STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 23-763
LEANNE BRIDGES
VERSUS
JAMES BRIDGES
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 268,120 HONORABLE LOWELL C. HAZEL, DISTRICT JUDGE
GUY E. BRADBERRY JUDGE
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, D. Kent Savoie, Van H. Kyzar, Candyce G. Perret, Jonathan W. Perry, Sharon D. Wilson, Charles G. Fitzgerald, Gary J. Ortego, Ledricka J. Thierry, Guy E. Bradberry, and Wilbur L. Stiles, Judges.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Pickett, J., concurs in part and dissents in part for the reasons assigned by Judge Stiles. Savoie, J., concurs in part and dissents in part for the reasons assigned by Judge Stiles. Kyzar, J., concurs in part and dissents in part for the reasons assigned by Judge Stiles. Perry, J., concurs in part and dissents in part for the reasons assigned by Judge Stiles. Stiles, J., concurs in part, dissents in part, and assigns reasons. Howell D. Jones, IV Adam G. Huddleston Carolyn O. Hines Jones Law Partners P.O. Box 14558 Alexandria, LA 71315 (318) 442-1515 COUNSEL FOR PLAINTIFF/APPELLEE: Leanne Bridges
Kenneth A. Doggett, Jr. P.O. Drawer 13498 Alexandria, LA 71315 (318) 487-4251 COUNSEL FOR DEFENDANT/APPELLANT: James Bridges EN BANC.
James Bridges appeals a trial court judgment sustaining an exception of no
cause of action filed by his ex-wife, Leanne Bridges, after he filed a motion to
modify a physical custody schedule, seeking an additional three days per month of
time with his two minor daughters. Due to a conflict of rendered decisions regarding
the application of the law on visitation/physical custody within this court when joint
custody has been granted to the parents, this court renders the following en banc
decision.
FACTS
James and Leanne were married on October 27, 2007. Two daughters were
born of the marriage in 2011 and 2015. On May 19, 2020, the parties physically
separated. The parties were divorced on November 8, 2021. Although not a part of
the record before this court, both parties agree that on December 16, 2021, a
considered custody decree was rendered awarding the parties joint custody, with
Leanne designated the domiciliary parent. Judgment was signed on March 23, 2022.
According to the pleadings, James was granted visitation every other weekend with
the girls.
Prior to rendering the considered custody judgment, the trial court noted that
James was recovering from the use of methamphetamine and marijuana. It was also
noted that James exhibited destructive verbal behavior in front of the children.
On June 20, 2023, James filed a motion to modify the physical custody
schedule to increase his time with the girls by three days a month. In addition, he
sought the removal of a vague and arbitrary provision in the judgment, sought a rule
for contempt, and asked for a child support credit, should he be granted additional time with his daughters. James stated that he had provided three years of negative
hair follicle tests.
In response, Leanne filed an exception of no cause of action. In her exception,
Leanne alleged that the allegations made by James were insufficient to support a
modification of custody under the standard announced in Bergeron v. Bergeron, 492
So.2d 1193 (La.1986), since he sought to modify a prior considered decree. In
opposition, James argued that courts are allowed to tweak a physical custody
schedule even when the evidence will not support a change of custody under the
Bergeron standard.
A hearing on the exception of no cause of action was held on August 28, 2023.
A judgment was signed on September 12, 2023, granting the exception of no cause
of action and denying the motion for contempt. James then filed the present appeal.
APPLICABLE STANDARD
On appeal, James’ sole assignment of error is that the trial court erred in
granting Leanne’s exception of no cause of action. He argues that the heavy burden
of proof for modification of custody pronounced in Bergeron does not apply when
a party only seeks to modify the nature of the joint or sole physical custody
arrangment under a considered joint custody decree.
In Bergeron, the father sought sole custody after the mother was previously
awarded sole custody in the divorce judgment. The supreme court held that “the
change of circumstances rule, the heavy burden rule, and the appellate review
standard apply to any petition to modify custody, regardless of whether it is joint or
sole custody.” Id. at 1203. James argues that Bergeron did not distinguish between
physical custody or visitation and only analyzed whether the heavy burden of proof
applied to modification of considered legal custody decrees. James further argues
2 that the heavy Bergeron standard does not apply to actions seeking to modify
physical custody, that the burden of proof for an increase in physical custody is
whether it is in the best interests of the children, and that he has stated a cause of
action to increase visitation with his daughters.
The supreme court in Bergeron, 492 So.2d at 1200, held that the parent
seeking a change of custody after a considered decree has been rendered:
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 or by 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.
The supreme court further noted that this heavy burden rule was to “avoid the
uncertainty and instability that a best interest test alone would provide.” Id. at 1202.
