Crowson v. Crowson

742 So. 2d 107, 1999 WL 735968
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
Docket32,314-CA
StatusPublished
Cited by9 cases

This text of 742 So. 2d 107 (Crowson v. Crowson) 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
Crowson v. Crowson, 742 So. 2d 107, 1999 WL 735968 (La. Ct. App. 1999).

Opinion

742 So.2d 107 (1999)

Tommy Lee CROWSON, Plaintiff-Appellee,
v.
Jenny Madan CROWSON, Defendant-Appellant.

No. 32,314-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.

*108 James A. Hobbs, West Monroe, Counsel for Defendant-Appellant.

Loomis & DeMent by Albert E. Loomis, III, Monroe, Counsel for Plaintiff-Appellee.

Before NORRIS, C.J., and GASKINS and PEATROSS, JJ.

NORRIS, Chief Judge.

Jenny Crowson (Jenny) appeals a custody decree awarding joint custody of Justin Lane to her and Tommy Crowson (Tommy), and designating Tommy as domiciliary parent.

Facts

Tommy and Jenny were married on August 8, 1993; Justin Lane was born on July 27, 1994. Tommy filed for divorce on March 26, 1996; with the parties' consent, the trial court implemented a joint custody plan whereby Justin would reside with Jenny and Tommy would get liberal visitation. On August 27, 1996, Tommy filed a rule to modify custody, and the December 16, 1996 judgment of divorce with an agreed to modification of the prior joint custody plan was reduced to a written judgment signed on February 18, 1997. The stipulated joint custody plan provided that each party have Justin 50% of the time.

On December 23, 1997, Tommy filed a motion and rule for change of custody seeking to be designated the domiciliary parent, alleging that a change of circumstances had occurred in that: (1) Jenny's new husband, Brandon Parker (Brandon), physically abused Justin; (2) Jenny was abdicating her responsibilities by placing Justin with her step-father and mother, Bill and Tina Gold; (3) the Golds were adverse moral influences because they used foul language in Justin's presence; (4) Justin stated he would like to "get a *109 girlfriend and sleep with her tomorrow night," an idea he acquired due to his mother's and Mrs. Gold's influence; (5) in many instances Justin was delivered to him sick; (6) Jenny refused to use a car seat; (7) Jenny almost never attended to Justin's personal hygiene; and (8) Justin was, at any rate, "gravitating" substantially in Tommy's direction. Jenny filed a reconventional demand admitting a change of circumstances as Justin was getting older and starting pre-kindergarten and she and Tommy lived 60 miles apart. She sought to be declared domiciliary parent.

A trial was conducted, at which joint custody was maintained but Tommy was designated as domiciliary parent and Jenny given visitation. Jenny appeals the judgment, arguing that the trial court erroneously admitted certain evidence, erroneously expanded the pleadings, and that naming Tommy as domiciliary parent was not in Justin's best interests.

Law

A trial court's determination of child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Cleeton v. Cleeton, 383 So.2d 1231 (La.1979) (on rehearing ); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Powell v. Powell, 28,911 (La.App.2d Cir.12/11/96), 684 So.2d 1084; Stephens v. Smith, 30,028 (La.App.2d Cir.12/10/97), 704 So.2d 943; Stewart v. Stewart, 30,161 (La.App.2d Cir.1/21/98), 705 So.2d 802, writ denied 98-0748 (La.5/1/98), 718 So.2d 418. The trial judge, having observed the witnesses, is in the best position to determine credibility. Bunch v. Bunch, 469 So.2d 1191 (La.App. 3rd Cir.1985); Broussard v. Broussard, 462 So.2d 1386 (La.App. 3rd Cir.1985). An appellate court should be reluctant to interfere with custody plans ordered by the trial court in the exercise of its discretion. Powell v. Powell, supra; Stewart v. Stewart, supra.

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Oglesby v. Oglesby, 25,974 (La. App.2d Cir.8/17/94), 641 So.2d 1027; Stewart v. Stewart, supra. In addition, the jurisprudence has made a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and that needed to change a non-considered decree or stipulated judgment. Id.; Powell v. Powell, supra.

A considered decree is an award of permanent custody in which a trial court has received evidence of parental fitness. Id. When a considered decree has been made, the party seeking to change custody 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." Id.; Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); see also La. C.C. art. 131, comment (d).

When the parties agree to a custody plan without offering evidence as to parental fitness, the burden to modify the stipulated decree is lighter than that needed to modify a considered decree. Evans v. Lungrin, supra; Powell v. Powell, supra; Oglesby v. Oglesby, supra; Stewart v. Stewart, supra. In order to modify a stipulated plan of custody, the party seeking the modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Id.

In determining the best interest of the child, the court must consider all the relevant factors, including the moral fitness of the parents as it affects the child. *110 La. C.C. art. 134.[1] Each case must be determined on the basis of its particular facts and circumstances by weighing and balancing those factors favoring and opposing custody for the respective parents. Simmons v. Simmons, 26,414 (La.App.2d Cir.1/25/95), 649 So.2d 799. Under the jurisprudential reformation rule, when a parent reforms or abstains from any previous course of open indiscretion and immorality, a court may deem the prior misconduct abated and the evidence of the conduct not relevant in determining fitness for custody. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Rogers v. Rogers, 577 So.2d 761 (La.App. 1st Cir.1991).[2]

Whether evidence is relevant or not is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of his discretion. Smith v. Smith, 615 So.2d 926 (La.App. 1st Cir.), writ denied 617 So.2d 916 (1993); Gautreau v. Gautreau, 96-1548 (La.App. 3rd Cir.6/18/97), 697 So.2d 1339. Evidence of incidents prior to entry to the stipulated judgment may not be relevant to prove a change in circumstances but may nevertheless remain relevant on the issue of best interest of the child. Stewart v. Stewart, supra; Evans v. Lungrin, supra; Smith v. Smith, supra. The trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue which the parties have not previously had a full and fair opportunity to litigate. Id.

Analysis

Because both parties concede that there was a material change in circumstances, i.e., Justin beginning pre-kindergarten and Jenny and Tommy living a considerable distance apart, we limit our discussion to Justin's best interest.

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Cite This Page — Counsel Stack

Bluebook (online)
742 So. 2d 107, 1999 WL 735968, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crowson-v-crowson-lactapp-1999.