STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1049
JAMES RANDALL MAXWELL
VERSUS
JENNIFER STANLEY (LAVIGNE)
********** APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 41569-B HONORABLE LEO BOOTH, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Billy H. Ezell, and Shannon J. Gremillion, Judges.
REVERSED AND REMANDED.
Mark A. Holden 5637 Superior Drive, Suite B-5 Baton Rouge, LA 70816 (225) 296-0018 COUNSEL FOR APPELLANT: Jennifer Stanley (Lavigne)
Jack H. McLemore, Jr. 200 Advocate Row, Suite B Vidalia, LA 71373 (318) 336-9189 COUNSEL FOR APPELLEE: Jason Randall Maxwell COOKS, Judge.
In this child custody case, the mother appeals the trial court’s judgment which
modified the stipulated custodial agreement to name the father as the primary
domiciliary parent. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Jason Randall Maxwell and Jennifer Stanley Lavigne are the biological parents
of the minor child, Brooklyn Claire Maxwell, who was born on March 1, 2006. The
two were never married but were living together in Vidalia, Louisiana at the time of
birth. In May of 2007, Jennifer moved into her mother’s home in Natchez,
Mississippi. In March of 2009, Jennifer married Michael Lavigne. In July of 2009,
she moved to Prairieville, Louisiana where Michael resided.
On June 30, 2006, both Jason and Jennifer filed a “Petition for Determination
of Custody, Child Support, Visitation, and Incidental Matters.” The court signed an
Order providing the parties had joint custody, with Jennifer designated as the
domiciliary parent. Visitation was set forth with an evenly distributed holiday
visitation schedule. Jason was also ordered to pay $200.00 per month in child
-1- support and to maintain Brooklyn on his insurance. The parties were ordered to split
all medical and dental expenses not covered by insurance.
On May 21, 2007, Jason, filed a “Petition to Amend Petition for Determination
of Custody, Child Support, Visitation, and Incidental Matters and Order.” This
petition requested a modification of the visitation schedule to specifically set forth
that Jason would be granted visitation with Brooklyn every other weekend beginning
at 5:00 p.m. on Fridays and ending at 5:00 p.m. on Sundays. An Order was signed
setting a Rule to Show Cause on the matter for June 11, 2007. No hearing was held.
On August 8, 2007, a “Second Petition to Amend Petition for Determination
of Custody, Child Support, Visitation, and Incidental Matters and Order” was filed
by Jason. It proposed to modify the custodial arrangement so that each party would
have physical custody of Brooklyn for two consecutive weeks at a time. A hearing
was set for September 13, 2007. On that date, the parties entered into a consent
judgment in which they were awarded equal shared custody with Jennifer named the
domiciliary parent. The visitation schedule was agreed upon.
On March 2, 2010, Jason filed a “Petition to Modify Custody, requesting a
modification of the custodial arrangement so that Jason would be named the
domiciliary parent of Brooklyn subject to reasonable visitation for Jennifer. The
proposed visitation schedule provided for visitation with Jennifer every other
weekend and an even split for holidays. The reason given for the requested
-2- modification was Jennifer’s relocation to Prairieville, along with alleged health and/or
hygiene problems that occurred while Brooklyn was with Jennifer.
On March 24, 2010, the matter was continued on a motion from Jennifer, and
a hearing date was set for April 26, 2010. Jennifer also submitted “Interrogatories
and a Request for Production” to Jason on March 28, 2010. On April 12, 2010,
Jennifer filed an “Answer, Exceptions, and Reconvention” in the matter. Exceptions
of No Right and No Cause of Action were filed alleging Jason’s “Petition to Modify
Custody failed to allege a material change in circumstances necessary for a change
of custody. In her reconventional demand, Jennifer requested back due child support.
On April 19, 2010, Jason submitted answers and responses to the interrogatories and
request for production made by Jennifer.
The matter proceeded to trial on April 26, 2010, however, due to the district
court’s docket, it was continued to May 10, 2010. The matter was heard on May 10,
2010. The district court took the matter under advisement, and requested post-trial
memorandum from the parties. The district court rendered judgment on June 17,
2010, denying Jennifer’s exceptions of no right and no cause of action. Joint custody
was maintained, but custody was modified to name Jason primary domiciliary parent,
with specific visitation fixed for Jennifer. Although the parties stipulated that both
support and modification of custody and visitation would not take place until school
started, the trial court disregarded this stipulation and terminated child support to
-3- Jennifer prior to school beginning and awarded the tax dependency exemption to
Jason prior to school beginning.
