Hebert v. Blanchard

702 So. 2d 1102, 97 La.App. 3 Cir. 550, 1997 La. App. LEXIS 2633
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
DocketNo. 97-550
StatusPublished
Cited by11 cases

This text of 702 So. 2d 1102 (Hebert v. Blanchard) 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
Hebert v. Blanchard, 702 So. 2d 1102, 97 La.App. 3 Cir. 550, 1997 La. App. LEXIS 2633 (La. Ct. App. 1997).

Opinion

| iPETERS, Judge.

This appeal arises out of a motion filed by John Darren Blanchard to have the domiciliary custody of his minor children changed from his former wife, Michelle Hebert, to himself and to require her to pay him child support. The motion was met by a rule to increase the existing child support award. All three issues were tried together, and the trial court rejected Mr. Blanchard’s demands but reserved ruling on Ms. Hebert’s demand pending further proceedings. Mr. Blanchard has appealed.

We first note that this matter is not properly before us because it is not an ap-pealable judgment. Only final judgments are appealable. La.Code Civ.P. art.2083. “A judgment that determines the merits in [1104]*1104whole or in part is a final judgment.” La. Code Civ.P. art. 1841. However, it is intended that there be only one judgment unless the partial judgment fits within one of the categories provided by La.Code RCiv.P. art. 1915(A).1 This judgment does not. However, because we find that the trial court erred in not changing custody from Ms. Hebert to Mr. Blanchard, we choose to invoke the authority of La.Code Civ.P. art. 2164 and “render [a] judgment which is just, legal, and proper upon the record on appeal.” To do otherwise would result in a remand of the matter for rendition of a judgment on Ms. Hebert’s demand for additional child support and a new appeal, after which we would reach the same result as we reach in this opinion. More importantly, the delay would maintain the children in a custody situation which is not in their best interest.

John Darren Blanchard and Michelle Hebert were married on August 14, 1982. Two children were bom of that marriage: Blake, born September 3, 1985, and Heather, born August 11, 1987. On April 21, 1989, Ms. Hebert filed for a legal separation. The judgment of separation awarded the parents joint custody of their children, with Ms. Hebert being named as the primary custodial parent and Mr. Blanchard being ordered to pay child support in the amount of $100.00 per child per month.

The parties were divorced by a consent decree signed on February 5, 1990. In that judgment, the joint-custody arrangement was maintained with some modification and Mr. Blanchard’s support obligation was increased to $150.00 per child per month.

On January 24, 1997, Mr. Blanchard filed the instant motion for a change of custody and for child support. Ms. Hebert responded to that motion by filing a rule to increase the existing child support obligation. Trial on the three issues was held on February 18, 1997. On February 26, 1997, the trial court signed a judgment wherein it rejected Mr. Blanchard’s demands but reserved ruling on Ms. Hebert’s request for Ran increase in child support. The judgment was not filed until March 3, 1997. Mr. Blanchard has appealed.

Prior to their separation, Mr. Blanchard, Ms. Hebert, and the children resided in their three-bedroom brick home on Cypress Street in Abbeville, Louisiana. When the separation occurred, Ms. Hebert and the children initially moved in with her mother, and Mr. Blanchard remained in the Cypress Street home. Thereafter, Ms. Hebert moved to an apartment complex in Abbeville and then to a house on South Guegnon Street in the same city.

Sometime in 1990, Ms. Hebert and the children moved into a fourth residence located on Maude Avenue in Abbeville. She and the children shared that home with her then lover, Shannon Broussard. In 1991, Shannon Broussard, Ms. Hebert, and the children moved into a larger house, and in August of 1992, they moved into a house in Erath, Louisiana, which Shannon Broussard had purchased. Ms. Hebert remained with Shannon Broussard until June or July of 1993.

While Shannon Broussard worked offshore, Ms. Hebert began a sexual relationship with Mike Broussard. This unfaithfulness on her part resulted in the breakup of the relationship between Ms. Hebert and Shannon Broussard. Immediately after the separation, Ms. Hebert and the children moved back to her mother’s residence. However, in February of 1994, she and the children moved again — this time to a house on Sampson Street in Abbeville, where she and Mike Broussard began to live in open concubinage.

