Bonnecarrere v. Bonnecarrere

69 So. 3d 1225, 2011 La.App. 1 Cir. 0061, 2011 La. App. LEXIS 846, 2011 WL 2601340
Louisiana Court of Appeal·Decided July 1, 2011·No. No. 2011 CU 0061·Published·Cited by 8 cases

Opinions

GUIDRY, J.

LAmanda Ellzey Bonnecarrere1 appeals from a portion of a judgment of the trial court, awarding John P. Bonnecarrere, III custody of the minor children each year from September 1 until one week after the completion of the school year, and awarding Amanda custody of the minor children from one week after the completion of the school year until August 31 of each year and for the first seven days of the Christmas school holiday period. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Amanda and John were married on February 3, 2002, in Vernon Parish, Louisiana and later established a matrimonial domicile in Tangipahoa Parish, Louisiana. During the course of the marriage, the couple had two children.

On January 25, 2008, Amanda filed for divorce under La. C.C. art. 102 and requested that the court order joint custody of the two minor children, with Amanda being designated as the domiciliary parent and with John being granted liberal visitation at his parents’ home in Pearl River, Louisiana. On July 9, 2008, John filed a motion and order for visitation, requesting an order from the court ensuring that he would have visitation with the children while he was back in the country on military leave, and requesting that a hearing be set for the purpose of setting a permanent visitation schedule with the children.

A hearing on the issue of visitation was held on July 28, 2008. At the hearing, the parties entered into a stipulation, and in a September 12, 2008 judgment memorializing the parties’ stipulation, the trial court granted the parties joint custody of the two children, with Amanda being designated as the domiciliary parent, subject to visitation in favor of John. The judgment outlined specific holiday visitation on behalf of John for 2008 and also provided for [1229] John to have additional ^reasonable visitation to be agreed upon by the parties. Additionally, John was to have the children for two weeks in the summer. However, John was ordered not to remove the children from the jurisdiction of the court or the State of Louisiana. The judgment also detailed amounts to be paid by John monthly in child support.

On October 17, 2008, John filed a motion and order for reduction in child support and to set a visitation schedule. John asserted that he had moved to Pipestone, Minnesota, that his income had been altered considerably by the circumstances of his present employment, and that the child care expenses for his children had decreased. Because of these changes in circumstances, John requested a reduction in child support and also a modification of the visitation schedule to ensure that he had frequent and continuing contact with his minor children.

Thereafter, Amanda filed a rule to-show cause for a temporary restraining order and injunction and rule to show cause for restricted and supervised visitation.

Following a hearing on these issues, the trial court rendered and signed a judgment on March 30, 2009, maintaining joint custody of the children, with Amanda continuing to be designated as the domiciliary parent, subject to visitation in favor of John. The court maintained the visitation schedule as provided in the September 12, 2008 judgment, including the restriction that John could not remove the children from the jurisdiction of the court or the State of Louisiana. However, beginning in 2011, the judgment removed the geographic restriction and granted John additional summertime visitation for either the entire month of June or July at John’s election. After July 2011, the judgment granted John six weeks of summertime visitation at his election between June 1 and August 1. The trial court also reduced John’s child support obligation.

Amanda filed a motion for new trial, which was denied. John appealed from the trial court’s judgment, and Amanda answered the appeal. In Bonnecarrere v. 4Bonnecarrere, 09-1647 (La.App. 1st Cir.4/14/10), 37 So.3d 1038, writ denied, 10-1639 (La.8/11/10), 42 So.3d 381, this court reversed the portion of the trial court’s judgment modifying John’s physical custody, reversed the portion of the trial court’s judgment reducing John’s child support obligation, and remanded the matter to the trial court for a recalculation of John’s child support obligation.

Thereafter, on June 9, 2010, John filed a motion and order requesting that the court award him sole custody of the minor children, or alternatively, if the court finds that he is not entitled to sole custody, that he be granted joint custody and be designated as the domiciliary parent with whom the children will principally live and reside. As a final alternative, John requested that if the court did not award him sole or domiciliary custody, that the existing custody judgment be modified to provide for expanded custody of the father during the summer school holiday period and for a one week period during each of the three major school holiday periods, and to remove the restriction limiting his exercise of custody to the State of Louisiana. In his motion, John asserted that changes in circumstances had occurred since the original custody judgment, including: (1) his recent marriage to his long-term girlfriend; (2) Amanda’s marriage and pending divorce to her second husband, Chad Hickey; (3) alleged incidents of domestic violence between Amanda and Chad; (4) [1230] Amanda’s interference with John’s exercise of physical custody and limitation of John’s contact with his children by telephone; (5) Amanda’s continued attempts to sabotage the relationship between John and the minor children; (6) Amanda’s denial of contact between John’s parents and the minor children; and (7) Amanda’s demonstrated erratic and unstable behavior.

On August 2, 2010, the trial court held a hearing on John’s motion to modify custody. In a judgment signed on September 1, 2010, the trial court modified the prior custody award with respect to the minor children, awarding John custody of [Rthe minor children each year from September 1 until one week after the completion of the school year, and awarding Amanda custody of the minor children from one week after the completion of the school year until August 31 of each year and for the first seven days of the Christmas school holiday period. The trial court also ordered John to pay all transportation costs of the minor children and ordered the parties to facilitate communication between themselves and the minor children by webcam.2 Amanda now appeals from a portion of this judgment.

DISCUSSION

The burden of proof on a party seeking to modify a prior permanent custody award is dependant on the nature of the underlying custody award. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control over a child. Shaffer v. Shaffer, 00-1251, p. 3 (La.App. 1st Cir.9/13/00), 808 So.2d 354, 356, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

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Bonnecarrere v. Bonnecarrere, 69 So. 3d 1225, 2011 La.App. 1 Cir. 0061, 2011 La. App. LEXIS 846, 2011 WL 2601340 (La. Ct. App. 2011).

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