Bagwell v. Bagwell

132 So. 3d 426, 2014 WL 129229, 2014 La. App. LEXIS 73
CourtLouisiana Court of Appeal
DecidedJanuary 15, 2014
DocketNo. 48,913-CA
StatusPublished
Cited by6 cases

This text of 132 So. 3d 426 (Bagwell v. Bagwell) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bagwell v. Bagwell, 132 So. 3d 426, 2014 WL 129229, 2014 La. App. LEXIS 73 (La. Ct. App. 2014).

Opinion

STEWART, J.

11AppelIant Brittany Olivier Bag-well (hereafter referred to as “Brittany”), is appealing a judgment modifying custody in favor of Christopher Bagwell (hereafter referred to as “Christopher”). At issue in this child custody dispute is whether Brittany and Christopher are bound by a stipulation in a prior judgment modifying child custody. This stipulation provided that “in the event this matter is called for modification of custody, that the standard of law set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), shall not be applicable.” (Emphasis added.) Since Brittany and Christopher are free to contract for any lawful object, and since no public policy precludes them from agreeing not to apply the Bergeron standard in the event that this matter is called for modification of custody, we find that the parties are bound by the stipulation in their October 29, 2009, modification of custody judgment. The judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

Brittany and Christopher were married in Lexington, South Carolina on March 5, 2004, and established a matrimonial domicile in Haughton, Bossier Parish, Louisiana. Two children were born of the marriage, O.A.B. (DOB 12/7/04) and H.L.B. (DOB 1/26/07). Brittany and Christopher separated on October 1, 2008, and Christopher filed for divorce in accordance with La. C.C. art. 103(2) on October 3, 2008. On October 30, 2008, Brittany filed an answer and reconventional demand. Both Brittany and Christopher requested joint custody, and each requested designation as the domiciliary parent.

On January 20, 2009, a judgment of child custody was rendered ^granting the parties “legal shared custody of the minor children,” further noting that they “share eo-domiciliary status.” On April 14, 2009, Brittany filed a petition to modify custody and to seek permission to relocate with the children pursuant to a military duty reassignment. Specifically, she requested permission to relocate by June 15, 2009, and that the custody plan be modified to name her domiciliary parent. Christopher filed an objection to the relocation, followed by his petition to modify custody such that he be named domiciliary parent with the children residing primarily with him.

The trial court issued an interim order directing Christopher to have physical custody of the children for the month of June 2009, and Brittany have custody for the month of July 2009. Further, it appointed Leigh Ann O’Brien, a licensed clinical social worker in the state of Louisiana, as the court’s expert to conduct an evaluation and determine whether the children should relocate with Brittany. Ms. O’Brien rec[429]*429ommended that the children be allowed to relocate with Brittany, and a judgment modifying custody was rendered to that effect on October 29, 2009.

On July 26, 2012, Brittany filed a petition and rule to modify custody plan in order to obtain a provision whereby she would obtain passports for the children and be allowed to vacation abroad with them. In turn, Christopher filed an answer and reconventional demand to modify custody, claiming that Brittany was incapable of providing the children with a stable home. He also claimed that after her deployment, she improperly removed them from school in Mississippi in September 2011, and that she moved in violation of the relocation statute.

| aAgain, Ms. O’Brien was appointed to evaluate the modification of custody claims. She recommended that Chris and Brittany have a joint custody arrangement in which Chris is the designated domiciliary parent. In an interim order, Christopher was awarded physical custody from December 22, 2012, through December 28, 2012, with each party paying one-half of the transportation costs.

After the matter was tried on June 24, 2013, the trial court modified custody naming Christopher domiciliary parent. Also, the children were to reside primarily with Christopher, subject to a plan of physical custody in favor of Brittany. Brittany has filed the instant appeal.

LAW AND DISCUSSION

Legal Standard for Modification of Custody

Brittany’s two assignments of error are both related to the trial court’s decision to modify custody, naming Christopher as the domiciliary parent. In her first assignment, Brittany argues that the trial court erred by failing to apply the proper legal standard for modification of custody. More specifically, she argues that the trial court did not apply the standard expressed in Bergeron. She asserts that had this case been examined in light of the Berger-on rule, the record would not contain evidence that would establish that a change in custody is necessary.

The primary consideration in any child custody determination is the best interest of the child. La. C.C. art. 131; Adams v. Adams, 39,424 (La.App.2d Cir.4/6/05), 899 So.2d 726; Powell v. Powell, 28,911 (La.App. 2d Cir. 12/11/96), 684 So.2d 1084. The trial court is in the best position to ascertain the best interests of the children given each unique set of |4circumstances. Our legislature has provided 12 enumerated factors contained in La. C.C. art. 134 that are used to determine the best interest of the child. Accordingly, a trial court’s determination in the establishment or modification 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 (La.1988); Knowlton v. Knowlton, 40,931 (La.App.2d Cir.4/12/96), 927 So.2d 640.

Jurisprudence provides different burdens of proof to modify custody in instances where the initial custody decree was either a stipulated (consent) judgment or a considered decree. When parties consent to a custodial arrangement and no evidence of parental fitness is taken, the party seeking modification has the twofold burden of proving (1) that there has been a material change in circumstances since the original custody decree, and (2) that the proposed modification is in the best interest of the child. Adams, supra; Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731. A considered decree is an award of permanent custody made when the trial court has received evidence of [430]*430parental fitness. Id. The party seeking modification of a considered decree bears the heavy burden of proving that “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or ... that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron, supra.

In the case sub judice, the parties agreed in the October 29, 2009, judgment modifying custody that the Bergeron standard would not be | ¡¡applicable in the event this matter was called for modification of custody. This judgment in question included the following language:

It is Ordered, Adjudged and Decreed that in the event this matter is called for Modification of Custody, that the standard of law as set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), shall not be applicable.

During the June 24, 2018, trial, the lower court noted:

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Bluebook (online)
132 So. 3d 426, 2014 WL 129229, 2014 La. App. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bagwell-v-bagwell-lactapp-2014.