JONATHAN MATHES v. GIA FAUCHEUX (2015)

Relator, Gia Faucheux, seeks review of the trial court's May 4, 2015 judgment excluding the relator's tape recording of a custody evaluation session where relator was interviewed by a court-appointed custody evaluator.

According to the record, both parents consented to the appointment of Ms. Bujanda as custody evaluator. Then, during Ms. Bujanda's interview of relator, for the purposes of an updated evaluation, the evaluator allegedly made statements to relator about relator's attorney, which prompted relator to file a motion to disqualify the evaluator. In support of this motion, relator sought to introduce, and respondent moved to exclude, a tape recording of the evaluator's interview of relator that relator had made unbeknownst to the evaluator. The trial court found the tape recording was illegally obtained because court-appointed experts are immune from suit, and therefore ruled the tape inadmissible. Respondent argues that the filing of the motion to disqualify is simply another delay tactic in relator's attempt to prevent the evaluator's conclusions from being implemented. However, the trial court made no such finding.

The immunity, which relates to court-appointed experts, is from civil suits for services provided pursuant to that appointment. Haley v. Leary, 11-1144, p. 3 (La. App. 4 Cir. 3/21/12), 88 So.3d 1193, 1195 (quoting Marrogi v. Howard, 01-1106, p. 13 (La. 1/15/02), 805 So.2d 1118, 1127). Absent a court order, there is no legal authority for prohibiting an individual from recording a session with his or her court-appointed custody evaluator. Further, there is no legal basis for excluding the recording from evidence on a motion to disqualify the evaluator. While the trial court may, upon review of the recording, find it to be irrelevant or make some other finding based upon its content, the recording is not per se inadmissible.

Thus, the May 4, 2015 judgment is reversed and the matter is remanded to the trial court for further proceedings.

CHIEF JUDGE JAMES F. MCKAY

JUDGE MADELEINE M. LANDRIEU

JUDGE JOY COSSICH LOBRANO

JUDGE ROSEMARY LEDET

I respectfully dissent. I would deny relator's writ application. The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Everhardt v. Louisiana Dep't of Tramp. & Dev., 2007-0981, p. 10 (La. App. 4 Cir. 2/20/08); 978 So. 2d 1036, 1045. I find no abuse of discretion in the trial court's ruling that a tape recording of a court-appointed expert, Ms. Bujada, recorded during a custody evaluation interview, is inadmissible on a motion to disqualify the court-appointed expert on the basis of bias. The trial court noted that the relator, Ms. Faucheux is not prejudiced by the exclusion of the tape recording from evidence, and that relator is not prohibited from obtaining the information she desires. Relator may call Ms. Bujada to the stand at trial to question her regarding what she may have said during the interview in dispute and regarding her opinions of relator's counsel. For these reasons, I cannot find that trial court abused its broad discretion in excluding the tape recording from evidence on the motion to disqualify the court-appointed expert.

JUDGE SANDRA CABRINA JENKINS