Ezell v. Kelley

513 So. 2d 454
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1987
Docket18921-CA
StatusPublished
Cited by7 cases

This text of 513 So. 2d 454 (Ezell v. Kelley) 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
Ezell v. Kelley, 513 So. 2d 454 (La. Ct. App. 1987).

Opinion

513 So.2d 454 (1987)

Danny L. EZELL, Plaintiff-Appellee,
v.
Sonni Lynn Ezell KELLEY, Defendant-Appellant.

No. 18921-CA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1987.
Rehearing Denied October 22, 1987.

*455 S.E. Lee, Jr. and James Stephens, Winnsboro, for defendant-appellant.

David F. Baughn, Vicksburg, Miss., for plaintiff-appellee.

Before MARVIN, JASPER E. JONES, FRED W. JONES, Jr., JJ.

JASPER E. JONES, Judge.

This is an action to modify a joint custody judgment. The plaintiff is Danny L. Ezell and the defendant is Sonni Lynn Ezell Kelley. Defendant appeals the judgment of September 3, 1986, which altered the joint custody plan contained in the January 21, 1986 divorce judgment contending the trial court erred in modifying the former joint custody plan. The principle change in the joint custody plan found in the judgment appealed was the granting to the father the custody of the two boys of the marriage during the nine months school year and granting the mother the custody during the summer months. We reverse.

The plaintiff and defendant were married in August, 1972 and they established their matrimonial domicile in Madison Parish. Two children, Stephen and Tyler, were born of the marriage. Plaintiff and defendant obtained a divorce on January 21, 1986 and entered a consent judgment for the joint custody of their children. The consent judgment awarded defendant physical custody during the nine months of the year the children would be in school and awarded plaintiff physical custody during the summer months.

Subsequent to the divorce, plaintiff moved to Ovando, Montana where he is employed as a hunting and camping guide and has remarried. He resides with his spouse and her daughter by a prior marriage. Defendant has also remarried.

On August 12, 1986, at the end of his physical custody period, plaintiff filed a rule to amend the joint custody plan to provide that he exercise physical custody during the school months and defendant exercise physical custody during the summer months. The trial court granted the change in custody as prayed for by plaintiff and defendant appealed.

The sole issue on appeal is whether the trial judge erred in amending the original custody judgment.[1]

Issue No. 1—Modification of The Original Custody Judgment

Defendant contends the evidence was insufficient to warrant a change in the original custody judgment. She argues she raised the children from birth, with the exception of the time plaintiff exercised physical custody during the summer of 1986, and has a very close relationship with the children. Defendant contends the trial judge based her decision largely upon the testimony of plaintiff's expert, Ms. Meriweather, who saw the children only one time. She argues Ms. Meriweather's recommendation that the children reside with the plaintiff during the school months was based upon erroneous information furnished by plaintiff and after talking to the children who had just returned to Louisiana after spending the summer in Montana.

Plaintiff contends the trial court considered defendant's relationship with the children and based its decision on whether to amend the original custody judgment on the entire record and not just upon the testimony of Ms. Meriweather.

The best interest of the child is the paramount consideration in a change of custody case. LSA-C.C. arts. 146(E) and *456 157(A).[2]Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Key v. Willard, 488 So.2d 1147 (La.App. 2d Cir.1986). To justify a change in custody, there must be a showing of a change in circumstances materially affecting the welfare of the child. Bergeron v. Bergeron, supra; Turner v. Turner, 455 So.2d 1374 (La.1984). Stability and continuity must be considered in determining what is in the best interest of the child. Everett v. Everett, 433 So.2d 705 (La.1983); Key v. Willard, supra. Upon appellate review, the determination of the trial judge is entitled to great weight and will not be disturbed absent a clear showing of abuse of discretion. Bergeron v. Bergeron, supra; Everett v. Everett, supra.

In the instant case, plaintiff testified that subsequent to the divorce he moved to Montana where he is employed as an outfitter, which is a hunting and camping guide. He stated an outfitter earns a gross income of $75,000.00 to $130,000.00 a year. Plaintiff married his second spouse and they live with her five year old daughter by a prior marriage, Carla, in a log house situated on 160 acres of land. He testified his children get along very well with his wife and Carla. Plaintiff stated he instituted the present action to change custody because his children indicated a desire to remain in Montana. He testified his wife was willing to care for the children and transport them to and from school, which is about ten miles from their home. Plaintiff stated he thought the divorce had adversely affected the children and they felt more comfortable with the atmosphere in Montana. On cross-examination, plaintiff testified his occupation requires him to be away from home for as long as ten days at a time. He stated the school the children would attend is a small school and one teacher teaches two classes. Plaintiff testified his wife would be required to transport the children to and from school in a four wheel drive during the winter months.

Ms. Patricia Meriweather, a psychiatric social worker, testified she interviewed the children, Stephen, age ten and Tyler, age eight, who stated they wanted to live with their father. Ms. Meriweather stated Stephen felt that his stepfather had taken his mother away from his father and stated his mother and grandmother say bad things about his father. Ms. Meriweather testified both children seem very comfortable with their living arrangements in Montana and enjoy working, hunting, and fishing with their father. She stated the children expressed concern about the fact their mother was traveling around Texas during the summer with their stepfather, who was picking cotton and they feared having to live with their grandmother if they returned to Louisiana. Ms. Meriweather stated the children did not want to live with their mother because of their animosity toward their stepfather. She testified the children stated their mother and stepfather drink and fight, unlike their father and stepmother and that their mother had kicked them and hit them with a broom and a belt. Ms. Meriweather, therefore, recommended that plaintiff be awarded custody during the school months.

Defendant testified she did not kick the children or hit them with a belt. She stated she is a housewife, she raised the children from birth and her present husband earns a good living and takes the children fishing and swimming. She stated the children and their stepfather enjoy a good relationship with each other. Defendant testified the children enjoy visiting with their grandparents who live nearby. She admitted drinking a wine cooler in front of the children, but testified she does not drink anymore and had never been intoxicated in *457 front of the children. Defendant testified she and her husband have a three bedroom house with a big yard in Baskin, and the children have a number of friends in the community. She denied telling the children bad things about their father. Defendant stated the children, upon their return from Montana, indicated a desire to live with her and her husband.

Ms. Davetta Mayo testified she lived by defendant in Winnsboro and saw the defendant and children daily.

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Bluebook (online)
513 So. 2d 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ezell-v-kelley-lactapp-1987.