STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-861
DUSTIN WRAY LEMOINE
VERSUS
JESSICA RACHEL BROWN LEMOINE
************
APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 41,859 “B” HONORABLE LEO BOOTHE, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Michael G. Sullivan, Judges.
AFFIRMED.
PETERS, J., dissents and assigns written reasons.
Brandy McClure Smith, Taliaferro, Purvis & Boothe Post Office Box 298 Jonesville, LA 71343 (318) 339-8526 COUNSEL FOR PLAINTIFF/APPELLANT: Dustin Wray Lemoine
J. Christopher Erny 1181 West Tunnel Boulevard, Suite A Houma, LA 70360 (985) 580-4573 COUNSEL FOR DEFENDANT/APPELLEE: Jessica Rachel Brown AMY, Judge.
The parties entered into a consent decree for the joint custody of their minor
child. The decree named the mother as the domiciliary parent and set forth an
equally-shared physical custody arrangement. Subsequently, the mother sought sole
custody and a change in the physical custody schedule. Although the trial court
maintained the parties’ joint custody of the child, it modified the physical custody
schedule to provide the father with physical custody every other weekend and shared
custody during the holidays and summer vacation. The father appeals. For the
following reasons, we affirm.
Factual and Procedural Background
Dustin and Jessica Lemoine were divorced in March 2007. The couple had one
child, Trenton Lemoine, who was born in 2000. The divorce judgment provided the
parties with joint custody of Trenton and designated Jessica as the domiciliary parent.
In relevant part, the physical custody arrangement provided each parent with
alternating weeks of physical custody and ordered each parent to provide for fifty
percent of the child’s expenses. While the trial court amended the joint custody
decree in July 2007, it maintained the parties’ alternate weekly physical custody
schedule.
In late 2007, Jessica filed several motions to modify custody, alleging
difficulties under the consent decree and seeking primary physical custody of
Trenton. These modification requests did not proceed to trial.
Subsequently, Jessica filed a November 14, 2008 petition and again sought to
be named sole custodial parent and to modify the physical custody schedule. She
alleged that Dustin “continuously failed to provide a stable and safe home
environment” while he had physical custody of Trenton. She also alleged that Dustin failed to pay his share of expenses. On this latter charge, Jessica sought to have
Dustin held in contempt of court. She listed several factual allegations which she
contended, “would be extremely detrimental to the child[.]” Finally, she requested
an order of child support. In his answer to the petition, Dustin filed a reconventional
demand and asserted that Jessica was in contempt of court for a number of alleged
violations of the custody decree.
Following a hearing on the physical custody and contempt issues, the trial court
maintained the parties’ joint custody of Trenton, but named Jessica the primary
custodial parent. Dustin was provided with physical custody of Trenton on the
second and fourth weekends of the month. The trial court also set forth a physical
custody schedule for holidays and the summer. The trial court denied both parties’
requests to hold the other parent in contempt. Proceedings related to the support
award were deferred for the submission of additional evidence.
Dustin appeals, assigning the following as error:
1. The trial court erred in its conclusion that there has been a material change of circumstances since the original custody decree.
2. The trial court erred in its conclusion that modification of the original decree is in the “best interests” of the child.
Discussion
A trial court’s ruling in a child custody case is entitled to great weight and will
not be disturbed on appeal absent a clear abuse of discretion. Guidry v. Guidry, 07-
1272 (La.App. 3 Cir. 3/5/08), 979 So.2d 603. To the extent that its ruling is based on
factual determinations, an appellate court reviews these findings for manifest error.
Rosell v. ESCO, 549 So.2d 840 (La.1989).
2 The underlying custody judgment in this case was a consent decree.
Modification of such a judgment requires that the party seeking a change prove that
there has been a material change of circumstances since the custody decree was
entered and that the proposed modification is in the best interest of the child. Guidry,
979 So.2d 603. In this case, the trial court found that Jessica established both of these
elements.
