Hillman v. Davis

834 So. 2d 594, 2002 WL 31758731
CourtLouisiana Court of Appeal
DecidedDecember 11, 2002
Docket02-0685
StatusPublished
Cited by9 cases

This text of 834 So. 2d 594 (Hillman v. Davis) 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
Hillman v. Davis, 834 So. 2d 594, 2002 WL 31758731 (La. Ct. App. 2002).

Opinion

834 So.2d 594 (2002)

Leslie Ray HILLMAN, Jr.
v.
Nancy R. DAVIS.

No. 02-0685.

Court of Appeal of Louisiana, Third Circuit.

December 11, 2002.
Rehearing Denied January 29, 2003.

*595 Terry W. Lambright, Attorney at Law, Leesville, LA, for Defendant/Appellant, Nancy R. Davis.

Bradley O'Neal Hicks, Dowden & Hicks, L.L.P., Leesville, LA, for Defendant/Appellee, Leslie Ray Hillman, Jr.

Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, and JIMMIE C. PETERS, Judges.

PETERS, J.

Nancy Renelle Davis appeals the trial court's judgment removing her as sole custodian of her minor child, Kelsi DeAnne Davis, awarding joint custody of the minor child to her and the child's father, Leslie Ray Hillman, Jr., and naming Mr. Hillman as the domiciliary custodial parent. For the following reasons, we reverse the judgment of the trial court.

DISCUSSION OF THE RECORD

Kelsi DeAnne Davis was born on November 8, 1991. Her parents, residents of Vernon Parish, Louisiana, were never married. The current litigation has as its roots Mr. Hillman's August 11, 1992 petition to establish his paternal relationship with Kelsi. This pleading ultimately resulted in a December 11, 1992 consent judgment wherein Mr. Hillman was recognized as Kelsi's natural father, Ms. Davis was granted sole custody subject to Mr. Hillman's specific visitation rights, and Mr. Hillman was ordered to pay Ms. Davis $200.00 per month as child support.

Sometime after Kelsi's birth, her parents went their separate ways and married other people. In 1997, Ms. Davis graduated from college and, in August of that same year, began teaching in the Vernon Parish school system. In January 1999, she left the public school system to spend more time with Kelsi. However, she continued to work as a substitute teacher in the Vernon Parish system. On December 3, 2000, Ms. Davis accepted employment as an education specialist with the Federal Bureau of Prisons (Bureau) in Buna, Texas. This career move prompted the litigation that is now before us.

According to Ms. Davis, her Vernon Parish home and Buna, Texas home are approximately two and one-half hours driving distance apart. She testified that her first year of employment with the Bureau constituted a probationary period during which she could be terminated at any time. While serving her probationary period, Ms. Davis chose to leave Kelsi in Vernon Parish in the weekday care of her parents and sister. Each weekend, Ms. Davis returned to Vernon Parish to be with her daughter.

On September 24, 2001, over nine months after Ms. Davis began her employment with the Bureau, Mr. Hillman filed a rule to show cause, seeking to have the trial court change the sole custody award to one of joint custody and award him the designation as custodial parent. In his pleading, Mr. Hillman complained that Kelsi was living with her aunt, and not Ms. Davis, and that, on occasion, he had been denied his right to exercise his visitation *596 rights with Kelsi. Ms. Davis answered the rule asserting that Kelsi's current living arrangements were temporary. Additionally, she reconvened to Mr. Hillman's demand, seeking, among other things, an increase in monthly child support, an order requiring Mr. Hillman to provide Kelsi with dental insurance, and permission to relocate Kelsi to Texas. The trial court originally scheduled the matter for hearing on October 30, 2001. Mr. Hillman had the matter rescheduled twice, first to December 18, 2001, and then to February 8, 2002.

In December 2002, Ms. Davis completed her one-year probationary period, was granted permanent employment status by the Bureau, and moved Kelsi to Buna, Texas. Although Mr. Hillman filed a general denial answer to Ms. Davis' reconventional demand, he did not file any additional pleadings complaining of the relocation.

At trial, Mr. Hillman testified vaguely concerning his denial of visitation privileges. While asserting that Ms. Davis had denied him visitation privileges on occasion, Mr. Hillman did not specify how often or under what circumstances the denials occurred. Ms. Davis disputed Mr Hillman's assertion in this regard and testified that Mr. Hillman exercised his visitation privileges regularly. Additionally, Mr. Hillman acknowledged that his two-week offshore employment shifts interfered with his visitation and that, on occasion, his wife or mother would care for Kelsi during his visitation periods.

Mr. Hillman's primary initial complaint related to the fact that Kelsi was not physically residing with her mother. He testified that once Ms. Davis moved Kelsi to Texas, his concerns changed to the question of his daughter's supervision while Ms. Davis worked. However, he acknowledged that he took no steps to investigate the Texas supervision situation. Ms. Davis testified that she decided to leave Kelsi with her parents and sister during her probationary period to avoid subjecting Kelsi to new and strange surroundings without the security of job permanency. She felt that Kelsi's best interest would be served by having her sister and parents care for her during the week so that she would remain in a familiar school and family environment pending a final decision on relocation. The short drive to Buna allowed Ms. Davis to return to Vernon Parish every weekend to be with her daughter. Additionally, according to Ms. Davis, Kelsi had begun to make new friends in her environment and had adjusted very well to the relocation. Ms. Davis testified that any supervision concerns of Mr. Hillman are not well-founded because Kelsi is supervised by a neighbor when she is working. Before agreeing to allow the neighbor to look after Kelsi, Ms. Davis questioned other neighbors, including a Texas state police officer, about the neighbor's reliability and received excellent reports.

In his testimony, Mr. Hillman also expressed concern about Kelsi's school performance and her health. Kelsi has been diagnosed with attention deficit disorder and, according to her mother, has problems with emotional issues. Both Kelsi's second grade teacher, Joy Nell Wiggins, and her third grade teacher, Melody Parker Woodham, testified that Kelsi had poor work habits and was inattentive in class. Both teachers discussed the problems with Ms. Davis, and, although Kelsi's situation did not improve, both found Ms. Davis to be interested in Kelsi's educational well-being. Kelsi attended Simpson Elementary School during this time. However, in the fall of 2002, when Kelsi began the fourth grade, Ms. Davis transferred her to Leesville Elementary School. This transfer had a positive effect, as her grades immediately improved. Additionally, *597 Ms. Davis testified that she had recognized Kelsi's problems early on and had enrolled her in psychological counseling both in Louisiana and Texas.

The trial court took the matter under advisement and issued its judgment on the rule on February 14, 2002. In granting a change in custody, the court concluded the following:

The current custody order was entered on December 4, 1992. It was a stipulated judgment and the Bergenon [sic] Rule does not apply to this hearing. In the 1992 decree the mother, Nancy R. Davis, was granted sole custody with the father having specified weekend, holiday and summer visitation.
The testimony established that the mother was the primary caretaker of Kelsi, age 10 years. The mother testified that the father consistently exercised his weekend visitation, some holiday visitation, and some summer visitation. He has been a big part of the child's life according to the mother.

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Bluebook (online)
834 So. 2d 594, 2002 WL 31758731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hillman-v-davis-lactapp-2002.