Dalme v. Dalme

21 So. 3d 477, 9 La.App. 3 Cir. 524, 2009 La. App. LEXIS 1760, 2009 WL 3270789
CourtLouisiana Court of Appeal
DecidedOctober 14, 2009
Docket09-524
StatusPublished
Cited by8 cases

This text of 21 So. 3d 477 (Dalme v. Dalme) 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
Dalme v. Dalme, 21 So. 3d 477, 9 La.App. 3 Cir. 524, 2009 La. App. LEXIS 1760, 2009 WL 3270789 (La. Ct. App. 2009).

Opinions

SAUNDERS, Judge.

| ¶ This is a custody case in which the defendant, Eric Stoker (hereinafter “Appellant”), appeals the trial court’s denial of his request for a change in custody of his minor child pursuant to a rule for modification of custody and visitation after two consent custody decrees.

For the following reasons, we affirm the trial court’s denial of the request for modification of custody.

FACTS AND PROCEDURAL HISTORY

On July 30, 2004, Herbert and Martha Dalme (hereinafter “Appellees”) sought custody of their ten-month-old grandchild, Bayli Rechelle Dalme Stoker (hereinafter “Bayli”). Immediate temporary custody was granted to Appellees by way of an ex parte order, with a hearing set for August 20, 2004.

At the August 20, 2004 hearing, the parties entered into a consent custody agreement. Joint custody of Bayli was awarded to Appellees and Appellant with the Appellees being granted domiciliary custody. Appellant was granted reason[479]*479able, supervised visitation on alternating weekends and holidays.

Appellant and the minor child’s mother, Leah Dalme (hereinafter “Leah”), were subsequently married in October of 2004, establishing a matrimonial domicile in Sabine Parish. They separated in November of 2005 and were granted a divorce in Avoyelles Parish in August of 2006. Custody of Bayli was not an issue in the divorce proceeding.

On November 2, 2006, Appellant filed a rule to modify custody in Avoyelles Parish, seeking to be named domiciliary custodian. Appellees and Leah were named as defendants. After a successful declina-tory exception of improper venue by the Appellees, the case was transferred to Natchitoches Parish. A second consent custody ^agreement was reached on August 29, 2007, with a consent custody judgment signed on October 3, 2007.

The October 3, 2007 judgment again awarded joint custody of the minor child to Appellees and Appellant. Appellees retained their status as domiciliary custodians, while Appellant was now given additional reasonable, liberal, and unsupervised visitation rights.

Nearly six months later, on March 24, 2008, Appellant again filed a rule for modification of custody and visitation seeking to be named domiciliary custodian. The Appellant’s request for modification of custody was denied by the trial court.

FACTS

Bayli was born on September 3, 2003, and has primarily resided with Appellees, her maternal grandparents, since her birth. Leah lived with Appellees after the birth of Bayli and until such time as her arrest on drug charges in 2004. Bayli continued to live with Appellees even after the marriage of her parents, Appellant and Leah, in August of 2004.

Appellant pled guilty to simple burglary in 2001 and was placed on three years supervised probation. He violated his probation in March of 2002, thus resulting in his probation being extended. The most recent of numerous other charges against Appellant resulted in a September 2005 conviction for possession with intent to distribute a Schedule II drug. He was sentenced to five years suspended sentence with three years supervised probation. In March of 2005, Appellant entered into the Teen Challenge faith-based drug rehabilitation program, which he successfully completed. He has not obtained any drug counseling or attended any rehabilitation meetings since completing Teen Challenge.

IsAppellees have encouraged a continuing relationship between Bayli and Appellant and have not done anything to discourage such a relationship.

Appellant has appealed the trial court’s denial of modification of custody and has alleged the following assignment of error:

APPELLANT’S ASSIGNMENT OF ERROR:

The Trial Court erred by failing to find a change in circumstances and by granting custody of Bayli to her grandparents instead of a parent.

LAW AND DISCUSSION OF THE MERITS:

We have been asked to review the trial court’s denial of Appellant’s request to modify a consent custody agreement pertaining to a minor child. It is significant that there have been two custody decrees on this matter and that both of them have been consented to by Appellant. This court has noted that such agreements may only be modified when there is a [480]*480showing that there has been a material change in circumstances and that the modification would be in the best interest of the minor child.

If a prior award of custody has been made by consent decree, the proponent for change must show that a material change in circumstances affecting the child’s welfare has occurred since the last custody judgment before the court will consider a change in custody. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986); Millet v. Andrasko, 93-0520, p. 5-6 (La.App. 1st Cir.3/11/94), 640 So.2d 368, 370-71. If a nonparent has been awarded custody, the parent moving for a change or modification must show a change in circumstances and that the change in custody would be in the best interest of the child. Millet, 93-0520, at p. 5-6, 640 So.2d at 371.

Matter of Landrum, 97-826, p. 4 (La.App. 3 Cir. 12/10/97), 704 So.2d 872, 874 (quoting Robert v. Gaudet, 96-2506, p. 6 (La. App. 1 Cir. 3/27/97), 691 So.2d 780, 783).

STANDARD OF REVIEW

|4This court has previously held in Gremillion v. Gremillion, 07-492 (La.App. 3 Cir. 10/03/07), 966 So.2d 1228, that a trial court’s determination in a child custody case is entitled to great weight and should not be disturbed absent a showing that there was a clear abuse of discretion on the part of the trial judge.

The standard of review in child custody matters has been clearly stated by this court:

The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Id. at 1231-1232 (quoting Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365).

DISCUSSION OF APPLICABLE LAW

Appellant has urged that a material change in circumstances has occurred in that he has completed substance abuse treatment through the Teen Challenge program. He asserts that he has been sober for three years and has now become a worthy father as a reformed man.

While this court commends Appellant’s efforts at bettering his health and livelihood and encourages Appellant to remain motivated in continuing on this brighter path, it must acknowledge that this absence of illegal activity falls short of the requirements this court has demanded to satisfy a material change in circumstances.

We note that at the time of the second consent decree in October of 2007, Appellant had already been two years removed from the treatment that he claims |ficured him of his addictions. The next step in the logical progression is to ask what material change in circumstance has occurred since that time. It appears that Appellant has merely tacked additional time onto his continued sobriety.

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Dalme v. Dalme
21 So. 3d 477 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
21 So. 3d 477, 9 La.App. 3 Cir. 524, 2009 La. App. LEXIS 1760, 2009 WL 3270789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalme-v-dalme-lactapp-2009.