Summary
The Louisiana Second Circuit affirmed the trial court’s appointment of Sheryl Garcie as tutor and Heather Ogden as undertutor of Bailey Moore following the death of Bailey’s mother. The court held that the trial court properly excluded testimony that was not proffered for appellate review and correctly applied the governing tutorship and best-interest principles. Stephen Moore was afforded liberal visitation, and costs were assessed to him.
Topics
Practice areas
Questions Presented
- Whether the district court erred by refusing to allow Stephen Moore to call Leta Moore as a witness when counsel failed to proffer the excluded testimony or state its substance.
- Whether the district court misinterpreted or misapplied Louisiana Civil Code articles 133, 134, and 256 by naming Sheryl Garcie, rather than Stephen Moore, tutor and awarding her custody of Bailey.
Holdings
- An appellate court cannot review the exclusion of testimony when the offering party fails to make a proffer or provide a statement setting forth the substance of the excluded testimony.
- Louisiana Civil Code article 256 requires the court to give first consideration to the deceased mother's surviving parents or siblings who accept appointment, but it does not require appointment of the surviving maternal grandfather. The court may appoint the other qualified relative when the evidence shows that appointment is in the child's best interest.
Key quotations
“The very purpose of requiring a proffer is to preserve excluded testimony so that the testimony (whatever its nature) is available for appellate review.” (3)
“the article does not require that he be named tutor, just that he be considered first.” (5)
“The trial court did not have to specifically list the factors or evaluate them in its ruling, just consider them.” (7)
“It would have been an abuse of discretion had the trial court not awarded her custody.” (10)
Factual background
Bailey Moore's mother, Ashley Moore, died without a will designating a tutor, and Bailey's father was unknown. Bailey's maternal grandfather, Stephen Moore, and maternal great-aunt, Sheryl Garcie, were the competing candidates for tutorship. The evidence described Stephen's disability, health and substance-abuse history, home conditions, and limited involvement in Ashley's upbringing, while depicting Sheryl as financially stable, experienced in caregiving, and closely bonded with Bailey. The district court named Sheryl tutor and awarded Stephen substantial visitation.
Procedural history
After Bailey's mother died without designating a tutor and Bailey's father was unknown, Sheryl Garcie petitioned to be confirmed as dative tutor and to have Heather Ogden appointed undertutor. The district court initially appointed Sheryl and Stephen Moore provisional co-tutors, then, after a hearing, named Sheryl tutor, Heather undertutor, awarded Stephen liberal visitation, and appointed a counselor for Bailey. The Louisiana Second Circuit affirmed.