Lee v. Lee

766 So. 2d 723, 2000 WL 1206042
CourtLouisiana Court of Appeal
DecidedAugust 25, 2000
Docket34,025-CA
StatusPublished
Cited by17 cases

This text of 766 So. 2d 723 (Lee v. Lee) 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
Lee v. Lee, 766 So. 2d 723, 2000 WL 1206042 (La. Ct. App. 2000).

Opinion

766 So.2d 723 (2000)

Gregory Gilmer LEE, Plaintiff-Appellant,
v.
Angela Diane LEE, nee Scriber, Defendant-Appellee.

No. 34,025-CA.

Court of Appeal of Louisiana, Second Circuit.

August 25, 2000.
Writ Denied November 13, 2000.

*724 Albert E. Loomis, III, Monroe, Counsel for Appellant.

Donald R. Brown, Alexandria, Counsel for Appellee.

Before STEWART, CARAWAY and PEATROSS, JJ.

STEWART, J.

In this child custody proceeding, the mother, Angela Diane Scriber Lee ("Angela"), filed a rule to modify the prior judgment which awarded the parties joint custody and named the father, Gregory Gilmer Lee ("Greg"), the domiciliary custodian of the two children. The trial court modified its prior custody judgment to provide equal sharing of the physical custody of the children. Because we find that Angela Lee, the plaintiff-in-rule, failed to satisfy the applicable burden of proof for modification of child custody judgments, we reverse the trial court's judgment and reinstate the original custody decree.

FACTS

Greg and Angela were married on June 2, 1990. Two children were born of the marriage, namely, Meagan Danielle born on April 2, 1992 and Katie Alayne born on April 24, 1995. A judgment of divorce was granted on April 15, 1997. Custody of the children was contested during a trial lasting fourteen days. By way of a judgment rendered May 21, 1998, the trial court awarded Greg and Angela joint custody with Greg being the domiciliary custodian of the two children. The judgment specified that Greg was to have physical custody of Meagan and Katie during the nine months of the school year, beginning one week before the start of school in the fall and ending three days after the close of school in the spring. Angela was to have physical custody of the girls during the three summer months. Each was to have custody on alternating weekends while the children were in the physical custody of the other parent. Angela was also granted one week visitation during spring break, and Greg was granted one week visitation during the summer months for vacation time. The judgment also specified the division of custody for holidays. In written reasons for the judgment, the trial court reported that Angela had been diagnosed with bipolar disorder and was under treatment for the condition. The trial court noted the turbulent relationship between Angela and her parents and expressed concerns as to whether Angela and her family could provide the guidance and direction needed for the children to thrive. Other concerns expressed by the trial court included Angela's impulsive behavior as exhibited in job changes, residential moves, purchases, and relationships, as well as the hectic pace of her schedule which included attending nursing school, working for her father, and caring for the children on a bi-weekly basis. With these concerns in mind, along with the children's need for stability, continuity, and contact with their mother, the trial court ordered the joint custody arrangement specified above. A condition of the custody order was that Angela continue treatment, including medication and counseling for the bipolar condition, and that her treating physician file reports certifying Angela's compliance with her treatment.

On December 10, 1998, approximately six months after the rendition of the joint custody judgment, Angela filed a rule alleging a change in circumstances warranting a change in the domiciliary custody of the children. Angela alleged that she was *725 in remission from the bipolar disorder and that she was no longer required to take medication for the condition. Angela further alleged that she was no longer attending school and that she was employed full-time for her father as a manager of an insurance agency. Additionally, Angela alleged that Greg began an affair with a married woman named Regina Cencer ("Regina"), and that he was trying to estrange the children from her by involving Regina in their lives. Other allegations pertained to Greg's alleged interference with Angela's involvement in the children's educational activities and his alleged failure to properly attend to the children's physical health. In response to the rule filed by Angela, Greg filed an exception of no cause of action. Greg argued that the judgment of May 21, 1998 was a considered decree and that Angela failed to make the prerequisite allegations mandated by Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) for a modification of a considered decree. The trial court granted the exception. Thereafter, Angela amended her rule to allege the marriage of Greg to Regina and the introduction of step-siblings into the family as changes in circumstances warranting a modification of the prior custody decree. Angela also made specific allegations regarding the behavior of Regina's son toward Katie. Angela alleged that any harm to result from a change in custody would be substantially outweighed by the advantages to the children.