The supreme court observed that when the legislature adopted the best interest
principle by Act No. 448 of 1977, it did not do away with the change of
circumstances rule, the heavy burden rule, and the appellate review standard when a
party seeks to modify custody. The best interests of the children rule applies to
determine the appropriate custody arrangement once the appropriate burden of proof
has been met.
In White v. Fetzer, 97-1266 (La.App. 3 Cir. 3/6/98), 707 So.2d 1377, writ
denied, 98-931 (La. 5/15/98), 719 So.2d 466, the father sought an increase in
visitation after the parties entered into a stipulated joint custody plan which included
a provision that the plan was to be treated as a considered decree. This court held
that the heavy Bergeron standard did not apply. This court explained that “visitation
is not strictly a ‘species of custody’” but has an independent basis in the civil code
citing La.Civ.Code art. 136, Revision Comments 1993(b). Id. at 1380. This court
3 went on to hold that “a showing that the change in visitation is in the best interest of
the child is sufficient.” Id.; Gerace v. Gerace, 05-1300 (La.App. 3 Cir. 4/5/06), 927
So.2d 622; Piccione v. Piccone, 09-300 (La.App. 3 Cir. 10/7/09), 20 So.3d 576, writ
denied, 09-2718 (La. 2/26/10), 28 So.3d 274; Beebe v. Delcambre, 16-17 (La.App.
3 Cir. 6/1/16), 194 So.3d 1214. In White, 707 So.2d at 1380, this court explained
that “[a] change in visitation rights is not as substantial as a change in actual physical
custody.” The court then remanded the case to the trial court to consider the
exception of no cause of action under the “best interest of the child standard” as
opposed to the Bergeron standard. This court also ordered the trial court to grant a
delay to the father to allow amendment of the petition pursuant to La.Code Civ.P.
art. 934, if it determined that the father’s rule did not state a cause of action.
In Joubert v. Joubert, 19-349 (La.App. 3 Cir. 11/13/19), 285 So.3d 7, the
mother and father entered into a stipulated judgment in which the parties agreed to
joint custody with a visitation schedule. The mother filed a rule to modify custody,
seeking an equal sharing schedule, claiming that there was a material change in
circumstances. This court observed that when there is a stipulated judgment, the
moving party bears the burden of proving a “material change in circumstances” since
the judgment was rendered, and then held that the mother failed to prove a material
change in circumstances warranting overnight visitation on Thursdays. Id. at 12.
Citing Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, this
court noted that “[t]he time parents with joint legal custody share with their children
is a physical custody allocation of a joint custody plan.” Joubert, 285 So.3d at 12.
However, this court, citing Mason v. Mason, 16-287 (La.App. 3 Cir. 10/5/16), 203
So.3d 519, and Brantley v. Kaler, 43,418 (La.App. 2 Cir. 6/4/08), 986 So.2d 188,
went on to hold that “[v]isitation schedules can be altered when conditions warrant
4 it, even when there lacks evidence supporting the modification of a prior custody
decree.” Joubert, 285 So.3d at 14.
In opposition to the above cases, this court in DeSoto v. DeSoto, 04-1248
(La.App. 3 Cir. 2/2/05), 893 So.2d 175, found that the provisions of La.Civ.Code art.
136 regarding visitation did not apply since the parents were under a joint custody
decree, and therefore, the Bergeron standard applied. We found that the non-
domiciliary parent under a joint custody decree has physical custody when the child
is with him, citing Francois v. Leon, 02-460 (La.App. 3 Cir. 11/27/02), 834 So.2d
1109 (there, a father who sought an increase in visitation was actually requesting the
sharing of physical custody, where he had been granted joint custody. There, we
found the heavier Bergeron standard applied).
More recently, in Davis v. Davis, 21-663 (La.App. 3 Cir. 2/2/22), 333 So.3d
1252, this court noted that a change in legal custody, i.e., a change from joint legal
custody to sole legal custody, is not a request for a change in physical custody. This
court went on to hold that “the ‘material change’ threshold burden applies to all
actions to modify custody, including actions to modify only physical custody.” Id.
at 1254. This court noted that “[t]he term ‘visitation’ applies only when a parent
does not have custody or joint custody. In other words, when one parent is awarded
sole legal custody, the other parent’s time with child is referred to as visitation.” Id.,
fn. 1 (citing La.Code Civ.P. art. 136; Cedotal, 927 So.2d 433). This court further
explained that “the term ‘physical custody’ refers to the time periods awarded to
parents with joint custody.” Id.
