Maxwell v. Stanley

57 So. 3d 1193, 10 La.App. 3 Cir. 1049, 2011 La. App. LEXIS 197, 2011 WL 520112
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2011
DocketNo. 10-1049
StatusPublished
Cited by1 cases

This text of 57 So. 3d 1193 (Maxwell v. Stanley) 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
Maxwell v. Stanley, 57 So. 3d 1193, 10 La.App. 3 Cir. 1049, 2011 La. App. LEXIS 197, 2011 WL 520112 (La. Ct. App. 2011).

Opinion

COOKS, Judge.

|,In this child custody case, the mother appeals the trial court’s judgment which modified the stipulated custodial agreement to name the father as the primary domiciliary parent. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Jason Randall Maxwell and Jennifer Stanley Lavigne are the biological parents of the minor child, Brooklyn Claire Maxwell, who was born on March 1, 2006. The two were never married but were living together in Vidalia, Louisiana at the time of birth. In May of 2007, Jennifer moved into her mother’s home in Natchez, Mississippi.

In March of 2009, Jennifer married Michael Lavigne. In July of 2009, she moved to Prairieville, Louisiana where Michael resided.

On June 30, 2006, both Jason and Jennifer filed a “Petition for Determination of Custody, Child Support, Visitation, and Incidental Matters.” The court signed an Order providing the parties had joint custody, with Jennifer designated as the domiciliary parent. Visitation was set forth with an evenly distributed holiday visitation schedule. Jason was also ordered to pay $200.00 per month in child support and to maintain Brooklyn on his insurance. The parties were ordered to split all medical and dental expenses not covered by insurance.

On May 21, 2007, Jason, filed a “Petition to Amend Petition for Determination of Custody, Child Support, Visitation, and Incidental Matters and Order.” This petition requested a modification of the visitation schedule to specifically set forth that Jason would be granted visitation with Brooklyn every other weekend beginning at 5:00 p.m. on Fridays and ending at 5:00 p.m. on Sundays. An Order was signed setting a Rule to Show Cause on the mat[1195]*1195ter for June 11, 2007. No hearing was held.

|;,On August 8, 2007, a “Second Petition to Amend Petition for Determination of Custody, Child Support, Visitation, and Incidental Matters and Order” was filed by Jason. It proposed to modify the custodial arrangement so that each party would have physical custody of Brooklyn for two consecutive weeks at a time. A hearing was set for September 13, 2007. On that date, the parties entered into a consent judgment in which they were awarded equal shared custody with Jennifer named the domiciliary parent. The visitation schedule was agreed upon.

On March 2, 2010, Jason filed a “Petition to Modify Custody”, requesting a modification of the custodial arrangement so that Jason would be named the domiciliary parent of Brooklyn subject to reasonable visitation for Jennifer. The proposed visitation schedule provided for visitation with Jennifer every other weekend and an even split for holidays. The reason given for the requested modification was Jennifer’s relocation to Prairieville, along with alleged health and/or hygiene problems that occurred while Brooklyn was with Jennifer.

On March 24, 2010, the matter was continued on a motion from Jennifer, and a hearing date was set for April 26, 2010. Jennifer also submitted “Interrogatories and a Request for Production” to Jason on March 28, 2010. On April 12, 2010, Jennifer filed an “Answer, Exceptions, and Re-convention” in the matter. Exceptions of No Right and No Cause of Action were filed alleging Jason’s “Petition to Modify Custody failed to allege a material change in circumstances necessary for a change of custody”. In her reconventional demand, Jennifer requested back due child support. On April 19, 2010, Jason submitted answers and responses to the interrogatories and request for production made by Jennifer.

The matter proceeded to trial on April 26, 2010, however, due to the district Iscourt’s docket, it was continued to May 10, 2010: The matter was heard on May 10, 2010. The district court took the matter under advisement, and requested post-trial memorandum from the parties. The district court rendered judgment on June 17, 2010, denying Jennifer’s exceptions of no right and no cause of action. Joint custody was maintained, but custody was modified to name Jason primary domiciliary parent, with specific visitation fixed for Jennifer. Although the parties stipulated that both support and modification of custody and visitation would not take place until school started, the trial court disregarded this stipulation and terminated child support to Jennifer prior to school beginning and awarded the tax dependency exemption to Jason prior to school beginning.

Jennifer has appealed the judgment, asserting the trial court erred in failing to continue her as domiciliary parent and in terminating child support paid to her effective on June 16, 2010 despite the stipulation to the contrary. Jennifer also argued the trial court erred in excluding the testimony of her husband, Michael Lavigne, because he was not included on her witness list prior to trial.

ANALYSIS

There is a distinction between the burden of proof required to change a custody plan ordered pursuant to a considered decree and the burden of proof required to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). Once a considered decree of permanent custody has been rendered by a court, the proponent of a change of custody bears the heavy burden of proving that a change of circumstances [1196]*1196has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that the harm likely to be caused by a change of environment is ^substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). In cases where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. Id. In the case before us, there was no considered decree, thus the heavier Bergeron standard does not apply and Jason must only prove that the proposed change to him as the domiciliary parent was in the best interests of Brooklyn.

Louisiana Civil Code Article 131 requires that the award of custody be based on the best interest of the child. The trial court also recognized that when parents cannot agree as to a custody arrangement, La.Civ.Code art. 134 provides twelve relevant factors the court “shall” consider in determining the best interest of the child. Those factors are as follows:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

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

Related

Rooney v. Becnel
81 So. 3d 882 (Louisiana Court of Appeal, 2011)
Deanna Arrington v. Joshua H. Arrington
Louisiana Court of Appeal, 2011

Cite This Page — Counsel Stack

Bluebook (online)
57 So. 3d 1193, 10 La.App. 3 Cir. 1049, 2011 La. App. LEXIS 197, 2011 WL 520112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-stanley-lactapp-2011.