Material Change in Circumstances
Dustin first questions the determination that Jessica proved a material change
in circumstances since the entry of the original consent decree, which provided a
shared physical custody arrangement.
In finding a material change in circumstances, the trial court explained as
follows in reasons for ruling:
(A) Dustin’s complete and utter refusal to contribute to the legitimate expenses of his minor child, Trenton, (as incurred by Jessica for and on behalf of Trenton) for a period of almost two (2) years as of the date of the hearing of the captioned matter. Dustin’s “technical reasoning” that he had not been provided “copies of bills” nor “proof of payment” does not supersede his obligation to pursue an inquiry as to whether or not these were legitimate and necessary expenses for Trenton. This Court is convinced that the amount actually owed by Dustin to Jessica is at least the sum of $6,545.50 as of the date of the hearing of this matter. Even so, this Court (despite Dustin’s assuring Jessica in a recorded telephone conversation that he would pay this debt while at the same time attempting to “negociate [sic]” his legal responsibility to do so by requiring Jessica to sign a “tax paper”) in an effort to be certain, required in its Judgment for the present proceedings dated April 1, 2009, that Jessica actually provide to Dustin “copies of bills” or “proof of payment.”
(B) Dustin’s denial under oath that he was aware of specific “allergy problems” of Trenton. This Court is convinced that based upon the testimony of all parties to these proceedings[,] that the conclusion is inescapable that Dustin knew or should have known of Trenton’s allergies and took no steps to alleviate them. Although there is conflicting testimony in the record as to
3 whether or not Dustin’s parents allow their pet dog in the home during Trenton’s visitation and whether or not Dustin’s parents “smoke” in the home while Trenton is present, it is apparent to this Court that for whatever reason, Trenton’s allergies have deteriorated upon Trenton’s return to Jessica after visitation with Dustin or his parents.
It is noted by this Court that Jessica has taken steps to alleviate Trenton’s allergy problems by the acquisition of a “hyper allergenic” [sic] pet dog (a Westie), whereas the pet dog of Dustin (a Labrador retriever) and the pet dog of his parents (a basset hound) are not “hyper allergenic”[sic].
(C) Dustin’s changes of employment between the time of the above- referenced Judgment and the date of this hearing and his refusal to provide to this Court in his testimony adequate “proof of income” despite repeated attempts to elicit same by Jessica’s Counsel of Record. In response to questioning by Counsel for Jessica regarding his failure to produce subpoenaed tax documents, his excuse was that he “couldn’t find them”. It is very possible if not probable that Dustin’s income has changed since the signing of the Judgment of this Court on March 15, 2007, but this Court is unable to ascertain from the evidence whether or not this is true and thereby make and [sic] informed decision relative thereto. As stated hereinabove in this Court’s “Findings of Fact”, “no credible or verifiable evidence has been presented to this Court relative to the income of the respective parties from which this Court can make an informed decision relative to child support. To the contrary, directly conflicting and unsubstantiated evidence relative thereto has been offered into the record.” Therefore, in the interest of justice . . . this Court in its Judgment of April 1, 2009, ordered both Jessica and Dustin to provide to opposing Counsel copies of the 2008 Federal Income Tax Return of each and from which the liability for child support to be paid by Dustin would be calculated pursuant to the schedule as set forth in Louisiana Revised Statute[s] Title 9.
(D) Dustin’s combative and unresponsive attitude while testifying in these proceedings.