Louisiana Civil Code Article 136(A)(emphasis added) regarding visitation
rights states, in pertinent part: “Subject to [La.]R.S. 9:341 and 364, a parent not
granted custody or joint custody of a child is entitled to reasonable visitation
5 rights[.]” Thus, it appears when a parent is granted custody or joint custody,
visitation is not an issue to be considered by the court.
After analyzing the above jurisprudence, we find that the correct principle is
that set forth in DeSoto, 893 So.2d 175, and Davis, 333 So.3d 1252, and that the time
a parent spends with their child in a custody or joint custody arrangement is physical
custody and not visitation. We observe that in formulating a joint custody plan the
court is required to allocate time periods between the parents “so that the child is
assured frequent and continuing contact with both parents.” La.R.S. 9:335(A)(2)(a).
Additionally, the court is to consider equal sharing where feasible and in the best
interests of the children. La.R.S. 9:335(A)(2)(b). Therefore, we find the law
regarding visitation is not applicable to a parent awarded custody, as the time a
parent with joint custody is exercising with the child as part of a joint custody plan
is physical custody, rather than visitation, when the parent has the child.
As a parent granted joint custody by a considered decree, James’s action is
one to modify the physical custody arrangement already in place. Therefore, he
“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.”
Bergeron, 492 So.2d at 1200.
Noting the reasons for this more difficult standard, the court in Bergeron, 492
So.2d at 1195 (citations omitted), stated:
The reasons for the rule are that it is desirable that there be an end of litigation and undesirable to change the child’s established mode of living except for imperative reasons. Moreover, to require a party to show a change in circumstances materially affecting the child’s welfare before contesting an award of custody, that he previously has had a full
6 and fair opportunity to litigate, protects his adversary and the child from the vexation and expense attending multiple unjustified lawsuits, conserves judicial resources, and fosters reliance on judicial actions by minimizing the possibility of inconsistent decisions.
As further explained in Bergeron:
The heavy burden of proof rule as presently formulated may inflexibly prevent a modification of custody that is in the child’s best interest in a narrow class of cases, however, by requiring that a showing that the present custody is deleterious to the child as an indispensable ground for modification. In some instances the benefits to the child from a modification of custody may be so great that they clearly and substantially outweigh any harm that will be likely to result from the change even though the present custody is not deleterious to the child.
Id. at 1200 (footnote omitted).
NO CAUSE OF ACTION
Addressing the matter before us, La.Code Civ.P. art. 927(A)(5) provides for a
peremptory exception of no cause of action. No evidence may be introduced to
support or oppose an exception of no cause of action. La.Code Civ.P. art. 931.
Jurisprudence defines a cause of action as “the operative facts that give rise to the
plaintiff’s right to judicially assert the action against the defendant.” Ramey v.
DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118; State v. Ctr. for Tech and
Civic Life, 21-670, 21-671 (La.App. 3 Cir. 3/30/22), 350 So.3d 534, writ denied, 22-
721 (La. 6/28/22), 341 So.3d 568. The exception of no cause of action tests the legal
sufficiency of the petition by determining if the law provides a remedy based on the
facts asserted in the petition. Id. Based on the well-pleaded allegations in the
petition, the issue is whether plaintiff is legally entitled to the relief sought. Id. The
mover has the burden of establishing that the petition does not state a cause of action.
Id.
When the grounds of the objection pleaded by the peremptory exception of no
cause of action may be removed by amending the petition, “the judgment sustaining
7 the exception shall order such amendment within the delay allowed by the court.”
La.Code Civ.P. art. 934. If the grounds of the objection raised through the exception
cannot be removed, then the petition shall be dismissed. Id.
An appellate court reviews the judgment of a trial court regarding an exception
of no cause of action under the de novo standard of review because it raises a
question of law and the trial court’s decision is based solely on the sufficiency of the
petition. Ctr. for Tech and Civic Life, 350 So.3d 534.
We agree that James’s allegations in his petition do not meet the heavy
Bergeron standard. He has not set forth allegations that the present custody
arrangement is so deleterious to the children or that an increase in his time with the
children would benefit the children greatly and substantially outweighs any harm
that will be likely to result from the change, even if the present custody is not
deleterious to the child. However, we do find that under La.Code Civ.P. art. 934,
James should have been allowed an opportunity to amend his petition to state a cause
of action for modification of physical custody.
Therefore, we affirm the trial court’s ruling sustaining Leanne’s exception of
no cause of action but reverse the judgment insofar as it dismissed James’s action.
We remand this action to the trial court for further proceedings consistent herewith,
including instructions to allow James the opportunity to amend his petition within
thirty days of the date of this decision to remove the grounds for the objection of no
cause of action. All costs of this appeal are assessed equally to James Bridges and
Leanne Bridges.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED
WITH INSTRUCTIONS.