Trial of the rule occurred over five days. In written reasons for judgment, the trial court noted positive changes in Angela's life, including the stability of her mental health, employment, and living situation. The trial court also noted the improved relationship between Angela and her parents, Angela's involvement with the children's school activities, and her loving relationship with her daughters. The trial court found that Greg and his new wife, Regina, were "excellent parents" for the two children, but also determined that Meagan and Katie should have the benefit of their mother on a more substantial basis. Accordingly, the judgment of the trial court rendered February 18, 2000 maintained the joint custody award but modified the division of custody to provide for equal sharing of physical custody on a two month rotating basis with visitation on alternating weekends for the non-custodial parent. Greg appeals this judgment.

DISCUSSION

Greg contends that Angela failed to meet the burden of proof set forth in Bergeron for modification of a considered decree of custody. Greg asserts that he has provided a stable and loving environment in which Meagan and Katie have thrived. He also asserts that Angela has failed to show any change in circumstances warranting a change in the custody arrangement. It is Greg's position that the trial court either failed to apply the Bergeron burden of proof or committed manifest error in its factual analysis. Angela asserts that the evidence supports the trial court's findings and shows that she has made significant improvements in her emotional and physical well-being by maintaining steady employment, establishing a stable home, and strengthening her relationship with Meagan and Katie. As an alternative, Angela contends that the trial court's judgment did not modify the prior custody arrangement, but simply increased her visitation rights. As such, the Bergeron burden of proof would not apply.

In Bergeron, the Louisiana Supreme Court set forth the burden of proof which must be met by a party seeking to change a considered decree of permanent custody. A considered decree is one for which evidence as to parental fitness to exercise custody is received by the trial court. Roberie v. Roberie, 33,168 (La. App.2d Cir.12/8/99), 749 So.2d 849. When a trial court has made a considered decree of custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so *726

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

Related

Jamie Killian Coody v. John Allen Coody
Louisiana Court of Appeal, 2020
Freeman v. Johnson
225 So. 3d 524 (Louisiana Court of Appeal, 2017)
Hilkirk v. Johnson
183 So. 3d 731 (Louisiana Court of Appeal, 2015)
Gray v. Gray
65 So. 3d 1247 (Supreme Court of Louisiana, 2011)
Gray v. Gray
55 So. 3d 826 (Louisiana Court of Appeal, 2011)
Preuett v. Preuett
38 So. 3d 551 (Louisiana Court of Appeal, 2010)
Bonnecarrere v. Bonnecarrere
37 So. 3d 1038 (Louisiana Court of Appeal, 2010)
Bridges v. Bridges
33 So. 3d 914 (Louisiana Court of Appeal, 2010)
Granger v. Granger
25 So. 3d 162 (Louisiana Court of Appeal, 2009)
Tommie Mack Granger v. Stephanie W. Granger
Louisiana Court of Appeal, 2009
Schmidt v. Schmidt
6 So. 3d 197 (Louisiana Court of Appeal, 2009)
Cedotal v. Cedotal
927 So. 2d 433 (Louisiana Court of Appeal, 2005)
Flanagan v. Flanagan
839 So. 2d 1070 (Louisiana Court of Appeal, 2003)
Francois v. Leon
834 So. 2d 1109 (Louisiana Court of Appeal, 2002)
Kyle v. Kyle
780 So. 2d 1241 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
766 So. 2d 723, 2000 WL 1206042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-lee-lactapp-2000.