Laurence v. Laurence

957 So. 2d 931, 2007 WL 1545700
CourtLouisiana Court of Appeal
DecidedMay 30, 2007
Docket2007-11
StatusPublished
Cited by5 cases

This text of 957 So. 2d 931 (Laurence v. Laurence) 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
Laurence v. Laurence, 957 So. 2d 931, 2007 WL 1545700 (La. Ct. App. 2007).

Opinion

957 So.2d 931 (2007)

Robert Lee LAURENCE, III
v.
Sarah Ruth (Self) LAURENCE.

No. 2007-11.

Court of Appeal of Louisiana, Third Circuit.

May 30, 2007.

*932 Scott Westerchil, Leesville, LA, for Plaintiff/Appellee: Robert Lee Laurence, III.

David C. Hesser, Alexandria, LA, for Defendant/Appellant: Sarah Ruth (Self) Laurence.

Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.

GREMILLION, Judge.

The defendant-appellant, Sarah Ruth Laurence, appeals the trial court's judgment modifying domiciliary status and ordering shared custody between her and her ex-husband, the plaintiff-appellee, Robert Lee Laurence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Robert filed for divorce in March 2005, and a default judgment against Sarah was granted in April 2005, with joint custody of Karlee and Aron Laurence being awarded and both Robert and Sarah being named co-domiciliary parents.[1] In July 2005, Sarah filed a petition for modification of custody requesting that she be named the primary custodial parent. Robert filed an answer and reconventional demand urging that he should be designated the primary custodial parent. The trial court ordered both parties and the children to undergo psychological evaluations. Following a trial in July 2006, the trial court maintained the joint custody award but named Robert as the primary custodial parent. The parties were to share custody on an alternating one week basis. Thereafter, Sarah fired her attorney and hired another who filed a motion for new trial, which was denied as premature, and she filed an alternative motion to reconsider, which was denied on the merits. Sarah now appeals.

*933 ISSUES

Sarah assigns as error the trial court's:

1. Refusal to grant the motion for new trial when it admitted that it applied the wrong legal standard for custody to a non-parent;
2. Refusal to grant the motion for new trial for custody of the sibling child;
3. Application of the wrong legal standard at trial for custody to a non-parent;
4. Application of the wrong legal standard at the trial for custody of the sibling; and
5. The grant of domiciliary status to Robert contrary to the weight of evidence and expert opinion.

LAW AND DISCUSSION

A trial court's determination of child custody is entitled to great weight on appeal and will not be disturbed absent a clear abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. When the trial court has made a considered decree of permanent custody, the petitioning party bears the difficult burden of proving that the continuation of the present custody situation is so deleterious to the child that it justifies a modification of the custody arrangement, or of proving by clear and convincing evidence that any harm likely to be caused by the change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). A considered decree is one in which evidence as to parental fitness has been received by the trial court. Oliver v. Oliver, 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081.

When a considered decree has not been rendered, but the parties have stipulated to an agreement without the court considering parental fitness, a lesser burden applies. In order to modify a custody arrangement, the movant must prove that 1) a material change in circumstances has occurred, and 2) that the new custody arrangement would be in the best interest of the child. Id.

In this case, the original custody arrangement was by default as Sarah did not appear in court, and a subsequent modification was stipulated to by the parties. Thus, the trial court did not hear any evidence as to parental fitness and the custody agreement is, therefore, not a considered decree. Thus, the latter burden of proof applies.

In Sarah's petition for modification of custody and child support she alleged that since the prior judgment the circumstances that had changed to warrant the modification were that: the current visitation schedule was unworkable as it is difficult on the children and is unstable; her work schedule changed and she was only working three nights per week as a nurse assistant; during the marriage she was the primary care taker of the children and only began working nights after the parties separated; Robert inserts the children into the disputes between them; Robert has violated the prior order on at least two occasions by refusing to surrender the children to her for visitation periods; Robert frequently leaves the children with his sister at night while he goes out; Robert threatens her that she will not see the children again; Robert told the children recently that he was going to kill her; and, Robert tried to sideswipe her vehicle with the children inside.

At trial, Sarah testified that she has remarried and that she and her new husband, Roland, purchased a home in Rosepine. She stated that her two children attend school in Hornbeck, which is now a forty-five minute drive from her home. Sarah stated that she would place the children *934 in school in Rosepine. She also said that she did not have any problem with the children having frequent visitation with Robert.

Sarah testified that Robert refers to her as a "slut", "whore", and a "bitch" in front of the children and that he has anger management problems. She stated that he has tried to run her off the road on more than one occasion. She testified that Robert has told the children that he was going to kill her. She further testified that she has been the children's primary care giver throughout their lives.

Sarah further testified that since she and Robert separated she has had five jobs, two of which she was fired from. She stated that she missed days from work because she was arrested for writing hot checks. Additionally, she testified that since the separation she has lived in three different locations and lied to Robert as to the address of one of her residences. She further testified that at one point, she did have a married roommate and her fourteen year old sister whose boyfriend would sleep over, but not on the nights when she had her children.

Sarah further testified that she did not tell her children that she had remarried until three weeks after the ceremony. She stated that her new husband owns three homes in Hayes, which is ninety miles from Leesville, where the children currently attend school. She stated that her husband rents out two of the homes. She said that they purchased a $1500 mobile home closer to Leesville so that she could reside closer to her family. However, Sarah denied that if she were to obtain primary custody of the children she would move back to Hayes with her husband. Sarah then described the multiple residences she has had since the divorce and the various people she has lived with in those residences. Sarah also admitted that two months prior to the trial she had been in jail for failing to pay a fine associated with a DWI she received in 2004. She admitted that Robert's home life has been much more stable than her own given that he resides in the home the children were raised in, has had the same job for multiple years, and the children can attend the same school. She admitted that they have both grown up in Hornbeck, but stated that she would like to move them to Rosepine. She also testified that she has no land line, but does have a cell phone.

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Cite This Page — Counsel Stack

Bluebook (online)
957 So. 2d 931, 2007 WL 1545700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laurence-v-laurence-lactapp-2007.