Deanna Arrington v. Joshua H. Arrington

• Court: Louisiana Court of Appeal
• Decided: November 9, 2011
• Docket: CA-0011-0769
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-769

DEANNA ARRINGTON

VERSUS

JOSHUA H. ARRINGTON

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 232,410 HONORABLE GEORGE CLARENCE METOYER JR, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, concurs in the result and assigns written reasons.

Kenneth Alfred Doggett P.O. Box 13498 Alexandria, LA 71315-3498 (318) 487-4251 Counsel for Plaintiff/Appellee: Deanna Arrington Brian K. Thompson P. O. Box 13984 Alexandria, LA 71315 (318) 473-0052 Counsel for Defendant/Appellant: Joshua H. Arrington EZELL, Judge.

Joshua Arrington appeals a trial court judgment which modified his physical

custody of his son and ordered him to pay child support retroactive to the date of

judicial demand. For the following reasons, we affirm.

FACTS

Deanna and Joshua Arrington were married on June 29, 2002. During the

marriage, they had one son Kole, born on September 13, 2005. On September 28,

2009, a judgment of divorce was entered granting Deanna a divorce. On February 19,

2010, a consent judgment concerning custody was signed.

The parties agreed to joint custody of Kole, with Deanna designated as the

domiciliary parent. Joshua was granted custody of Kole every other Friday to

Monday and on Monday nights when he did not have custody the previous weekend.

Joshua is employed by the Louisiana National Guard. When Joshua‟s time with Kole

would overlap with days he was away for military exercises, Joshua was granted

custody the following weekend, even if it meant Joshua would have Kole two

weekends in a row. Holidays were split equally between the parties.

Joshua also had a son, Koby, from a previous relationship. Joshua has sole

custody of Koby.1 As part of the consent judgment, the Arringtons, including Kole,

were required to see Koby‟s counselor, Dr. George Haig, as needed. Koby and Kole

were also to have separate bedrooms at Joshua‟s house.

On September 16, 2010, Joshua filed a rule for contempt seeking designation as

the primary custodian of Kole, alleging that Deanna had refused to allow Joshua to

exercise his physical custody of Kole. In response, Deanna also filed a rule for

contempt and child support arrearages. Deanna alleged that Joshua now has a live-in

girlfriend who also has a child. As a result, Kole does not have a separate bedroom

1 In Arrington v. Campbell, 04-1649 (La.App. 3 Cir. 3/9/05), 898 So.2d 611, this court

reversed the trial court and awarded sole custody of Koby to Joshua Arrington. when visiting Joshua. Deanna also alleged that there were child support arrearages in

the amount of $10,472.00.

A hearing was held on December 6, 2010. Following the hearing, the trial court

ordered that overnight custody rights of Joshua be suspended. Joshua‟s physical

custody was restricted to every other Saturday from 9:00 a.m. to 9:00 p.m. and every

other Sunday from 9:00 a.m. to 6:00 p.m. with no overnight visits. The trial court also

denied Joshua‟s motion for contempt.

Joshua filed the present appeal. He argues that the trial court erred in applying

the standard enunciated by the Louisiana Supreme Court in Bergeron v. Bergeron,

492 So.2d 1193 (La.1986), and in modifying his visitation rights. Joshua also claims

that the trial court should have found Deanna in contempt of the February 19, 2010

judgment in her refusal to follow the visitation order. Lastly, Joshua argues that the

trial court erred in finding him in arrears for child support.

APPLICABLE STANDARD

Joshua argues that the heightened standard of Bergeron is inapplicable to

reconsiderations of visitation, citing White v. Fetzer, 97-1266 (La.App. 3 Cir. 3/6/98),

707 So.2d 1377, writ denied, 98-931 (La. 5/15/98), 719 So.2d 466. The supreme

court in Bergeron, 492 So.2d at 1199, held:

that when a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed.

Joshua argues that the trial court committed a legal error in applying the

heightened standard of Bergeron, so this court should conduct a de novo review.

Joshua refers to a statement by the trial court following its oral ruling in which it

stated, “This is definitely a Bergeron.”

The judgment modified the consent custody judgment as follows: “Joshua

Arrington‟s custodial periods with the minor child, Kole Arrington, shall be limited to 2 no overnight periods consisting of every other Saturday and Sunday: with the

Saturday period being from 9:00 a.m. to 9:00 p.m. and the Sunday period being from

9:00 a.m. to 6:00 p.m.” A preliminary injunction was also issued restraining Joshua

from allowing any contact whatsoever in any manner whatsoever between Koby and

Kole.