(E) Dustin’s . . . statements under oath that he neither knew of Jessica’s proposed change of schools for Trenton nor did he ever consent to payment of any portion of the tuition costs thereof. This testimony is in direct contradiction to Dustin’s own words pursuant to the recorded telephone conversation between Jessica and Dustin played at the trial hereof. This Court also notes Dustin’s direct testimony (when questioned by Counsel for Jessica) that Jessica “was lying” if she said there was ever a
4 conversation between Dustin and Jessica regarding Dustin’s obligation to pay his pro rata portion of the tuition for Trenton. To the contrary, the taped telephone conversation revealed that it was Dustin who in fact was being untruthful in his testimony before this Court. Further, this Court notes that Dustin’s testimony from the stand was basically to the effect that he never “agreed or consented” to the transfer of Trenton from a public school in Vidalia, Louisiana to a private school in Natchez, Mississippi. Pursuant to Louisiana Revised Statute[s] 9:335(B)(3) his “consent” was not required as Jessica, under the terms of the March 15, 2007, Judgment of this Court is the “domiciliary” parent and as such is vested with that sole authority:
Louisiana Revised Statute[s] 9:335(B)(3): “The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise.” []
(F) For much of the period of time between the Judgment of March 15, 2007, referred to hereinabove and the trial of this matter, the “visitation” awarded to Dustin by this Court was exercised not by Dustin but by his parents. In his defense, the necessity for this was his absence due to work but the fact remains that “intended visitation” for Dustin was in fact “actual visitation” for his parents and he took no steps to return Trenton to Jessica during this period of time or pursue avenues for “make-up visitation” for himself when he returned home.
(G) Either Dustin’s present and future employment prospects and income therefrom remain unknown to him and his mother (or uncertain at best) or he refused or was unable to be truthful with this Court during his testimony relative thereto.
(H) Dustin’s and his mother’s testimony that they have never been aware of attempts by Jessica to provide them with a list of medical expenses by certified mail and by regular mail is very suspect at best and completely unbelievable at worst. It is noted that Dustin’s mother in her testimony verified the address on the certified letter to be her “home address” and attempted deliveries were made by the United States Postal Service on: MARCH 6, 2008 MARCH 16, 2008 MARCH 27, 2008 Therefore, given the evidence presented to this Court on April 1, 2009, it is obvious that there has been a “material change in circumstances” regarding this case since the signing of the Judgment by this Court on March 15, 2007 . . . .
5 Dustin contends that although changes were observed by the trial court, they were not
serious enough to materially affect Trenton’s welfare.
Our review of the record supports the trial court’s determination that a material
change in circumstances occurred after the shared physical custody schedule was
established by the consent decree. Notably, Jessica explained that, after Trenton
returned from time with his father, he was troubled by allergies. She stated that
“[w]hen he comes back to me he usually is congested, stuffed up, sneezing after he
comes back from his father.” This alleged condition, Jessica asserted, was due to
cigarette smoking in the home of Dustin’s parents, where Dustin exercised his periods
of physical custody. She also alleged that Dustin’s parents’ dogs exacerbated the
condition. Jessica explained Trenton requires both prescription and over-the-counter
medication for his condition. While it is not questioned that Jessica knew that Dustin
lived at his parents’ home at the time the consent decree was entered into, the allergy
problems manifested themselves after Trenton returned from his scheduled stays with
his father. Although Dustin and his mother denied knowing that Trenton had
allergies, the trial court permissibly accepted Jessica’s testimony regarding Trenton’s
condition upon his return to her and her explanation that she takes Trenton to a doctor
regularly for his condition.
Furthermore, given the trial court’s determination that Trenton does, in fact,
suffer from allergies, it is of no small moment that Dustin and his mother denied
knowledge of any such condition, despite the fact that the child was in their home for
as much time as he was with Jessica and despite Jessica’s testimony that she made
Dustin aware of the allergies, the doctor’s visits, and the availability of prescribed
medication.
6 Also, Jessica explained that, generally, the shared physical custody
arrangement was not working and that she “believe[d] that [Trenton] needs to be in
a more stable environment.” She testified that:
I do see him struggle. His attitude changes. He has told me that he doesn’t like to go back there sometimes. I just want him where he, from week to week he knows where he’s going to be at. He has his own space, his stuff and he needs more security.
Jessica also explained that she sometimes sees Trenton lacking self-confidence as a
result of the arrangement.
