plays games with her head by turning off his answering machine and failing to
answer his phone. While Ms. Walet conveniently asserted that "[w]e shouldn't be having games,"
the record reflects that she is not above resorting to the same behavior. The record reflects
that several times Ms. Walet acknowledged she purposely failed to answer Dr. Caulfield's
calls. Additionally, we note that when Ms. Walet fled to Louisiana with the child and
relocated in New Orleans, and later moved from New Orleans to Baton Rouge, she did so both
times without advising Dr. Caulfield of her plans in advance.

[108]    While Dr. Caulfield freely admitted that he had a sister who lives in South America, he
claimed that he would never take his child down there. Additionally, Dr. Caulfield stated
that, "my sister wouldn't lie for me. If I showed up there with [my child] without -if I
wasn't supposed to, she would have turned me in." Dr. Caulfield further testified that he had
never tried to pick up his child from daycare or school when he did not have visitation.

[109]    Based upon a review of the record and our findings, it is the opinion of this court that the
family court was manifestly erroneous in its conclusion that Dr. Caulfield presented a risk
for fleeing with the child during visitation. Furthermore, while this court certainly does not
condone Dr. Caulfield's cavalier attitude with respect to visitation times and his penchant
for personally redressing perceived infractions of the custody plan by the mother, we decline
to say that such acts alone warrant the imposition of a $100,000.00 bond requirement by the
family court. The family court's factual determination that Dr. Caulfield presents a flight
risk warranting imposition of a bond is clearly wrong and must be reversed.

[110]    Having said that, we nevertheless recognize that pursuant to La. R. S. 9:342, a court "may, on
its own motion or upon the motion of any party, require the posting of a bond or other
security by a party to insure compliance with a child visitation order." Based upon our review
of the record, we find that both parties were equal[ guilty of violating the family court's
orders regarding custody.

[111]    Had this court been sitting as the trier of fact, we would have, in all likelihood, imposed a
bond on both parties equally so as to insure their compliance with custody
orders. Nevertheless, to the extent the family court believed that the evidence adduced at
trial demonstrated that Dr. Caulfield alone presented a risk of failing to comply, we must,
albeit reluctantly, concede that such a determination is within the much discretion afforded
the family court. Accordingly, we will affirm the family court's imposition against
Dr. Caulfield of a bond pursuant to La. R. S. 9:342 so as to insure his compliance with that
court's child custody and visitation orders.

[112]    However, absent some evidence regarding Dr. Caulfield's assets, liabilities, his ability to
secure a bond in such an extreme amount, and the very real possibility that even the most
minor infraction would result in the bond's forfeiture, we find that the family court, in this
instance, has effectively accomplished that which our law seeks to prohibit -the unwarranted
denial of visitation between parent and child. Accordingly, we conclude that a bond in the
amount of $100,000.00 is a clear abuse of discretion, and hereby reduce said bond to $7,500.00
with the understanding that said bond shall be due only upon the showing of a willful
violation by Dr. Caulfield of the family court's custody decree.

[113]    Interim Order

[114]    In the interim between the date of this judgment and the signing of a joint custody
implementation order by the family court on remand, Dr. Caulfield shall post a bond in the
amount of $7,500.00 to insure his compliance with the custody orders of the family
court. Thereafter, and until the family court renders its own independent order implementing
joint custody, the parties shall alternate custody every other weekend and on all major
holidays. Weekend visitation shall commence at 6:00 P.M. on Friday and last until Monday
morning at 8:00 A.M. when the party exercising visitation shall be responsible for delivering
the child to his summer activity or school on that particular day. Further, it shall be a
continuous and affirmative duty of both parties to provide the other party with an affidavit
attesting to said party's current residential address, together with residential, office, and
cellular telephone numbers.

[115]    Dr. Caulfield shall have visitation with the child from 8:00 A.M. on Thursday, July 3, 2003,
until 8:00 A.M. on Monday, July 7, 2003. Additionally, Dr. Caulfield shall have a week of
continuous visitation with the child between July 15, 2003 and July 31, 2003, and an
additional week of continuous visitation with the child during the month of August
2003. Ms. Walet shall have visitation with the child from 8:00 A.M. on Friday, August 29,
2003, until 8:00 A.M. on Tuesday, September 2, 2003. To the extent possible, both parties
should share visitation on October 11th, the child's birthday. This interim order of the First
Circuit Court of Appeal shall expire upon the signing of a joint custody implementation order
by the family court following remand.