In October of 1995, Ms. Hebert, Mike Broussard, and the children moved to the house on Maude Avenue that she had previously shared with Shannon Broussard. Although Ms. Hebert and the children were still living on Maude Avenue at the time of the trial of the rules, Mike Broussard had disappeared from the scene, and Alan UCharles was living with Ms. Hebert.

Blake started school while Ms. Hebert and Shannon Broussard were living together on Maude Avenue. Blake attended Herod Elementary School that first year, and the next year he attended Dozier Elementary School [1105]*1105in Erath. After a subsequent move, he was enrolled in Eaton Park School the next year. Heather began her education at Eaton Park that same year. Although the children started the next year at Eaton Park, shortly thereafter they transferred to Herod Elementary, where they were enrolled at the time of trial.

Each custody case must be decided on its own particular facts and circumstances, and the paramount goal is to do what is in the best interest of the minor children. La.Civ.Code art. 131; Muller v. Muller, 94-281 (La.App. 3 Cir. 10/5/94); 643 So.2d 478. The trial court is vested with a vast amount of discretion in deciding child custody eases, and its decision should be given great deference on appellate review. Bagents v. Bagents, 419 So.2d 460 (La.1982).

In Beard v. Beard, 599 So.2d 486, 488 (La.App. 3 Cir.1992), this court defined the burden of proof in custody modification cases as follows:

In custody modification cases, when a party attempts to modify a “considered decree”, he bears the heavy burden of proving that the continuation of 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. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).
When no evidénee is adduced at the district court level prior to the entry of the joint custody order which is sought to be modified, that joint custody decree is not a “considered decree” within the meaning of Bergeron, supra. In this situation, the heavy burden of proof is not applicable, but the moving party must still prove a material change in circumstances since the entry of the original decree and that the modification proposed is in the best interest of the child. McGee v. McGee, 552 So.2d 576 (La.App. 2d Cir.1989).

|5In the ease before us, the original joint custody decree signed on February 5, 1990, was not a “considered decree,” and therefore, Mr. Blanchard’s burden is to prove by a preponderance of the evidence that a material change in circumstances has occurred and that the modification proposed is in the best interest of the children.

We find no difficulty in concluding that Mr. Blanchard established numerous, material changes of circumstances. Since the divorce in February of 1990, he has remarried and has basically stabilized his life. To the contrary, Ms. Hebert’s personal situation seems more complicated than that which existed at the time of the divorce.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Michael Craig v. Shari Renee Bishop
Louisiana Court of Appeal, 2019
Boesch v. Boesch
210 So. 3d 937 (Louisiana Court of Appeal, 2017)
Mable Dowden, Et Ux. v. Cassie Catts
Louisiana Court of Appeal, 2017
Tracie F. v. Francisco D.
188 So. 3d 231 (Supreme Court of Louisiana, 2016)
Bonnette v. Bonnette
185 So. 3d 321 (Louisiana Court of Appeal, 2016)
Mizell v. Stone
181 So. 3d 842 (Louisiana Court of Appeal, 2015)
Rozetta Mizell v. Juston Stone
Louisiana Court of Appeal, 2015
Sorrells v. Sorrells
178 So. 3d 288 (Louisiana Court of Appeal, 2015)
Joshua Amos v. Shawana Semien
Louisiana Court of Appeal, 2015
Steele v. Ashworth
151 So. 3d 177 (Louisiana Court of Appeal, 2014)
Quinton D. Steele v. Jasmine S. Ashworth
Louisiana Court of Appeal, 2014
McManus v. McManus
127 So. 3d 1093 (Louisiana Court of Appeal, 2013)
Harvey v. Harvey
133 So. 3d 1 (Louisiana Court of Appeal, 2013)
Trent Harvey v. Kelly (Singleton) Harvey
Louisiana Court of Appeal, 2013
Francois v. Leon
834 So. 2d 1109 (Louisiana Court of Appeal, 2002)
Newcomb v. Newcomb
810 So. 2d 1269 (Louisiana Court of Appeal, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
702 So. 2d 1102, 97 La.App. 3 Cir. 550, 1997 La. App. LEXIS 2633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-blanchard-lactapp-1997.