8 NUMBER 23-763
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
STILES, Judge, concurring in part and dissenting in part.
I agree with the majority that the terms “Custody” and “Visitation” are two
distinct legal terms that have distinct meanings.
“Custody” is controlled by Louisiana Civil Code Articles 131 through 137.
Article 131 requires that the court award custody “in accordance with the best
interest of the child.” With that overriding standard in mind, the trial court is required
to award “joint custody” to the parents unless sole custody in one parent is shown
“by clear and convincing evidence to serve the best interest of the child[.]”
La.Civ.Code art. 132 (emphasis added). The heightened burden of proof associated
with “sole custody” is appropriate given the clearly distinct regimes stemming from
an award of “joint custody” versus “sole custody.” See Griffith v. Latiolais, 10-754
(La. 10/19/10), 48 So.3d 1058 (explaining that clear and convincing evidence is
applied in civil cases only in exceptional circumstances; those where there is either
a special danger of deception, or where a particular type of claim should be
disfavored for policy reasons).
While a parent designated as a child’s sole custodian makes all decisions about
the health and welfare of the child, a “joint custody” regime rests on both parents being deemed appropriate and fit to share the physical custody of the child. See
La.R.S. 9:336 (obligating parents sharing joint custody “to exchange information
concerning the health, education, and welfare of the child and to confer with one
another in exercising decision-making authority.”)
Therefore, while the child is in the physical custody of either parent, that
parent is responsible for the health and welfare of the child independently, subject to
the designation of a domiciliary parent as required by La.R.S. 9:335(B)(1). This
latter designation carries certain obligations as the court designates the domiciliary
parent to make particular decisions about the health and well-being of the child, i.e.,
choosing health care providers, schools, etc. See La.R.S. 9:335(B)(3)(“The
domiciliary parent shall have authority to make all decisions affecting the child
unless an implementation order provides otherwise. All major decisions made by the
domiciliary parent concerning the child shall be subject to review by the court upon
motion of the other parent. It shall be presumed that all major decisions made by the
domiciliary parent are in the best interest of the child.”).
In contrast to custody, “visitation” is the legal term used to describe the time,
usually limited, that a non-custodial parent receives with the children. See
La.Civ.Code art. 136(A)(“Subject to R.S. 9:341 and 364, a parent not granted
custody or joint custody of a child is entitled to reasonable visitation rights unless
the court finds, after a hearing, that visitation would not be in the best interest of the
child.”). We again see that “visitation” is dictated by the best interest of the child
standard.
With those principles stated, it is clear from the record before us that Mr. and
Ms. Bridges were awarded joint custody by considered decree and that Ms. Bridges
was granted the status of domiciliary parent.
2 Now, Mr. Bridges seeks to modify the considered decree’s physical custody
schedule. While he does not seek modification of legal custody, the majority
nonetheless finds that the jurisprudential standard of Bergeron v. Bergeron, 492
So.2d 1193 (La.1986) is applicable to such a petition for modification. Bergeron
requires a party seeking to change custody rendered in a considered decree to
demonstrate that the continuation of the present custody is so deleterious to the child
as to justify a modification of the custody decree, or to prove by clear and convincing
evidence that the harm likely caused by a change of environment is substantially
outweighed by its advantages to the child. Id. As explained in Griffith, 48 So.3d at
1070, the use of a “clear and convincing” standard of proof should be limited to
those claims that are “disfavored on policy grounds.” As will be discussed below,
public policy favors both joint custody and the equal sharing of physical custody.
Therefore, application of Bergeron is where I depart from my colleagues.
Since Bergeron was rendered in 1986, the legislature has changed and
modified the law governing child custody multiple times. This reflects changes in
public policy. However, the legislature has never codified the Bergeron standard
within the joint custody context. But see La.Ch.Code art. 724(D)(2)(wherein the
legislature adopted the Bergeron standard within the context of a requested
modification or termination of a guardianship order).
In particular, La.R.S. 9:335, enacted in 1993 and thereafter amended several
times, specifically addresses the concept of joint custody and its requirement that the
trial court issue a joint custody implementation order. If we look to this statutory
authority, we find this language:
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
3 (2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
Id. (emphasis added). The legislature has issued a clear mandate. That is to assure
“frequent and continuing contact with both parents” and, to the “extent it is feasible,”
equally shared physical custody. Paragraph B states further:
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(Emphasis added.) This legislative expression came after Bergeron and is rather
clear in its mandate that the courts should be favoring frequent and continuing
contact with both parents. The language is “shall,” not “may,” “could,” or other
discretionary language. Therefore, the public policy of this state is for joint custody
and physical custody that is frequent and as equal as is feasible.