[116]    CONCLUSION

[117]    For the above and foregoing reasons, the judgment of the family court is reversed in part,
rendered, affirmed in part, and remanded to the family court with instructions. All costs
associated with this appeal shall be assessed against appellee, Jan C. Walet. REVERSED IN
PART, RENDERED, AFFIRMED IN PART, AND REMANDED WITH INSTRUCTIONS. CARTER, C.J., DISSENTING IN
PART AND CONCURRING IN PART.

[118]    I respectfully dissent from the portions of the majority opinion that reverse the family
court.

[119]    In my opinion, Ms. Walet proved by clear and convincing evidence that sole custody is in the
best interest of the minor child, and I would affirm the trial court's award of sole custody
to Ms. Walet.

[120]    I agree with the majority's finding that the family court was within its discretion in
imposing the bond to ensure compliance with the visitation order. However, I disagree with the
reduction of the bond to $7,500 because I believe the family court did not manifestly en in
finding Dr. Caulfield presented a risk for fleeing with the child during visitation. This is a
credibility issue, pure and simple, and credibility is almost exclusively within the province
of the trial judge.

[121]    Thus, I dissent from the award of joint custody and the reduction of the bond and concur in
all other respects.

[122]    McCLENDON, J., CONCURRING IN PART AND DISSENTING IN PART.

[123]    I agree with the majority opinion, with the exception of the reduction of the bond issued
pursuant to LSA-R.S. 9:342, from $100,000.00 to $7,500.00. In this regard, I respectfully
dissent.

[124]    I do not believe that the trial court was manifestly erroneous in holding that Dr. Caulfield
presented a risk for fleeing with the minor child during his visitation periods.

[125]    Accordingly, and given that the bond in question serves the dual purpose of insuring
compliance with a child visitation order and indemnifying the other party for payment of any
costs incurred, I would find that the lowest amount to which the bond should be reduced is
$25,000.00.

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Opinion Footnotes

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[126]    *fn1 The visitation that the family court awarded to Dr. Caulfield was not raised as an issue
in this appeal.

[127]    *fn2 Ms. Walet stated that she moved to South Carolina in September 1995; however,
Dr. Caulfield testified that Ms. Walet did not move to South Carolina until November 1995.

[128]    *fn3 Again, Ms. Walet stated that she left South Carolina in June 1996; however, Dr. Caulfield
testified that Ms. Walet first moved in with his nurse, and later left South Carolina for
Louisiana in July 1996.

[129]    *fn4 There is no evidence in the record to suggest that Dr. Caulfield had previously submitted
to random drug testing in South Carolina. Dr. Caulfield later testified that he never
underwent substance abuse treatment, but admitted that he submitted to voluntary, random drug
testing in November 1998, to protect him from unfounded allegations by Ms. Walet. Several
months before the birth of his son, Dr. Caulfield was investigated by the South Carolina
Department of Health and Environmental Control (DHEC) on August 7, 1996, for claims that he
failed to keep proper records of controlled substances, issued a false prescription to replace
a bottle of Valium tablets he had taken personally, and wrongfully issued two prescriptions to
someone who was not a patient. Dr. Caulfield cooperated fully, admitted guilt, paid a
$10,000.00 fine, and was placed on probation. His license to administer controlled substances
was neither suspended nor revoked. Dr. Caulfield did not violate probation in South
Carolina. Dr. Caulfield testified that he was not required to undergo drug testing in South
Carolina.

[130]    *fn5 Under the provisions of the June 18, 1999 judgment, a status conference to determine
future custody was to be held in September 1999. A trial on the custody issue was to be held
in February 2000. Nevertheless, court minutes reflect that all future hearings were repeatedly
continued without date.

[131]    *fn6 Walet v. Caulfield, 2001-0325 (La. App. 1 Cir. 3/20/01) (unpublished).

[132]    *fn7 A minute entry in the record states only that the hearing scheduled for April 17, 2001,
was "[p]assed pursuant to a written stipulation being submitted at a later date." No such
stipulation appears in the record.

[133]    *fn8 Earlier in his testimony, Dr. Caulfield contended that he thought six weeks visitation
during the summer was standard in most cases.

[134]    *fn9 Walet v. Caulfield, 2002-0941 (La. App. 1 Cir. 6/11/02)(unpublished).

[135]    *fn10 Walet v. Caulfield, 2002-1741 (La. 7/1/02), 819 So.2d 1026.

[136]    *fn11 On weekends, Ms. Walet and the child would travel to her mother and stepfather's home in
Baton Rouge.

[137]    *fn12 The agreement further ordered that any relocation of the child "shall be governed by and
shall be in accordance with La. R. S. 9:355 et seq. In addition, said rules shall apply in the
event that either party moves from their current residence to a distance of more than fifty
(50) miles from said residence."