Certainly, as accepted by the trial court, the lack of attention to Trenton’s
allergies and his changes in behavior, as testified to by Jessica, constitute a material
change in circumstances. Accordingly, this assignment lacks merit.
We note, also, that Dustin cites four cases in support of his argument that the
difficulties alleged by Jessica do not constitute material changes of circumstances.
See Weaver v. Weaver, 01-1656 (La.App. 3 Cir. 5/29/02), 824 So.2d 438; Long v.
Dossett, 98-1160 (La.App. 3 Cir. 4/28/99), 732 So.2d 773, writ denied, 99-1377 (La.
6/4/99), 745 So.2d 13; Page v. Page, 96-69 (La.App. 3 Cir. 5/8/96), 673 So.2d 1317.
Dustin argues that the circumstances in the identified cases posed a more serious
threat to the child’s welfare than in this case. However, it is important to note that
each of these cases involved an affirmation of the underlying trial court’s
determination to modify custody. Further, these cases specifically point out that a
trial court “is given vast discretion in custody matters because the trial court has a
better capacity than the appellate court to evaluate the testimony and credibility of
witnesses.” Page, 673 So.2d at 1319. In light of the courts’ reliance on this standard
of review in these cases, Dustin’s assertion that these cases require a reversal in the
present case is not persuasive.
7 Best Interest of the Child
Dustin next questions the trial court’s determination that modification of the
physical custody schedule would be in Trenton’s best interest. He points to La.R.S.
9:335(A)(2)(b), which provides that “[t]o the extent feasible and in the best interest
of the child, physical custody of the children should be shared equally.”
With regard to the best interest of the child analysis, La.Civ.Code art. 134
provides the factors to be considered as follows:
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
8 (11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
In its reasons for ruling, the trial court considered each of the above factors and
concluded that several of the factors revealed that a change from the shared physical
custody was in Trenton’s best interest. With regard to Article 134(3), the trial court
explained that:
[It] has a genuine and grave concern with regard to Dustin’s ability and desire to fulfill the obligations imposed in Item #3 relative to his capacity and disposition to provide Trenton with “medical care” while in his custody (lack of treatment for “allergies”) and “other material needs” (payment of expenses such as the cost of school tuition and medical expenses) while in Jessica’s custody. This Court does believe that Trenton’s basic needs are suitably met while Trenton is with Dustin (or with Dustin’s parents) but Dustin’s concern for Trenton’s well-being apparently ceases to exist when Trenton is with Jessica as demonstrated by Dustin’s refusal over a two (2) year period of time to assist in any manner whatsoever with expenses incurred by Jessica on behalf of Trenton (which expenses were required to be paid equally by Dustin and Jessica under the terms of the previous judgment rendered herein on March 15, 2007). This Court can find no evidence of any attempt by Dustin to make a legitimate effort to reimburse Jessica for one-half (½) of the expenses incurred for Trenton prior to the hearing in these proceedings pursuant to the Judgment of this Court dated March 15, 2007. This behavior is particularly troubling in that the above- referenced Judgment did not require Dustin to pay any child support and he has in fact chosen not even to assist in bearing his pro rata portion of the expenses of Trenton which he was required to do in said Judgment.
As was relevant to the material change of circumstances analysis, the trial court
also found that factor four, as it relates to the stability of the environment provided
by the parties, favored the change requested by Jessica. The court noted that the
parties and their families had been unable to live in harmony under the shared custody
arrangement and that Trenton must have “of necessity” sensed the conflict. The trial
9 court concluded that the “resultant upheaval in his life and constant change of
domicile” was not in the child’s best interest.
The trial court addressed factor six, the moral fitness factor, at some length, and
considered Dustin’s testimony regarding whether he agreed to a change of school for
Trenton and whether he agreed to assume a portion of the school tuition. The court
explained that, in a recorded telephone conversation on the subject, Dustin
“completely contradicted his previous sworn [trial] testimony[.]” The trial court
further described another aspect of Dustin’s testimony as “‘exaggerated if not
completely untruthful[.]’”
