Beebe v. Delcambre

194 So. 3d 1214, 16 La.App. 3 Cir. 17, 2016 La. App. LEXIS 1087, 2016 WL 3077799
CourtLouisiana Court of Appeal
DecidedJune 1, 2016
DocketNo. 16-17
StatusPublished

This text of 194 So. 3d 1214 (Beebe v. Delcambre) 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
Beebe v. Delcambre, 194 So. 3d 1214, 16 La.App. 3 Cir. 17, 2016 La. App. LEXIS 1087, 2016 WL 3077799 (La. Ct. App. 2016).

Opinion

KEATY, Judge.

| t Plaintiff/Appellant, Shaun Aaron Del-cambre, appeals the trial court’s judgment in favor of Defendants/Appellees, ■ Harlis Dean- Beebe, Jr. and Sharon Shaffer Beebe. For the following reasons, the trial court’s judgment is affirmed as amended.

FACTS & PROCEDURAL HISTORY

This non-parental child visitation matter regarding Alyssa Michelle Delcambre arose between her father, Shaun, and her maternal grandparents, the Beebes, following the death of her mother, Shauna Michelle Beebe, from a car accident on [1216]*1216March 17, 2014. Shaun and the decedent were never married and-were not living together at the time of her death. On March 21, 2014, the Beebes filed a petition seeking custody which was granted pursuant to the trial court’s March 25, 2014 Order, subject to an April 14, 2014 custody hearing., A pretrial conference occurred on April 2, 2014, and thereafter Shaun’s counsel filed ifi open court a Motion' To Enroll, Motion To Vacate Improvidently Issued Custody Order and Petition For Immediate Custody of Minor Daughter Based Upon Mother’s Death and Petition To Confirm Father’s Natural Tutorship. The motion was rendered moot because both parties entered into a stipulated Consent Judgment in open court. The Consent Judgment was reduced to writing on July 2, 2014, after Shaun, his counsel, and the Beebes’ counsel approved it as to form and content. The Consent Judgment was not appealed, and the Notice of the Signing of Judgment was mailed to all counsel on July 7,2014.

Approximately one year later on June 23, 2015, Shaun filed a Rule To Modify Visitation. On August 20, 2015, the Beebes filed an Answer and Reconventional Demand, Rule To Amend and Correct Judgment, Rule To Specify | ¡Visitation (hereinafter Rule to Specify Visitation). The matter proceeded to trial on August 31, 2015, wherein the trial court orally ruled in favor of the Beebes and against Shaun. In its Judgment On Rule dated October 9, 2015, the trial court granted the Beebes’ Rule to Specify Visitation and denied Shaun’s Rule To Modify Visitation. Counsel for both parties approved the Judgment On Rule as-to form and content. The Clerk of Court mailed the Notice of the Signing of- Judgment to all counsel on October 13, 2015. Shaun appealed the Judgment On Rule.

On appeal, Shaun asserts the following assignments of error:

'1. The trial judge manifestly erred in ruling that this appellant did not show the requisite material change of circumstances since the April 2, 2014 Consent Judgment, granting the appellees motion to dismiss and thereafter modifying the terns of the Consent Judgment under the guise of “clarifying” its provisions and effectively granting these maternal grandparents more visitation time establishing the most extensive , non-parent visitation schedule ever granted any grandparents in Louisiana.
2.The trial court manifestly erred in granting the unreasonable, excessive and unduly burdensome visitation rights to [Ajppellees under whatever statute she applied hereto, whether La.R.S. 9:344 or La.Civ.Code art. 136[.j
2. The trial court manifestly erred in failing to engage in the appropriate analysis of La.Civ.Code article 136’ [sic] factors and entirely ignoring ■the tensions between the appellant parent and the non-parent appellees.
3. The trial court manifestly erred in failing to afford appropriate deference to appellant as a fit parent extended constitutionally guaranteed fundamental rights of privacy in child rearing.
4. The trial court manifestly erred in ordering that the parties share the transportation for [Alyssaj’s visitation with [A]ppellees[.j
5. The trial court manifestly erred in failing to make provisions for visitation of the [Ajppellees that fall on/ near a holiday,

J^STANDARD OF REVIEW

The standard of review utilized in this matter was discussed in Evans v. [1217]*1217Lungrin, 97-541, 97-577, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735, as follows:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial' court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95); 650 So.2d 742, 747, rev’d in part, on other grounds, 96-3028 (La.7/1/97); 696 So.2d 569, reh’g denied, 96-3028 (La.9/19/97); 698 So.2d 1388. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. See Lasha, 625 So.2d at 1006. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Lasha, 625 So.2d at 1006.

DISCUSSION

I. First Assignment of Error

In his first assignment of error, Shaun makes two arguments. First, he contends that the trial court manifestly erred in finding that he failed to show a material change of circumstances since the Consent Judgment. Second, he alleges that the trial court erred by modifying the Consent Judgment’s terms under the guise of “clarifying” its provisions as it impermissibly gave the Beebes more visitation. This clarification, according to his brief, was a disguised appeal even though the Beebes’ right to appeal had long elapsed.

In opposition, the Beebes deny that their' rule was a disguised appeal. They contend that Shaun, and not them, is attempting to appeal the Consent Judgment ^approximately one year after it became final by impermissibly seeking a trial court order limiting or extinguishing 'grandparent visitation as provided therein.

The Consent Judgment provided that Alyssa was to “stay with” the Beebes “until the end of the 2013-2014 school year ending on Thursday, May 22, 2013.”1 The Beebes were granted visitation every other week during the summer of 2014 with Shaun retaining custody at the end of the summer. Alyssa was to “live. full time with” Shaun at the beginning of the 2014 school year, and the Beebes were granted visitation rights as follows:

[Ejvery other weekend visitation ... to begin at 6:00 o’clock p.m. on Friday August 15, 2014 (the first weekend following the first week of school) until 6:00 o’clock p.m, on Sunday, August 17, 2014.
'... the first Friday night ... for the Thanksgiving holiday to begin at 6:00 o’clock p.m. on Friday until 6:00 o’clock p.m. on Saturday.
[1218]*1218... the first night ...

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Bluebook (online)
194 So. 3d 1214, 16 La.App. 3 Cir. 17, 2016 La. App. LEXIS 1087, 2016 WL 3077799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beebe-v-delcambre-lactapp-2016.