Jennifer has appealed the judgment, asserting the trial court erred in failing to
continue her as domiciliary parent and in terminating child support paid to her
effective on June 16, 2010 despite the stipulation to the contrary. Jennifer also
argued the trial court erred in excluding the testimony of her husband, Michael
Lavigne, because he was not included on her witness list prior to trial.
ANALYSIS
There is a distinction between the burden of proof required to change a custody
plan ordered pursuant to a considered decree and the burden of proof required to
change a custody plan ordered pursuant to a non-considered decree (or stipulated
judgment). Once a considered decree of permanent custody has been rendered by a
court, the proponent of a change of custody bears the heavy burden of proving that
a change of circumstances has occurred, such that the continuation of the present
custody arrangement is so deleterious to the child as to justify a modification of the
custody decree, or 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). In cases where the underlying custody decree is a stipulated
judgment, and the parties have consented to a custodial arrangement with no evidence
as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is
-4- inapplicable. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d
48, writ denied, 95-1488 (La. 9/22/95), 660 So.2d 478. Rather, a party seeking a
modification of a consent decree must prove that there has been a material change of
circumstances since the original (or previous) custody decree was entered and that the
proposed modification is in the best interest of the child. Id. In the case before us,
there was no considered decree, thus the heavier Bergeron standard does not apply
and Jason must only prove that the proposed change to him as the domiciliary parent
was in the best interests of Brooklyn.
Louisiana Civil Code Article 131 requires that the award of custody be based
on the best interest of the child. The trial court also recognized that when parents
cannot agree as to a custody arrangement, La.Civ.Code art.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-1049
JAMES RANDALL MAXWELL
VERSUS
JENNIFER STANLEY (LAVIGNE)
********** APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 41569-B HONORABLE LEO BOOTH, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Billy H. Ezell, and Shannon J. Gremillion, Judges.
REVERSED AND REMANDED.
Mark A. Holden 5637 Superior Drive, Suite B-5 Baton Rouge, LA 70816 (225) 296-0018 COUNSEL FOR APPELLANT: Jennifer Stanley (Lavigne)
Jack H. McLemore, Jr. 200 Advocate Row, Suite B Vidalia, LA 71373 (318) 336-9189 COUNSEL FOR APPELLEE: Jason Randall Maxwell COOKS, Judge.
In this child custody case, the mother appeals the trial court’s judgment which
modified the stipulated custodial agreement to name the father as the primary
domiciliary parent. For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
Jason Randall Maxwell and Jennifer Stanley Lavigne are the biological parents
of the minor child, Brooklyn Claire Maxwell, who was born on March 1, 2006. The
two were never married but were living together in Vidalia, Louisiana at the time of
birth. In May of 2007, Jennifer moved into her mother’s home in Natchez,
Mississippi. In March of 2009, Jennifer married Michael Lavigne. In July of 2009,
she moved to Prairieville, Louisiana where Michael resided.
On June 30, 2006, both Jason and Jennifer filed a “Petition for Determination
of Custody, Child Support, Visitation, and Incidental Matters.” The court signed an
Order providing the parties had joint custody, with Jennifer designated as the
domiciliary parent. Visitation was set forth with an evenly distributed holiday
visitation schedule. Jason was also ordered to pay $200.00 per month in child
-1- support and to maintain Brooklyn on his insurance. The parties were ordered to split
all medical and dental expenses not covered by insurance.
On May 21, 2007, Jason, filed a “Petition to Amend Petition for Determination
of Custody, Child Support, Visitation, and Incidental Matters and Order.” This
petition requested a modification of the visitation schedule to specifically set forth
that Jason would be granted visitation with Brooklyn every other weekend beginning
at 5:00 p.m. on Fridays and ending at 5:00 p.m. on Sundays. An Order was signed
setting a Rule to Show Cause on the matter for June 11, 2007. No hearing was held.
On August 8, 2007, a “Second Petition to Amend Petition for Determination
of Custody, Child Support, Visitation, and Incidental Matters and Order” was filed
by Jason. It proposed to modify the custodial arrangement so that each party would
have physical custody of Brooklyn for two consecutive weeks at a time. A hearing
was set for September 13, 2007. On that date, the parties entered into a consent
judgment in which they were awarded equal shared custody with Jennifer named the
domiciliary parent. The visitation schedule was agreed upon.
On March 2, 2010, Jason filed a “Petition to Modify Custody, requesting a
modification of the custodial arrangement so that Jason would be named the
domiciliary parent of Brooklyn subject to reasonable visitation for Jennifer. The
proposed visitation schedule provided for visitation with Jennifer every other
weekend and an even split for holidays. The reason given for the requested
-2- modification was Jennifer’s relocation to Prairieville, along with alleged health and/or
hygiene problems that occurred while Brooklyn was with Jennifer.