Finally, the trial court again found in favor of Jessica under factor twelve,
which focuses on “[t]he responsibility for the care and rearing of the child previously
exercised by each party.” La.Civ.Code art. 134(12). In this regard, the trial court
noted that Dustin’s responsibilities to the child “do not terminate” when he is with
Jessica and that Dustin demonstrated an “absolute refusal to honor his financial
obligations pursuant to the requirements” of the original custody decree.
Review of the record reveals support for the trial court’s determination to
modify the shared physical custody schedule and reveals no manifest error in the trial
court’s factual findings with regard to Trenton’s best interest. As noted by the trial
court, Dustin demonstrated a failure to satisfy his financial responsibilities to the
child under the previous order as he failed to reimburse Jessica for medical care and
a failure to acknowledge or demonstrate an appreciation of Trenton’s allergies.
Further, the record reveals no manifest error in the trial court’s determinations
regarding the contradictory nature of Dustin’s testimony regarding the payment of
10 Trenton’s school tuition and his statements made in a telephone conversation
recorded by Jessica and transcribed into the record.
For these reasons, the trial court’s factual findings were not manifestly
erroneous, and its ultimate determination that modification of the physical custody
schedule was appropriate was not an abuse of discretion. This assignment lacks
merit.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of this proceeding are assigned to the appellant, Dustin Wray Lemoine.
11 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-0861
PETERS, J.
I respectfully disagree with the majority decision in this matter. The majority
affirms based primarily on the trial court’s conclusion that Dustin knew or should
have known of Trenton’s allergy condition and that he should have taken steps to
accommodate and/or alleviate this condition. While there is mention of the allergy
issue in Paragraph B of the trial court’s reasons for judgment, the trial court’s clear
emphasis for change of circumstances was Dustin’s failure to meet his financial
obligations and his performance at trial. Had the financial obligation issue been pled
as a change of circumstances rather than as a separate cause of action, I would have
no trouble joining the majority in affirming the trial court judgment. However, absent
the pleading of the support issue as a change of circumstances, I find that the trial
court erred in considering this separate cause of action as authority for its finding of
a change of circumstances. To allow Jessica to benefit from this consideration would
promote trial by ambush.1 Additionally, I conclude that Jessica failed to establish a
change of circumstances, even as to the allergy condition.
The parties were married on February 26, 2000, separated for the final time on
March 20, 2006, and divorced on March 15, 2007. At the time of the divorce,
1 This is not the normal situation where the pleadings were expanded by the introduction of evidence on this point without objection. Dustin was obligated to face the support issue because it had been plead as a separate cause of action. Trenton was one month short of his seventh birthday. The custody issue was
addressed in both the divorce judgment and a second judgment dated July 17, 2007.2
The custody arrangement consented to was short lived. As pointed out by the
majority, before the end of 2007, Jessica had filed three separate pleadings seeking
to be named Trenton’s primary custodial parent, none of which alleged any specific
changes of circumstances. Although trial dates were set on all three pleadings, none
went to trial.3 Finally, on November 14, 2008, Jessica filed a petition asserting
specific instances of change of circumstances:
a) [Trenton] is forced to stay with his paternal grandparents for the majority of the time he is suppose to be exercising visitation with [Dustin];
b) [Trenton] has severe allergies yet he is constantly subjected to second hand smoke, animal hair, and pet dander while with [Dustin] and his family;
c) At the end of each visitation with [Dustin], [Jessica] has to bring [Trenton] to the doctor for treatment for allergies;
d) [Trenton] has been subjected to illegal behavior of [Dustin] and the paternal grandfather while hunting in Mississippi. Further, the child was instructed not to tell anyone;
e) Upon information and belief, the paternal grandfather has recently been arrested and charged for a felony theft and was dismissed from his job;
f) [Dustin] and/or the paternal grandparents refuse to talk to [Jessica] while [Trenton] is with them;
g) [Dustin] fails to pick up [Trenton] from school and fails to send lunch money with [Trenton];
h) [Trenton] has missed eleven (11) days of school unexcused while in the custody of [Dustin].