Further, this mandating language is not contingent on nor constrained by some
burden of proof beyond its dictates. Rather, La.R.S. 9:335(A)(2)(b) invokes only the
“best interest of the child” standard for allocation of physical custody. Bergeron was
decided within the context of a request to change an award of sole custody to joint
custody and thus involved purely a change of legal custody. To apply that standard
of proof in matters involving only a modification of physical custody, such as
4 currently before this court, is to put the jurisprudence ahead of the legislation and to
ignore the mandatory language of La.R.S. 9:335.
There is a reason why our jurisprudence, as clearly articulated by the majority,
is confusing and unclear. It is because courts have struggled to square the heightened
burden in Bergeron with the legislative mandates in La.R.S. 9:335 and Louisiana
Civil Code Articles 131, et seq.
In short, it is difficult to rationalize the fact that a parent who has been deemed
less fit and without legal custody may alter his/her “visitation” according to the “best
interest of the child standard” and without having to meet the heightened Bergeron
burden. See, e.g., Moody v. Moody, 23-205, p. 19 (La.App. 3 Cir. 11/15/23)
(unpublished opinion) (2023 WL 7653505) (explaining that, while a parent without
custody failed to meet the Bergeron standard in her request to modify custody, “an
alteration to visitation does not require meeting such a high standard.”). Whereas a
parent found fit and awarded joint custody, and only seeks to modify physical
custody arrangements, is required to meet the heightened burden.
Furthermore, a parent granted joint legal custody through a stipulated
judgment can also request to alter physical custody without the heightened Bergeron
burden. See Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731 (providing that,
when an underlying decree is a stipulated judgment, the moving party must prove
that a material change in circumstances has occurred since rendition of the
underlying decree and that the modification is in the child’s best interest). See also
Joubert v. Joubert, 19-349 (La.App. 3 Cir. 11/13/19), 285 So.3d 7.
The rationale behind the heightened Bergeron standard is to “set clear
boundaries for modification actions,” as “more harm is done to children by custody
litigation, custody changes, and interparental conflict, than by such factors as the
5 custodial parent’s post divorce amours, remarriage, and residential changes, which
more often precipitate custody battles under liberal custody modification rules than
conduct that is obviously harmful to the child, such as abuse or serious neglect,
which justifies intervention to protect the child[.]” Bergeron, 492 So.2d at 1199. Yet,
we do not follow this rationale in matters where a finding of sole custody has been
made and the non custodial parent seeks to alter the visitation. Are these less
traumatic or litigious affairs? Is litigation following a stipulation of joint custody any
less traumatic to a child?
If this were a matter of changing the designation of a domiciliary parent, or
sole custody to joint custody, or vice versa, the merits of Bergeron would be readily
apparent. These are significant changes that are likely to be heavily litigated and may
bring stress and trauma to a child. These are circumstances where legal custody is
being challenged or changed. This is where the Bergeron rationale, which was
articulated within the confines of a legal custody dispute, should remain applicable
in our jurisprudence.
Parents awarded joint custody by considered decree should not have a heavier
burden in seeking a reallocation of the attendant physical custody schedule than
those without custodial rights or those who have stipulated to joint custody. In
matters where joint custody has been awarded, either by stipulated judgement or
considered decree, the standard for amending physical custody should reflect the
mandates of R.S. 9:335(A)(2)(a) and (b). The legislature therein plainly stated a child
must be “assured of frequent and continuing contact with both parents[,]” and,
“[t]o the extent it is feasible and in the best interest of the child, physical custody
should be shared equally.” (Emphasis added.) This reflects the public policy of this
State and should not be disfavored by a heightened burden of proof.
6 Finally, Bergeron entered our jurisprudence at a very different time and under
a very different legal regime. Our society has become much more mobile and elastic,
for better or worse. Parents frequently change jobs and careers. They also frequently
move from one place to another. The opportunity to alter physical custody
arrangements by parents with joint custody should not be barred by some burden of
proof established by our jurisprudence within the legal custody context and in
opposition to current legislation. An award of joint custody means that a court, after
consideration of the record, found the parent fit to make decisions in the life of the
child. This is substantially different from a parent who has been deemed unfit to
exercise joint custody and has been granted only visitation. The burden for the fit
parent should not be greater than the unfit parent in altering the time spent with a
child. Additionally, the opportunity to request such modification should not be more
restrained for a judicially determined fit parent.
For the reasons set forth above, I would vacate the judgment of the trial court
sustaining the exception of no cause of action and remand the matter for further
proceedings.