Lunney v. Lunney

91 So. 3d 350, 2011 La.App. 1 Cir. 1891, 2012 La. App. LEXIS 472, 2012 WL 601241
CourtLouisiana Court of Appeal
DecidedFebruary 10, 2012
DocketNo. 2011 CU 1891
StatusPublished
Cited by6 cases

This text of 91 So. 3d 350 (Lunney v. Lunney) 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
Lunney v. Lunney, 91 So. 3d 350, 2011 La.App. 1 Cir. 1891, 2012 La. App. LEXIS 472, 2012 WL 601241 (La. Ct. App. 2012).

Opinion

CARTER, C.J.

|2Leslie Ann Shoebotham appeals a judgment of the trial court modifying the shared custody arrangement set forth in a prior consent judgment, but denying her requests that custody be changed from the shared fifty-fifty arrangement of the consent judgment and that she be named domiciliary parent.

FACTS AND PROCEDURAL HISTORY

Leslie Shoebotham and Glynn Lunney are the divorced parents of three children, born December 12, 1993, August 19, 1996, and April 22, 1998. The youngest two children have special needs. After their divorce, Ms. Shoebotham and Mr. Lunney reached an agreement regarding custody of the children, which was memorialized in a judgment dated December 11, 2008 (“the consent judgment”). The consent judgment provided for joint custody, with physical custody being shared according to the following schedule: Ms. Shoebotham would have the children every Monday and Wednesday; Mr. Lunney would have the children every Tuesday and Thursday; and Ms. Shoebotham and Mr. Lunney would alternate having the children Friday through Sunday.

In March 2010, Ms. Shoebotham moved for a change of custody, seeking to have the children reside with her on weekdays and alternate weekends with each parent. Her motion was based, in part, on the ongoing treatment of the children’s special needs and her contentions that Mr. Lun-ney was not facilitating that treatment during periods in which he exercised physical custody. Mr. Lunney opposed the proposed change in custody but, in a re-conventional demand, suggested that the [353]*353children would benefit from an alternating weekly physical custody schedule.

| sIn June 2010, the parties met with a hearing officer of the 22nd Judicial District Court who recommended that Ms. Shoe-botham’s requested change of custody be denied and that the parties share physical custody on an alternating weekly basis. However, due to particular difficulties the youngest child, G.I.L., was facing, the hearing officer recommended that during the school year, G.I.L. would reside with Ms. Shoebotham Mondays through Fridays and every third weekend of the month. The hearing officer’s recommendation was made a temporary order of the court on June 16, 2010.

The parties reached an agreement as to custody of the oldest child who was then seventeen years old, which was memorialized by a separate consent judgment signed March 18, 2010. The trial court held a three-day hearing regarding custody of the younger two children (then ages fourteen and thirteen) and ruled that Ms. Shoebotham failed to meet her burden of proving a material change in circumstances so as to warrant modification of the custody arrangement set forth in the consent judgment. The trial court ordered that the parties share equal physical custody of the youngest two children on an alternating weékly basis, with a detailed schedule regarding physical custody during holidays.

Ms. Shoebotham now appeals, designating seven assignments of error. In short, she contends that the trial court applied an incorrect burden of proof to her request for modification of the consent judgment’s custody arrangement, made prejudicial ev-identiary rulings, and, alternatively, erred in modifying the consent judgment’s custody arrangement.

J4DISCUSSION

The time that parents with joint legal custody share with their children is a physical custody allocation of a joint custody plan. Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433, 436. A party seeking modification of a physical custody decree set forth in a stipulated or consensual judgment must meet the two-prong test of proving that there has been a material change in circumstances (also referred to as a change in circumstances materially affecting the welfare of the child) since the original decree, as well as prove that the proposed modification is in the best interest of the child. Cedotal, 927 So.2d at 436. If the first prong of the test is not met and a material change in circumstances is not shown, the inquiry ends, and there is no basis for altering the physical custody decree. Kingston v. Kingston, 11-1629 (La.App. 1 Cir. 12/21/11), 80 So.3d 774, 778; Bonnecarrere v. Bonnecarrere, 09-1647 (La.App. 1 Cir. 4/14/10), 37 So.3d 1038, 1044, writ denied, 10-1639 (La.8/11/10), 42 So.3d 381. Ms. Shoebot-ham’s contention that she should merely have been required to show that her proposed custody modification was in the children’s best interests is legally incorrect.

In her appellate brief, Ms. Shoe-botham argues that a material change in circumstances was not necessary in this case as both parties stipulated that the custody arrangement set forth in the consent judgment was unworkable. Preter-mitting a determination of whether such a stipulation could negate the requirement of proving the first prong of the test for modifying the custody arrangement set forth in the consent judgment, we find no such stipulation reflected in the record. In his response to Ms. Shoebotham’s request for modification of custody, Mr. Lunney averred that there had been no material | ^change in circumstances that [354]*354would warrant a change in the existing custody and visitation schedule. However, in a reconventional demand, Mr. Lunney sought to change the custody arrangement to a week-to-week schedule and asserted that such a schedule would be more beneficial to everyone. During Mr. Lunne/s testimony at the hearing, he was specifically asked if he agreed that the custody arrangement set forth in the consent judgment did not work. Mr. Lunney responded, “[n]ot really,” and then explained that the schedule accommodated both his and Ms. Shoebotham’s teaching schedules. He went on to explain that, in asking that the schedule be modified, he did not understand that he might be conceding there was a change in circumstances, but was merely expressing a preference. Mr. Lunney stated that he “would certainly withdraw [his] motion” and that he was “perfectly happy with any 50/50 custody relationship for the two younger boys.” Considering the record as a whole, we do not find, as Ms. Shoebotham suggests, that Mr. Lunney’s request for a change in the custody schedule rises to the level of a stipulation to the first prong of the test for modifying custody.

In three assignments of error, Ms. Shoebotham challenges the trial court’s finding that she did not prove a material change in circumstances, as well as the trial court’s rulings to allow expert testimony by Dr. Colin McCormick and not to allow testimony by the parties’ middle child.

Ms. Shoebotham complains that she was not provided with requested psychological records of Dr. McCormick’s treatment of Mr. Lunney and was therefore denied the opportunity to meaningfully cross-examine Dr. McCormick. The admissibility of a witness’s testimony lies within the discretion of the trial court. Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 03-0306 (La.4/4/03), 840 So.2d 1219. The trial court considered Ms. Shoebotham’s objection to Dr. McCormick’s testimony and ruled that Dr. McCormick would be allowed to testify and that his testimony would be given the weight the trial court deemed appropriate. Ms. Shoebotham’s counsel then indicated he agreed with the trial court’s ruling but wanted the trial court to know that he believed he had been “sandbagged.” After reviewing the entire record, we find that any error in allowing Dr. McCormick to testify was harmless.

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Cite This Page — Counsel Stack

Bluebook (online)
91 So. 3d 350, 2011 La.App. 1 Cir. 1891, 2012 La. App. LEXIS 472, 2012 WL 601241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lunney-v-lunney-lactapp-2012.