2 The record does not explain the need for the second judgment despite the finality of the first. However, the second judgment did not change anything with regard to the custody issues before us.
3 The record does not contain any minutes associated with these proceedings. As a completely separate cause of action, Jessica asserted that Dustin was in arrears
for over $5,179.00 relating to his child support obligation.4
In considering these assertions of change of circumstances, I note that the trial
court addressed only the second and third relating to Trenton’s allergy condition.
Silence on the remaining assertions is a rejection of those assertions. M. J. Farms,
Ltd. v. Exxon Mobil Company, 07-2371 (La. 7/1/08), 998 So.2d 16. I find no error
in the rejection of those assertions. With regard to Dustin’s work schedule and
parental assistance in caring for Trenton, Jessica was well aware of that situation
when they divorced. Furthermore, by the time of trial, Dustin was no longer working
offshore and this issue had resolved itself. The assertions that Dustin’s father had
committed an illegal act in the presence of Trenton while hunting in Mississippi and
that he had been arrested and charged with a felony are not supported by any evidence
in the record, nor is the allegation that the parental grandparents refuse to talk to
Jessica while Trenton is with them, or that Trenton missed eleven unexcused days
from school while in Dustin’s custody. Finally, while it is disputed whether Dustin
fails to send school lunch money with Trenton while the child is in his custody, that
in itself does not arise to a material change of circumstances. Just as a parent’s failure
to receive visitation privileges does not justify a failure to pay child support, a
parent’s failure to support his child does not justify a change of custody. See Crooks
v. Crooks, 425 So.2d 385 (La.App. 3 Cir. 1982), Macaluso v. Macaluso, 509 So.2d
201 (La.App. 1 Cir. 1987), and Borden v. Borden, 550 So.2d 901 (La.App. 2 Cir.
1989).
4 Jessica did not request an arrearage judgment. Instead, she sought to have Dustin held in contempt of court.
3 The allergy issue is based almost exclusively on Jessica’s self-serving
testimony. The record contains no medical evidence to support her allegations, and
the only evidence of medical expenses is a lump sum figure of $444.00 in a letter
from her to Dustin dated January 28, 2009. There is nothing in the letter to suggest
whether this amount is entirely for allergy treatment or includes costs of other
medical treatments. In any event, this amounts to less than $30.00 per month which
would seem much less than one would expect for by-weekly visits to a specialist.
Furthermore, Trenton’s allergy condition, to whatever extent it may exist, was present
in 2007, and before. Therefore, it cannot be used as a basis for a change of
circumstances. See Cooley v. Cooley, 94-251 (La.App. 3 Cir. 10/5/94), 643 So.2d
408.
In its reasons for judgment, the trial court expounded on the allegations of
Jessica’s petition in reaching its conclusion by pointing out the obvious inconsistent
statements and blatant falsehoods in Dustin’s testimony. While Dustin’s performance
at trial, as described by the trial court, is unacceptable and inexcusable, it related to
the separate support issue and not to the change of circumstances issue. His foolish
actions do not relieve Jessica of meeting her burden of proving the change of
circumstances she has alleged, nor do they expand the pleadings. Dustin’s fault is
in disobeying the support provisions of the July 17, 2007 judgment and in not
acknowledging his disobedience in his sworn testimony. However, that fault
addresses a separate cause of action before the court and, as our supreme court has
recognized, “[a]n award of custody is not a tool to regulate human behavior.” Everett
v. Everett, 433 So.2d 705, 708 (La.1983).
4 Because I find that Jennifer failed to establish a material change of
circumstances since rendition of the July 17, 2007 consent judgment, I would reverse
the trial court judgment.