Bergeron v. Clark

832 So. 2d 327, 2002 WL 31356388
CourtLouisiana Court of Appeal
DecidedOctober 16, 2002
Docket02-493
StatusPublished
Cited by4 cases

This text of 832 So. 2d 327 (Bergeron v. Clark) 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
Bergeron v. Clark, 832 So. 2d 327, 2002 WL 31356388 (La. Ct. App. 2002).

Opinion

832 So.2d 327 (2002)

Teri Lee BERGERON
v.
David J. CLARK.

No. 02-493.

Court of Appeal of Louisiana, Third Circuit.

October 16, 2002.
Rehearing Denied December 11, 2002.
Writ Denied January 29, 2003.

*328 Sue Fontenot, Abbeville, LA, for Defendant/Appellant, David J. Clark.

Sachida R. Raman, Acadiana Legal Service Corporation, Lafayette, LA, for Plaintiff/Appellee, Teri Lee Bergeron.

Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and MARC T. AMY, Judges.

THIBODEAUX, Judge.

In this child custody dispute the father, David J. Clark, appeals the judgment of the trial court denying his "Rule for Change of Custody." The child's parents share joint custody. Her mother, Teri Lee Bergeron, is designated as the domiciliary parent. After a review of the factors listed in La. Civ. Code art. 134, we reverse the judgment of the trial court that Teri should remain the child's domiciliary parent. We grant physical custody of the child to David and designate David as the domiciliary parent, with Teri, the non-custodial parent, having visitation with the child. We remand this matter to the trial court for the purpose of setting specific visitation dates in accordance with this court's judgment.

I.

ISSUE

We shall decide whether the trial court abused its discretion in denying David's rule for change of custody.

II.

FACTS

Teri and David were married in March 1998. Of their marriage one child was born, Cori Lynn Clark, on October 11, 1998. Teri and David separated in March 1999 after Teri filed a protective order against David. Thereafter, David filed for divorce and custody of their minor child, Cori. On April 12, 1999, the parties entered a consent judgment awarding Teri and David joint custody of Cori, designating Teri as the domiciliary parent, and granting visitation to David every other week from Wednesday at 6:00 p.m. and ending Sunday at 6:00 p.m. The consent judgment also ordered that David make all medical decisions with regard to the child. Most importantly the consent judgment provided, with regard to alterations in its terms, that proof of change in the parties' circumstances would not be required.

Although David filed for divorce, the parties maintained their relationship with each other until December 2000. During this time David had ample access to their child. However, on May 23, 2001, David filed a rule to change custody. In his petition, David alleged that during his visitation time with Cori she was often sick and in need of medical attention, and that Teri was inept at obtaining medical care for Cori as well as understanding and following the physician's instructions. He further alleged that Cori suffers from severe constipation because she has infrequent and irregular bowel movements. David asserts that Teri's action of making Cori pick up her own waste and clean her panties when she has an accident is, in part, the reason Cori has bowel movement problems. In essence, David's claim is that Teri is unable to care for Cori properly, and he is better prepared to take care of their daughter.

*329 Teri and David's divorce judgment was signed in favor of David on July 11, 2001. With respect to the custody issue, the trial court ordered that home studies be conducted on the homes of both Teri and David. A hearing on David's rule to change custody was held on January 29, 2002 and on that same day the trial court denied David's rule to change custody. The judgment denying David's rule was signed on February 19, 2002.

III.

LAW AND DISCUSSION

Standard of Review

The standard of review to be employed in cases involving the custody of children was recently set forth by the first circuit in State ex rel. AR, 99-0813 (La.App. 1 Cir. 9/24/99); 754 So.2d 1073, as follows:

In cases involving the custody of children, the trial court is vested with a vast amount of discretion. Bagents v. Bagents, 419 So.2d 460, 462 (La.1982). The trial court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and the witnesses who testified at the trial. In re State Ex. Rel. Thaxton, 220 So.2d 184, 187 (La.App. 1 Cir.1969). As an appellate court, we must afford great deference to the trial court's decision, not only because of that court's better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). Thus, the trial court's decision will not be disturbed on review except in the clearest case of abuse of the trial court's great discretion. Bagents, supra.

Id. at 1077-78.

Further, this court stated in Duhon v. Duhon, 01-0731, p. 6 (La.App. 3 Cir. 12/12/01); 801 So.2d 1263, 1267 that:

A court of appeal may not set aside a judge or jury's factual finding unless that finding is manifestly erroneous or clearly wrong. Stobart v. State Through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d 840.

However, when a trial court's reasons do not articulate the theory or the evidentiary facts upon which its conclusion is based and the trial court's findings of fact and reasons are not clearly implied by the record, deference is not owed. Bloxom v. Bloxom, 512 So.2d 839 (La.1987). The Bloxom court was presented with a products liability issue where the trial court concluded that a vehicle's catalytic converter was unreasonably dangerous to normal use after it had ignited hay in a barn where it was parked. The Bloxom court noted that deference to a decision of less than ideal clarity is accorded if the trial court's path could reasonably be discerned, such as when its findings, reasons, and exercise of discretion are necessarily and clearly implied by the record. However, the Bloxom court could not extend such deference to the trial court's decision because the trial court merely concluded the catalytic converter was unreasonably dangerous without explanation or support for this determination.

*330 At the conclusion of trial in the present case, the trial court stated:

The Court had a chance during the testimony to review the home study and also the medical records. The Court has heard the testimony of all the witnesses.
The Court has before it a motion by David Clark to change custody and the Court will deny that motion.

The Court feels that it's in the best interest of the children [sic], after hearing all the testimony and a very interesting home study, and the Court feels that it's in the best interest of the children [sic] to keep the visitation schedule and the domiciliary status as it is now presently.

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Cite This Page — Counsel Stack

Bluebook (online)
832 So. 2d 327, 2002 WL 31356388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergeron-v-clark-lactapp-2002.