Elliott v. Elliott

49 So. 3d 407, 2010 La.App. 1 Cir. 0755, 2010 La. App. LEXIS 1216, 2010 WL 3517555
CourtLouisiana Court of Appeal
DecidedSeptember 10, 2010
DocketNo. 2010 CU 0755
StatusPublished
Cited by11 cases

This text of 49 So. 3d 407 (Elliott v. Elliott) 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
Elliott v. Elliott, 49 So. 3d 407, 2010 La.App. 1 Cir. 0755, 2010 La. App. LEXIS 1216, 2010 WL 3517555 (La. Ct. App. 2010).

Opinion

WELCH, J.

12Carrie Barber Elliott appeals a judgment modifying the joint custody implementation plan previously agreed to between her and Eric J. Elliott. For reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The factual and procedural history of this case is more fully set forth in this court’s earlier opinion, Elliott v. Elliott, 2005-0181 (La.App. 1st Cir.5/11/05), 916 So.2d 221, writ denied, 2005-1547 (La.7/12/05), 905 So.2d 293. In sum, following the trial court’s denial of Carrie Elliott’s request to relocate the children’s residence to Natchitoches, Louisiana, the trial court modified the parties’ stipulated custodial arrangement by designating Eric Elliott as the children’s domiciliary parent and decreasing Carrie Elliott’s allocation of physical custody with the children. Carrie Elliott appealed the modification of the physical custody allocation, but did not challenge the ruling denying her request to relocate the children’s residence. On appeal, this court held, among other things, that Carrie Elliott’s notice to Eric Elliott of her proposed relocation with the children to Natchitoches was not a change in circumstances materially affecting the welfare of the children that would allow the court to revisit custody and re-measure the best interest of the child. Additionally, this court held that there was insufficient evidence in the record establishing that it was in the best interest of the children to alter the physical custodial arrangement so as to reduce the amount of time the children spent with their mother. Accordingly, this court reversed the judgment of the trial court insofar as it modified custody and vacated the joint custody implementation plan rendered in furtherance of that judgment.

Following this court’s decision, Carrie Elliott moved to Natchitoches without the children. On June 8, 2006, the parties stipulated to a modification of their joint custody implementation plan. The stipulated June 8, 2006 joint custody | ¡¡implementation plan provided that the parties would share joint legal custody of the minor children, that Eric Elliott would be designated as the domiciliary parent of the children, and that Carrie Elliott would have specific custodial periods. Essentially, Carrie Elliott’s regular custodial periods consisted of two consecutive weekends, which was followed by Eric Elliott having custody of the children for one weekend, and then the cycle would repeat. On the consecutive weekends, Carrie Elliott’s custodial periods would begin when school was dismissed on the day school adjourned for the weekend until Sunday (or until the day prior to school resuming). Carrie Elliott was responsible for picking the children up from school and returning the children for exchange at the Livonia Police Station. Carrie Elliott was also entitled to visit with the children in Pointe Coupee Parish one afternoon each week from 3:00 p.m. until 8:00 p.m. depending on their school schedule. Additionally, Carrie Elliott was awarded specific custodial periods during the Thanksgiving holidays, the Christmas holidays, Spring Break, Easter Weekend, Mother’s Day Weekend, the Mardi Gras holidays, the children’s birthdays and the summer.

[410]*410With regard to the exchange of the minor children, the joint custody implementation plan provided that except when Carrie Elliott picked up the children from school, on all holidays, summertime, and the first of Carrie Elliott’s consecutive weekends, she would exchange the children with Eric Elliott at the Texaco station/convenience store on Louisiana Highway 71 in Le-Compte, Louisiana, and on the second of her consecutive weekends, any mid-week visitations, and any occasional early pick up of the children to begin holiday visitation, she would exchange the children with Eric Elliott at the Livonia Police Station in Livonia, Louisiana.

After this plan was put into effect, Carrie Elliott, who had remarried, moved to Lindale, Texas due to her husband’s employment. In response to Carrie Elliott’s |4move to Texas, on June 13, 2008, Eric Elliott filed a rule to modify custody plan, asserting that there was a sufficient change in circumstances warranting a modification of the custody plan because of Carrie Elliott’s change in domicile and that the present plan was not in the best interest of the children, considering the distance between the domiciles of the parties. Eric Elliott further asserted that it was in the best interest of the children that he be granted sole custody, that the custody plan be modified, and that Carrie Elliott’s visitation schedule be adjusted. In response, Carrie Elliott filed a peremptory exception raising the objection of no cause of action with respect to Eric Elliott’s request and a motion for a custody evaluation.

A contradictory hearing was held on March 17, 2009. At the beginning of the hearing and after argument of counsel, the trial court denied Carrie Elliott’s motion for a custody evaluation and sustained her peremptory exception raising the objection of no cause of action as to Eric Elliott’s request for sole custody. After evidence was introduced and the matter submitted, the trial court modified the parties existing joint custody implementation plan to provide Carrie Elliott “visitation” with the children every other weekend, with one weekend visitation per month being allowed to take place in Lindale, Texas, and on the alternate weekend, Carrie Elliott’s visitation was to take place in Maringouin, Louisiana (or its surrounding area) or in Natchitoches (or its surrounding area). The trial court denied Carrie Elliott’s request for makeup days for the time she lost with her children due to the modification and ordered that the transportation exchange point would remain the same as set forth in the August 16, 2004 custody plan, and that for weekend visitation, Eric Elliott would meet Carrie Elliott at the exchange point every other time that Carrie Elliott had weekend visitation. A judgment in accordance with the trial court’s ruling was signed on December 1, 2009, and it is from this judgment that Carrie Elliott has appealed.

I,.ASSIGNMENTS OF ERROR

On appeal, Carrie Elliott asserts that the trial court erred in: (1) denying her motion for a custody evaluation; (2) failing to determine whether a change in circumstances materially affecting the welfare of the children had taken place; (3) finding that the modification of the parties joint custody implementation plan was in the best interest of the children; (4) ordering that Carrie Elliott have visitation with the children every other weekend, with only one of two weekends in the rotation being allowed to take place in Lindale, Texas; (5) denying Carrie Elliott any additional visitation days to makeup for the visitation lost due to the modification of her weekend visitation; and (6) determining that the extended weekend time should be considered a weekend visitation and not a holi[411]*411day visitation for the purposes of transportation exchange points.

CUSTODY EVALUATION

In Carrie Elliott’s first assignment of error, she contends that the trial court erred in denying her motion for a custody evaluation by a mental health professional. Her motion requested the evaluation on the basis that it was necessary to help determine if the children were affected by her move to Texas and what was in the best interest of the children.

Louisiana Revised Statutes 9:331 provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown.

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Cite This Page — Counsel Stack

Bluebook (online)
49 So. 3d 407, 2010 La.App. 1 Cir. 0755, 2010 La. App. LEXIS 1216, 2010 WL 3517555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-elliott-lactapp-2010.