Martin v. Martin

89 So. 3d 526, 11 La.App. 3 Cir. 1496, 2012 WL 1694599, 2012 La. App. LEXIS 665
CourtLouisiana Court of Appeal
DecidedMay 16, 2012
DocketNo. 11-1496
StatusPublished
Cited by9 cases

This text of 89 So. 3d 526 (Martin v. Martin) 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
Martin v. Martin, 89 So. 3d 526, 11 La.App. 3 Cir. 1496, 2012 WL 1694599, 2012 La. App. LEXIS 665 (La. Ct. App. 2012).

Opinions

SAUNDERS, J.

| ,This appeal arises out of a divorce and custody case wherein the trial court removed the mother’s domiciliary status and assigned it to the father. The grounds for modification of custody were, inter alia, the mother’s failure to follow the relocation procedure, set forth in La.R.S. 9:355.1 — .17. The mother appeals, seeking to be reinstated as domiciliary parent of the seven year old female child. For the reasons discussed herein, we reverse in part and affirm in part the judgment of the trial court and remand for a new trial.

FACTS & PROCEDURAL HISTORY

Appellee Kenneth Martin (hereinafter “Martin”) filed for divorce from appellant Beverly Martin, now Beverly Woods (hereinafter “Woods”) on August 13, 2009. Thereafter, on September 2, 2009, the trial court issued an interim judgment ordering joint custody of their minor child, Austin Elise Martin (hereinafter “Austin”). The interim judgment assigned neither parent as custodial parent, with Martin being entitled to visitation every other weekend and one evening per week and any other times agreed upon between the parties. That judgment remained in effect until the trial court issued a divorce judgment and custody decree on August 9, 2010, which designated Woods as the primary custodial parent subject to visitation in favor of Martin as set forth in the court’s joint custody implementation plan. The plan generally provided that Martin was entitled to visitation on alternating weekends, alternating holidays, and for five weeks during the summer.

Woods sent a letter to Martin, postmarked December 3, 2010, notifying him of her intent to relocate to Covington, Louisiana on January 1, 2011. Afterwards, on December 28, 2010, Martin filed an objection to the relocation of Austin and a rule for contempt and to modify custody. After trial on the merits, which was held 12on May 16, 2011, the trial court found Woods in contempt of court for violating the joint custody implementation plan by having an overnight guest of the opposite sex to whom she was not married, failing to provide school records and extra-curricular schedules to Martin, and failing to comply with court ordered visitation. As a result, she was ordered to pay $200.00 plus court costs and $400.00 in attorney fees. Further, the court found Woods in violation of the relocation statutes, L.a. R.S. 9:355.1-17, and ordered that Austin be returned to Vernon Parish by June 4, 2011. Finally, it was ordered that the previous custody arrangement be modified to name Martin the primary custodial parent, subject to Woods’s visitation pursuant to the court’s joint custody implementation plan. It is from this judgment that Woods appeals. For the following reasons, we reverse in part and affirm in part the decision of the trial court and remand for a new trial consistent herewith.

ASSIGNMENTS OF ERROR

1. Whether the trial court abused its discretion in modifying custody, thereby stripping appellant Woods of her primary custodial parent status and naming appellee Martin as the primary custodial parent.

2. Whether the trial court erred in denying Woods’s motion for a new trial.

[528]*528LAW AND ANALYSIS

In her first assignment of error, Woods asserts that the trial court erred by removing her status as primary custodial, or domiciliary, parent, and assigning that status to Martin. We find merit in this contention.

“A trial court’s determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion.” Franklin v. Franklin, 99-1738, p. 4 (La.App. 3 Cir. 5/24/00), 763 So.2d 759, 762. A judgment of the trial court will not be disturbed on appeal unless it is clearly wrong or manifestly erroneous, and this assessment must be made in light of the | ^entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989); Mart v. Hill, 505 So.2d 1120 (La.1987). In awarding or modifying custody, the court must do so in regards to the best interest of the child. La. Civ. Code art. 131.1

The burden of proof in a modification of custody matter is dependent on the type of custody decree issued by the trial court:

When a trial court has made a considered decree of permanent custody, the party seeking to modify the decree 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, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Wilson v. Wilson, 30,445 (La.App. 2 Cir. 4/9/98), 714 So.2d 35. A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App. [2d Cir.] 2/6/95 [12/6/95]), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96), 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested!,] or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.
Ji.---
[529]*529Where the Bergeron burden is inapplicable, the party seeking to modify the custody arrangement need only prove a change in circumstances since the original decree and prove that the new custody arrangement would be in the best interest of the child. Wilson, supra; Barnes, supra.

Schuchmann v. Schuchmann, 00-094, p. 8 (La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616 (quoting Roberie v. Roberie, 33,168, p. 3 (La.App. 2 Cir. 12/8/99), 749 So.2d 849, 852) (emphasis added). In the instant case, the trial court correctly acknowledged that the. June 21, 2010 stipulated custody decree was a consent decree. Therefore, the strict standards of Berger-on do not apply.

We now turn to the procedures for relocating a child whose custody is shared. The first step in the relocation process is notification to the non-custodial parent. Before relocating the child, the custodial parent must seek judicial authorization or consent of the non-custodial parent:

A parent entitled to primary custody of a child shall notify the other parent of a proposed relocation of the child’s principal residence as required by R.S. 9:355.4, but before relocation shall obtain either court authorization to relocate, after a contradictory hearing, or the written consent of the other parent prior to any relocation.

La. R.S. 9:355.3(A).

The particularities of the notification requirement are listed in La. R.S. 9:355.4:

A.Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, to the last known address of the parent no later than either:
(1)The sixtieth day before the date of the intended move or proposed relocation.

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Cite This Page — Counsel Stack

Bluebook (online)
89 So. 3d 526, 11 La.App. 3 Cir. 1496, 2012 WL 1694599, 2012 La. App. LEXIS 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-martin-lactapp-2012.