On March 24, 2010, the matter was continued on a motion from Jennifer, and
a hearing date was set for April 26, 2010. Jennifer also submitted “Interrogatories
and a Request for Production” to Jason on March 28, 2010. On April 12, 2010,
Jennifer filed an “Answer, Exceptions, and Reconvention” in the matter. Exceptions
of No Right and No Cause of Action were filed alleging Jason’s “Petition to Modify
Custody failed to allege a material change in circumstances necessary for a change
of custody. In her reconventional demand, Jennifer requested back due child support.
On April 19, 2010, Jason submitted answers and responses to the interrogatories and
request for production made by Jennifer.
The matter proceeded to trial on April 26, 2010, however, due to the district
court’s docket, it was continued to May 10, 2010. The matter was heard on May 10,
2010. The district court took the matter under advisement, and requested post-trial
memorandum from the parties. The district court rendered judgment on June 17,
2010, denying Jennifer’s exceptions of no right and no cause of action. Joint custody
was maintained, but custody was modified to name Jason primary domiciliary parent,
with specific visitation fixed for Jennifer. Although the parties stipulated that both
support and modification of custody and visitation would not take place until school
started, the trial court disregarded this stipulation and terminated child support to
-3- Jennifer prior to school beginning and awarded the tax dependency exemption to
Jason prior to school beginning.
Jennifer has appealed the judgment, asserting the trial court erred in failing to
continue her as domiciliary parent and in terminating child support paid to her
effective on June 16, 2010 despite the stipulation to the contrary. Jennifer also
argued the trial court erred in excluding the testimony of her husband, Michael
Lavigne, because he was not included on her witness list prior to trial.
ANALYSIS
There is a distinction between the burden of proof required to change a custody
plan ordered pursuant to a considered decree and the burden of proof required to
change a custody plan ordered pursuant to a non-considered decree (or stipulated
judgment). Once a considered decree of permanent custody has been rendered by a
court, the proponent of a change of custody bears the heavy burden of proving that
a change of circumstances has occurred, such that the continuation of the present
custody arrangement is so deleterious to the child as to justify a modification of the
custody decree, or 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). In cases where the underlying custody decree is a stipulated
judgment, and the parties have consented to a custodial arrangement with no evidence
as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is
-4- inapplicable. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d
48, writ denied, 95-1488 (La. 9/22/95), 660 So.2d 478. Rather, a party seeking a
modification of a consent decree must prove that there has been a material change of
circumstances since the original (or previous) custody decree was entered and that the
proposed modification is in the best interest of the child. Id. In the case before us,
there was no considered decree, thus the heavier Bergeron standard does not apply
and Jason must only prove that the proposed change to him as the domiciliary parent
was in the best interests of Brooklyn.
Louisiana Civil Code Article 131 requires that the award of custody be based
on the best interest of the child. The trial court also recognized that when parents
cannot agree as to a custody arrangement, La.Civ.Code art. 134 provides twelve
relevant factors the court “shall” consider in determining the best interest of the child.
Those factors are as follows:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
-5- (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
After a thorough review of the record, we note that at the conclusion of the
May 10, 2010 hearing, the matter was taken under advisement by the trial court and
post-trial memoranda requested. The trial court issued its judgment on June 17, 2010.
No written reasons for judgment were issued. Thus, we have no way of knowing
what the trial court based its ruling on and whether it based its decision on the Article
134 factors, as it is required to do. We note in Leger v. Leger, 03-419, p. 1 (La.App.
3 Cir. 7/2/03), 854 So.2d 955, 956, this court suggested in a portion of its opinion
-6- entitled “Failure to Address Factors with Particularity,” that we cannot assume
that a trial court actually considered factors based simply on the fact there may be
evidence in the record that would have allowed it to do so. Further, the trial court
erroneously disregarded the agreed-upon stipulation between the parties and
terminated child support to Jennifer prior to school beginning and awarded Jason the
tax dependency exemption.
We cannot properly perform our appellate review under the circumstances; and,
therefore, we elect to remand this case to the trial court for another hearing to
determine the best interests of the child based on factors set out in Article 134. See
C.J.M. v. C.L., 08-128 (La.App. 3 Cir. 6/5/08), 987 So.2d 317, (wherein this court
remanded the case back to the trial court due to its failure to properly discuss any of
the factors of Article 134 in its custody determination.)
The plaintiffs remaining assignments of error are rendered moot.
DECREE
For the above reasons, the judgment of the trial court is reversed and this matter
is remanded to the trial court to proceed in accordance with this opinion. Costs of
this appeal are assessed equally between the parties.
-7-