When the colloquy between the attorneys and the trial court is read together, it

is apparent that the trial court was rendering a considered decree as opposed to an

interim ruling as requested by Joshua‟s attorney. The trial court was merely

indicating that any future modification to the judgment would be subject to the

Bergeron standard. As noted earlier, a consent judgment had previously been entered,

so there had not been a considered decree of custody. We do not find that the trial

court applied the Bergeron standard in making its decision in this case. However, we

do note that the judgment signed by the trial court on January 3, 2011, modified only

Joshua‟s physical custody schedule. As it stands, the parties still have joint custody of

MODIFICATION OF PHYSICAL CUSTODY

Joshua argues that the trial court erred in modifying his visitation rights from

that set forth in the February 19, 2010 judgment. However, what has actually been

modified is the schedule of joint custody, so we approach this case as a modification

of custody. See Granger v. Granger, 09-272 (La.App. 3 Cir. 11/10/09), 25 So.3d 162,

writ denied, 09-2687 (La. 12/18/09), 23 So.3d 941.

Deanna sought modification of custody alleging that Kole had to sleep in the

same room with Koby in violation of the consent judgment. She further alleged that

Kole was under the care, treatment, and counseling of a social worker because he had

become upset, rebellious, and greatly troubled and depressed.

The trial court modified the schedule of physical custody due to a concern of

issues between the Koby and Kole. Joshua claims that there is no reason to restrict his 3 custody with Kole to no overnight visitation just because Kole is restricted from

contact with Koby. He argues that there was no reason to restrict Johsua‟s visitation

with Kole if Joshua is enjoined form allowing Kole and Koby to interact. Joshua

alleges that he could enjoy custody with Kole every other weekend while Koby is

visiting his mother.

The principal consideration in a custody matter is the best interest of the child.

La.Civ.Code art. 131. The party seeking a modification of a consent decree must

prove that there has been a material change of circumstances since the original decree

and that the proposed modification is in the best interest of the child. Maxwell v.

Stanley, 10-1049 (La.App. 3 Cir. 2/16/11), 57 So.3d 1193. “A trial court‟s

determination in child custody matters is entitled to great weight, and will not be

disturbed on review in the absence of a clear showing of abuse of discretion.”

Granger, 25 So.3d at 164-65 (citing AEB v. JBE, 99-2668 (La. 11/30/99), 752 So.2d

756).

The parties were originally in counseling with Dr. Haig because Koby had

emotional issues due to cruel treatment and sexual abuse while in the custody of his

mother. This is why Joshua has sole custody of Koby.

Koby had behavioral issues when he was younger, resulting in expulsion from

school. Allison Andrews, principal at Paradise Elementary, testified concerning

Koby‟s behavioral issues. She was principal when he was at W.O. Hall. Koby would

not obey the teachers and would throw things. Koby is presently at Paradise. Ms.

Andrews has observed that the frequency of his misbehavior has decreased

dramatically.

Recently, Koby attended a daycare called College Camp Child Development

Center. Traci Walker, the owner of the daycare, testified that Koby was dismissed in

June or July of 2010 for aggressive behavior. She explained that he refused to go to

timeout and lunged at her. She stated that he scared her. Ms. Walker said that there 4 were also occasions when Koby struck other children. She reported any problems to

Joshua.

Brittany Sanchez dated Joshua for a year and also had a child, who was six

weeks old at the time of trial, with him. Additionally, Ms. Sanchez has a six-year-old

boy from a previous marriage. Ms. Sanchez testified that Koby hit her son in the face

with a leather belt which left a welt on his face that did not go away for two days. Ms.

Sanchez further explained that she would never leave her son alone because of Koby‟s

temper. She has even seen Koby throw Kole face down on the floor. Ms. Sanchez

explained that Koby always had an aggressive nature towards children that were

smaller than him and that he loved to bully them. Ms. Sanchez stated that she was

afraid for the safety of her son around Koby.

Janet Bennett, Deanna‟s mother, also testified at trial. She lives about three to

four miles from Deanna, so she sees Kole on a frequent basis. Ms. Bennett described

how she noticed Kole fondling himself when he spent the night at her house in

September. She told him not to do it, and he told her that Koby does it. Kole also

related to her that he and Koby had a secret but would not tell her what it was. Ms.

Bennett also testified that Kole was taking a bath at her house later and started playing

with his rectum. He related how he was scared at night at his father‟s house because

Koby bothered him.

Testimony at trial revealed that Deanna brought Kole to see Tara Bordelon, a

licensed clinical social worker, on a couple of occasions in September and October

2010. This was following the release by Dr. Haig in April 2010. Deanna explained

that Kole‟s personality had changed. He would get upset and start crying every time

he had to go to his father‟s house.

Ms. Bordelon explained that Kole did not want to go visit with his father

because there was a two-year-old there and he felt like he did not belong. Kole told

her he enjoyed the weekend with his father and brother. Kole did tell her that Koby 5 tried to squeeze his head and they fought a little bit. Deanna indicated to Ms.

Bordelon that she did not feel like she had to make Kole go to his father‟s house if he

was not comfortable. Ms. Bordelon did not feel that there had been any inappropriate

behavior and had not been alerted to the fact that she should be suspicious.

Deanna then sought the services of another licensed counselor, Darla Jo

Barron-Gilbert, because she did not feel that Ms. Bordelon and Kole connected. Ms.

