Fountain v. Waguespack

639 So. 2d 882, 1994 WL 321678
CourtLouisiana Court of Appeal
DecidedJuly 8, 1994
Docket93-CA-1077
StatusPublished
Cited by5 cases

This text of 639 So. 2d 882 (Fountain v. Waguespack) 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
Fountain v. Waguespack, 639 So. 2d 882, 1994 WL 321678 (La. Ct. App. 1994).

Opinion

639 So.2d 882 (1994)

John Turner FOUNTAIN
v.
Andre' WAGUESPACK, divorced wife of John Turner Fountain.

No. 93-CA-1077.

Court of Appeal of Louisiana, Fourth Circuit.

July 8, 1994.

*883 Allison Parker Burbank, Metairie, for plaintiff/appellee.

Ronald L. Courtade, Jr., Metairie, for defendant/appellant.

BARRY and KLEES, JJ., and GULOTTA, J. Pro Tem.

BARRY, Judge.

Ms. Waguespack appeals a judgment which named her ex-husband, John Fountain, the primary custodial parent of their three boys. Mr. and Mrs. Fountain were domiciled in Jefferson Parish during their marriage and she filed for a divorce in the 24th Judicial District. In a February 23, 1989 default judgment the parents were awarded joint custody of the three boys and Ms. Waguespack was designated the primary, domiciliary parent.[1] An April 18, 1991 consent judgment amended the default judgment and designated Mr. Fountain the primary domiciliary parent until June 1, 1992. The boys lived with their father during that 14 month period.

During that time Ms. Waguespack moved to Iberia Parish and Mr. Fountain moved to Plaquemines Parish. On June 1, 1992 Mr. Fountain returned the boys to their mother and they resided in Iberia Parish until August when they visited their father, his second wife and her children by a previous marriage. During the boys' stay in Plaquemines Parish Mr. Fountain filed a petition to modify custody and child support. Ms. Waguespack filed an exception of improper venue which was overruled on September 4, 1992. In a September 28, 1992 judgment the trial court granted joint custody, designated Mr. Fountain the primary custodian, and ordered Ms. Waguespack to pay $375 monthly child support.

Ms. Waguespack specifies as error:

1) denial of the venue exception;
2) allowing Mr. Fountain to relitigate custody without showing a change of circumstances or meeting the standard in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986);
*884 3) holding her to the Bergeron standard and denying her primary custody.

Mr. Fountain answered the appeal and specifies as error:

1) awarding joint custody instead of sole custody to him;
2) the amount of child support Ms. Waguespack is to pay.

VENUE

(Ms. Waguespack's Error # 1)

Ms. Waguespack did not file a supervisory writ as to the denial of her exception of venue, the appropriate procedure for review of that ruling. Blitch Architects, Inc. v. Avenue Partnership, 626 So.2d 394 (La.App. 4th Cir.1993); Henry v. Ford Motor Company, 519 So.2d 845 (La.App. 4th Cir.1988). In her petition and order for appeal Ms. Waguespack states that she is appealing the September 28, 1992 judgment which grants Mr. Fountain's rule to change custody. The notice of appeal shows that only the September 28, 1992 judgment is being appealed. Ms. Waguespack did not appeal the September 4, 1992 judgment on the venue exception and we have no basis to review that judgment.

Regardless, the assignment has no merit. Under La.C.C.P. art. 74.2 B the proper venue for a change of custody is "the parish where the person awarded custody is domiciled or in the parish where the custody decree was rendered." When there is joint custody the use of the singular "parish" in the article means that the parish of the domiciliary parent is the proper venue. St. Amant v. St. Amant, 564 So.2d 1312 (La.App. 1st Cir.1990), writ denied 567 So.2d 622 (La. 1990). The trial court accepted that "for purposes of determining the proper venue to modify previous custody decrees, the St. Amant rule is invalid."

It is unclear whether Mr. Fountain or Ms. Waguespack was the primary custodial or domiciliary parent at the time Mr. Fountain filed to change custody. According to the February 23, 1989 default judgment Mrs. Waguespack was the primary custodial parent from 1989 to 1991. By April, 1990 Mr. Fountain had physical custody of the boys. Pursuant to a consent judgment, Mr. Fountain became primary domiciliary parent from April 18, 1991 to June 1, 1992:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that John Turner Fountain be and he is hereby designated primary domiciliary parent and granted care and control of said minor children, subject to the reasonable and liberal visitation privileges in favor of Andre' Waguespack Fountain, until June 1, 1992.

The consent judgment makes no provision after June 1, 1992. Whether Ms. Waguespack or Mr. Fountain was the primary custodial domiciliary parent during the summer of 1992 (when Mr. Fountain's motion was filed) is impossible to determine. The court concluded that the language in the 1991 judgment did not revive the 1989 judgment (which provided that Ms. Waguespack was the domiciliary parent) when it ended on June 1, 1992. The court noted that the consent judgment in 1991 made Mr. Fountain the domiciliary parent.

Mr. Fountain had been the custodial parent until June 1, 1992. The children were with Mr. Fountain in Plaquemines Parish when he filed to change custody on August 6, 1992. Under these circumstances the denial of Ms. Waguespack's venue exception was not error.

This assignment has no merit.

CUSTODY

(Ms. Waguespack's Errors # 2 and 3)

Ms. Waguespack argues that the court incorrectly held her to the Bergeron standard to change custody and improperly weighed the evidence. Mr. Fountain counters that the trial court considered the best interest of the children despite the limited use of Bergeron language in its reasons.

The pre-1994 version of La.C.C. art. 131 A is applicable and provided that custody should be based on the best interest of the child.[2] La.C.C. art. 131 E provided that any *885 order under Paragraph A might be modified or terminated if the best interest of the child required modification. La.C.C. art. 134 provided that custody after an original award shall be granted to the parents in accordance with La.C.C. art. 131.

Traditionally a party seeking modification of a custody judgment had to show a change of circumstances materially affecting the child's welfare. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972). In Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986), the Louisiana Supreme Court set forth the burden of proof to change custody when there was a prior judgment:

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 child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. (Citations omitted).

The judgments here are not clear as to the custody of the boys after June 1, 1992. In the February 23, 1989 default judgment Ms. Waguespack was named primary custodial parent. Pursuant to an April 18, 1991 consent judgment, Mr. Fountain was named primary domiciliary parent "until June 1, 1992." In its reasons the trial court declared that the 1991 consent judgment ended as of June 1, 1992 and therefore both parents could relitigate custody without establishing a change of circumstances or meeting the Bergeron standard. In a footnote the court noted that Ms.

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Bluebook (online)
639 So. 2d 882, 1994 WL 321678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fountain-v-waguespack-lactapp-1994.