Duvalle v. Duvalle

660 So. 2d 152, 1995 WL 497558
CourtLouisiana Court of Appeal
DecidedAugust 23, 1995
Docket27,271-CA
StatusPublished
Cited by14 cases

This text of 660 So. 2d 152 (Duvalle v. Duvalle) 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
Duvalle v. Duvalle, 660 So. 2d 152, 1995 WL 497558 (La. Ct. App. 1995).

Opinion

660 So.2d 152 (1995)

Kris Lana Carter DUVALLE, Plaintiff-Appellant,
v.
Reginald A. DUVALLE, Defendant-Appellee.

No. 27,271-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1995.

*153 R. Wayne Smith, Ruston, for appellant.

Bobby L. Culpepper, Ruston, for appellee.

Before MARVIN, BROWN and WILLIAMS, JJ.

WILLIAMS, Judge.

The plaintiff, Reginald A. Duvalle, appeals from a trial court judgment denying his request for modification of joint custody and maintaining his former wife, Kris Lana Carter *154 Duvalle, as domiciliary custodian of their two minor children. For the reasons assigned below, we affirm the judgment, but remand to the trial court for the formulation and implementation of a joint custody plan between the parties.

FACTS

The parties were married in June 1986, in Indianapolis, Indiana. On May 28, 1993, Mrs. Duvalle was granted an uncontested divorce. The divorce judgment granted the parties joint custody of their two minor children, Lauryn and Reginald, ages six and one, respectively. Mrs. Duvalle was designated as the primary domiciliary parent, subject to Mr. Duvalle's right to reasonable visitation. Because Mr. Duvalle was unemployed, the judgment made no mention of child support.

On August 10, 1994, the final day of a four-month visitation period with Reginald, Mr. Duvalle filed the instant rule which he entitled "Petition for Modification of Custody." He alleged that the circumstances had changed substantially since the original 1993 custody decree, and sought to be designated as the primary domiciliary parent of both children. He also sought an immediate order awarding him the temporary custody of Reginald. Mrs. Duvalle answered the petition, seeking the return of Reginald, child support payments, and a specific visitation schedule.

The parties and their children had been living in Grambling, Louisiana, at the residence of Mrs. Duvalle's parents, Dr. and Mrs. Carter, since December 1991. Lauryn had also lived with her maternal grandparents between March 1989, and March 1990, while Mr. Duvalle was on a tour of duty in Cairo, Egypt, and Mrs. Duvalle was completing graduate studies in South Carolina.

After the parties separated, Mrs. Duvalle retained physical custody of the children and continued living with her parents. Mr. Duvalle remained in Grambling and completed a graduate degree program.

After the divorce, in the summer of 1993, the Carters left Grambling and moved to Marshall, Texas. Mrs. Duvalle and the children remained in Grambling and continued living in the same house. However, because Mrs. Duvalle's career required her to travel frequently, Lauryn, without objection from Mr. Duvalle, temporarily moved to Marshall in August 1993, to live with the Carters for the 1993-1994 school year. Both parties felt that Lauryn's move to Marshall was in her best interest. Lauryn adjusted well and maintained above-average grades in school.

In October 1993, Mr. Duvalle moved back to his hometown of Indianapolis, Indiana. He moved in with his parents in a two-bedroom apartment. He found a job at a small business development center and began his career as an international business and trade consultant. At the time of the hearing, he was earning approximately $2,400 per month.

During the 1993-1994 school year, Mrs. Duvalle visited Lauryn almost every weekend, unless she had to be away on business. Her weekend visits usually lasted from Friday to Sunday. Occasionally, she stayed until Monday morning to take Lauryn to school and talk with her teachers. Sometimes Mrs. Duvalle visited Lauryn during the middle of the week, and they talked to each other frequently on the telephone. Mrs. Duvalle also had extended visits with Lauryn during holidays.

Mr. Duvalle never visited Lauryn in Marshall. Between August 1993 and August 1994, he talked to her on the telephone approximately twelve times and wrote her a few letters. In the summer of 1993, while both he and Lauryn were still living in Grambling, they spent approximately two and one-half weeks together. After that, Lauryn saw Mr. Duvalle for one afternoon in the spring of 1994 when the parties met to return Reginald after a period of visitation. During the summer of 1994, Lauryn visited Mr. Duvalle in Indiana for a five-week period.

Reginald, on the other hand, spent a considerable amount of time with Mr. Duvalle. Reginald's first visit in Indiana occurred between mid-October 1993, and mid-December 1993. His second visit in Indiana began in early February 1994, and lasted until mid-March 1994. Soon after the Easter holiday in April 1994, Reginald went back to *155 Indiana and remained there throughout this proceeding.

While in Indiana, Reginald lived in the two-bedroom apartment with his father and paternal grandparents. He slept in one of the bedrooms, and Mr. Duvalle slept on a sofa. During one visit in Indiana, Reginald was hospitalized for four days for pneumonia. Mrs. Duvalle's insurance plan paid for most of Reginald's medical care and she paid the deductible amount.

In July 1994, Mrs. Duvalle resigned her job and accepted a position in Memphis, Tennessee. Her decision to accept the job in Memphis was based on both her desire for the children to be closer to Mr. Duvalle and a salary increase. Although, at the time of the hearing, Mrs. Duvalle was still living in Grambling, and had not yet relocated to Memphis, she testified that she will earn $34,000 at her new job.

After the hearing, the trial court rendered judgment rejecting Mr. Duvalle's demands and maintaining the original joint custody arrangement. The trial court ordered Mr. Duvalle to return Reginald to Mrs. Duvalle and to pay $517 per month in child support. The trial court further granted Mr. Duvalle visitation of three weeks during the summer and alternate major holidays consisting of Labor Day, Thanksgiving, Christmas Day, New Year's Day, Easter, Memorial Day and any spring break. From that judgment, Mr. Duvalle appeals.

DISCUSSION

Burden of Proof

In his first assignment of error, Mr. Duvalle alleges the trial court erred in that it inappropriately applied the heavy Bergeron rule to the facts of this case. He contends this case does not involve a considered decree and, therefore, he only had to prove that the circumstances had changed and that his proposed custody arrangement was in the best interest of the children.

In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the supreme court stated that in a case involving a modification of a considered decree of permanent custody, the burden of proof for the petitioning party is to show that the continuation of the present custody is so deleterious to the child so as to justify the modification, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id. at 1200. However, in a custody case, where no considered decree has been rendered, the burden of proof enunciated in Bergeron does not apply. Odom v. Odom, 606 So.2d 862, 865 (La.App. 2d Cir.), writ denied, 608 So.2d 153 (La. 1992). The petitioning party is only required to prove that a material change in circumstances occurred since the original decree and that the modification which he proposed is in the best interest of the child. Barnes v. Cason, 25,808 (La.App. 2d Cir. 05/04/94), 637 So.2d 607, 611, writ denied, 94-1325 (La. 09/02/94), 643 So.2d 149; Pulley v. Pulley, 587 So.2d 116, 119 (La.App. 2d Cir.1991).

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Bluebook (online)
660 So. 2d 152, 1995 WL 497558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duvalle-v-duvalle-lactapp-1995.