Barron–Gilbert first saw Kole on November 5, 2010. Kole told her that his brother

had been mean to him. He also told Ms. Barron-Gilbert that his brother touched his

private parts. At that point, Ms. Barron-Gilbert made a call to the Department of

Children & Family Services to report sexual abuse.

Ms. Barron-Gilbert saw Kole on several more occasions prior to the hearing.

Kole indicated that he was afraid of Koby and that he had told his father about

everything that Koby had done to him. Ms. Barron-Gilbert believed that Kole had

been sexually and physically abused by Koby. She recommended that Kole not go

back to his father‟s house until there had been an investigation because Joshua should

have been hyper-vigilant in his supervision due to Koby‟s past issues.

We see no abuse of discretion in the trial court‟s decision. The concern here is

the interaction between Kole and Koby and Joshua‟s failure to recognize that there

may be issues.

CONTEMPT

Joshua also contends the trial court erred in failing to find Deanna in contempt

of the February 19, 2010 judgment for failing to allow him his scheduled time with

Kole on several occasions as mandated by the judgment. Joshua alleges that any

allegations that Kole was having problems with Koby were not at issue when he

attempted to get Kole as designated in the judgment on several occasions before

September 2010, when Kole‟s grandmother first became concerned.

6 Louisiana Code of Civil Procedure Article 221 defines contempt of court as

“any act or omission tending to obstruct or interfere with the orderly administration of

justice, or to impair the dignity of the court or respect for its authority. Contempts of

court are of two kinds, direct and constructive.” Pursuant to La.Code Civ.P. art.

224(2), constructive contempt “must be based on a finding that the accused violated

an order of the court „intentionally, knowingly, and purposefully, without justifiable

excuse.‟” Lang v. Asten, Inc., 05-1119, p. 1 (La. 1/13/06), 918 So.2d 453, 454

(quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/1/98),

711 So.2d 308, 313, writ denied, 98-990 (La. 5/29/98), 720 So.2d 343, cert. denied,

Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869 (1999)). “A trial court

is vested with great discretion to determine whether a party should be held in

contempt for willfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27, p.

9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.

11/28/01), 801 So.2d 346).

At the hearing, Deanna explained that there were occasions when she was

concerned for Kole‟s welfare because Koby was being extremely rough on him to the

point of causing marks on Kole. Deanna also explained that one time she had asked

Joshua to let Kole ride the bus home to go to tee ball practice, and then Joshua could

get him after practice. Instead, Joshua picked him up at school without informing her.

When time for the next visit, Deanna informed the school that Kole was to ride the

bus home from school because she did not trust Joshua. She also did not worry about

Fathers‟ Day because there is nothing in the judgment specifying visitation on

Fathers‟ Day or Mothers‟ Day. Although Joshua testified that he tried texting and

calling Deanna to get Kole for Fathers‟ Day, Deanna denied receiving any

communication from him.

Although it is apparent that Joshua and Deanna do not necessarily work

together in an amicable manner concerning their time with Kole, we cannot say the 7 trial court abused its great discretion in failing to find Deanna in contempt of court.

Deanna was concerned for Kole‟s safety when he was around Koby before any

allegations of potential sexual abuse arose. This is in addition to the fact that she tried

to work with Joshua when Kole had activities the weekend Joshua was to have Kole.

CHILD SUPPORT

Joshua finally argues that the trial court was erroneous in holding him in arrears

for child support from the date of judicial demand. In support of his argument, Joshua

contends that Deanna assigned her monthly child support enforcement to the State of

Louisiana for collection. She later closed her case file with the State and began

receiving payments directly from Joshua. Joshua contends that he had to prove that

was not in arrears for child support before the case was closed.

The consent judgment provided that the issue of child support was reserved and

that there would be a separate consent judgment regarding child support. No

judgment setting an amount of child support was ever rendered. It also appears that

there was never an order of interim child support.

Louisiana Revised Statutes 9:315.21(B)(1) provides that a judgment initially

awarding child support is effective as of the date the judgment is signed. When there

is no interim award of child support in effect, La.R.S. 9:315.21(B)(2) requires that a

final award of child support be made retroactive to the date of judicial demand.

Vaccari v. Vaccari, 10-2016 (La. 12/10/10), 50 So.3d 139.

Since there was no interim award of child support, the trial court was required

to make the award of child support retroactive to the date of judicial demand. We find

no error in the trial court‟s ruling that Joshua is responsible for child support from the

date of judicial demand.

For the reasons set forth in this opinion, the judgment of the trial court is

affirmed. Costs of this appeal are assessed to Joshua Arrington.

8 AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules- Courts of Appeal. Rule 2-16.3.

9 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

THIBODEAUX, Chief Judge, concurring.

I agree with the result, though I view this case as one involving

visitation, not custody, for the reasons articulated in my dissent in Granger

v. Granger, 09-272 (La.App. 3 Cir. 11/10/09), 25 So.2d 162, writ denied,

09-2687 (La. 12/18/09), 23 So.3d 941.