Matthews v. Matthews

633 So. 2d 342, 1993 WL 511989
CourtLouisiana Court of Appeal
DecidedNovember 24, 1993
DocketCA 93 0559
StatusPublished
Cited by6 cases

This text of 633 So. 2d 342 (Matthews v. Matthews) 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
Matthews v. Matthews, 633 So. 2d 342, 1993 WL 511989 (La. Ct. App. 1993).

Opinion

633 So.2d 342 (1993)

Ronda M. MATTHEWS
v.
Michael J. MATTHEWS.

No. CA 93 0559.

Court of Appeal of Louisiana, First Circuit.

November 24, 1993.

*343 Marilyn M. Lambert, Lambert & Lambert, Gonzales, for plaintiff/appellee Ronda Matthews.

John A. Gutierrez, Gonzales, and John B. Comish, Baton Rouge, for defendant/appellant Michael Matthews.

Before CARTER, GONZALES and WHIPPLE, JJ.

*344 GONZALES, Judge.

This is an appeal by the defendant, Michael J. Matthews, from a judgment limiting his access to his two minor children to periodic, restricted, supervised visitation. The children currently reside with their mother, Ronda Millet Matthews.

FACTS AND PROCEDURAL HISTORY

Michael J. Matthews and Ronda Millet Matthews were married on August 8, 1974. Two children were born of the marriage: Christopher Lee Matthews, born on August 25, 1981; and Mikelyn Joy Matthews, born on September 13, 1985.

In June of 1988, Mr. Matthews, an attorney, pled guilty to theft and forgery charges stemming from his misappropriation of monies from a client escrow account. On January 20, 1989, he was sentenced to ten years imprisonment at hard labor. On September 21, 1989, a stipulated judgment was signed by the trial court granting sole temporary custody of the minor children to Mrs. Matthews "without prejudice and with full reservation of rights." Based on Mr. Matthews' felony conviction and subsequent incarceration, Mrs. Matthews filed for a divorce pursuant to former La.C.C. art. 139.[1] On October 9, 1989, judgment was signed granting the divorce.

Mr. Matthews actually served three years and four months in prison. At the beginning of his incarceration, his children visited him regularly. However, according to Mr. Matthews' testimony at the hearing on his rule for joint custody, approximately two months before Mrs. Matthews filed for divorce, the visits dwindled. Thereafter, although contact was maintained through telephone calls and written letters, Mr. Matthews testified that he did not see his children for approximately two and one-half years. Although not exactly clear, the record contains some evidence that the lack of visitation stemmed from the fact that the names of Mrs. Matthews and the children were not on the list of approved visitors able to see Mr. Matthews while in prison. However, Mr. Matthews' testimony is directly contradictory; he testified that the names of Mrs. Matthews and both children were on the approved list for the entire period of his incarceration.

In May of 1992, Mr. Matthews was released from prison. On July 1, 1992, he filed a "Rule for Joint Custody and Visitation" alleging that, despite amicable efforts to see his children, Mrs. Matthews had refused him any access to them. He requested that Mrs. Matthews be ordered to show cause why joint custody of the children should not be awarded to them both. He attached a "Proposed Joint Custody Implementation Plan" to the rule in which he proposed that his custodial access to the children gradually increase from every Saturday, to every Saturday and Sunday, and eventually to every other weekend plus some holidays and summer vacation.

By judgment rendered July 31, 1992, and signed August 12, 1992, the trial court granted Mr. Matthews supervised visitation with the two children every other Saturday from 1:00 p.m. until 6:00 p.m. beginning on August 8, 1992. The visits were to be supervised by one of three specifically named persons or any other person acceptable to both parties and who was to be chosen by Mrs. Matthews. Mr. Matthews was also ordered to pay Mrs. Matthews $150.00 per month in child support.[2] The matter was reset for hearing on October 30, 1992.

On October 16, 1992, Mr. Matthews filed a "Motion to Re-fix Rule" requesting that his prior rule for joint custody be re-fixed for hearing. He alleged that the visitation arrangements ordered by the court in the August 12, 1992 judgment did not provide him *345 enough quality time with his children, made it difficult for him to arrange activities suitable for both children given their age differences, and also made it difficult for the three of them to engage in activities outside the immediate area of their respective residences. The rule was re-fixed for hearing on November 6, 1992 but was actually heard on November 13, 1992.

By judgment rendered November 13, 1992, and signed January 21, 1993, the trial court ordered that Mr. Matthews' visitation with his children was to continue in accordance with the previously imposed guidelines outlined in the August 12, 1992 judgment. The matter was re-fixed for review on June 4, 1993 for consideration of future modifications of the visitation arrangement.

From the January 21, 1993 judgment, Mr. Matthews appeals, asserting that the trial court abused its discretion and committed manifest error in (1) failing to award him joint custody of his two minor children, and (2) failing to award him reasonable, unsupervised and meaningful visitation with his two minor children.

DISCUSSION

Louisiana Civil Code article 134 directs that "[i]n all cases of divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 131." A change of custody may be made if it is shown that the best interest of the child requires that change. La.C.C. art. 131(E). Joint custody is presumed to be in the best interest of the child. La.C.C. art. 131(C). This presumption may be rebutted only by a showing that joint custody is not in the best interest of the child, after a consideration of the factors listed in La.C.C. art. 131(C)(2)[3]. Best interest of the child is the paramount consideration in child custody matters, including those involving change of custody. Lindner v. Lindner, 569 So.2d 173, 175 (La.App. 1st Cir.1990).

When a trial court has made a considered decree of permanent custody, the party seeking a change 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. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986); Smith v. Smith, 615 So.2d 926, 930-931 (La.App. 1st Cir.), writ denied, 617 So.2d 916 (La.1993). However, where no considered decree of custody has been rendered, the "heavy burden" rule does not apply; a party seeking to modify an existing custody arrangement must still prove that a change in circumstances materially affecting the welfare of the child has occurred since the original decree and that the modification proposed is in the best interest *346 of the child. Smith v. Smith, 615 So.2d at 931.

A "considered decree" is one which is rendered after receipt by the trial court of evidence concerning the parental fitness of the parties. Bridgers v. Bridgers, 509 So.2d 793, 794 (La.App. 1st Cir.1987). In the instant case, the original decree awarding Mrs. Matthews temporary sole custody was stipulated. The record does not indicate that evidence was adduced concerning parental fitness for custody. Thus, the original custody decree was not a considered decree, and the test to be applied in modifying the current custody arrangement is to determine whether there was a "change in circumstances" and whether the proposed modification "is in the best interest of the child." Smith v. Smith,

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633 So. 2d 342, 1993 WL 511989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthews-v-matthews-lactapp-1993.