McCready v. McCready

924 So. 2d 471, 2006 WL 549242
CourtLouisiana Court of Appeal
DecidedMarch 8, 2006
Docket41,026-CA
StatusPublished
Cited by9 cases

This text of 924 So. 2d 471 (McCready v. McCready) 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
McCready v. McCready, 924 So. 2d 471, 2006 WL 549242 (La. Ct. App. 2006).

Opinion

924 So.2d 471 (2006)

Tracy McCREADY, Plaintiff-Appellant,
v.
Patricia Ann McCREADY, Defendant-Appellee.

No. 41,026-CA.

Court of Appeal of Louisiana, Second Circuit.

March 8, 2006.

Charles L. Cook, Monroe, for Appellant.

Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Teresa C. Carroll, Jonesboro, for Appellee.

Before WILLIAMS, CARAWAY and MOORE, JJ.

CARAWAY, J.

The mother petitioned for joint custody of the three minor children five years after *472 the parents' divorce judgment which was rendered in March 2000. The father initially obtained sole custody by default judgment at the time of the divorce. In the present action, after two days of testimony, the trial court modified the sole custody award to joint custody and designated the mother as the domiciliary parent. The father objected, asserting the application of the rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). The father appeals the trial court's ruling as violative of the Bergeron rule and as not in the best interest of the children. We affirm.

Facts

Tracy McCready ("Tracy") and Patricia McCready Lynch ("Patricia") married in 1992 and separated in 1999 after three sons were born of the marriage: Jesse, age 11, Jacob, age 9, and Justin, age 8. In 2000, Patricia was served with Tracy's petition for divorce in which he requested sole custody of the children. In this proceeding, Patricia acknowledges that she failed to appear in the original divorce action in which Tracy obtained sole custody of the children. She explained that Tracy obtained representation through legal aid services and that she could not do likewise because of the conflict. Since she could not afford to hire private counsel, she was left unrepresented at the time of their divorce. Matters of record reveal that Patricia was never served with the March 2000 judgment and only learned of Tracy's designation as sole custodian eight months after the rendition of the judgment. Nevertheless, both Tracy and Patricia testified that between 2001 and 2004, they basically worked out a shared custody arrangement consisting of one week on and one week off.

The testimony indicated that Patricia did not finish high school and works part time as a waitress, two evenings a week. She primarily stays at home caring for the three children and two younger children born during the marriage with her new husband, Chris, who is attending Louisiana Tech University. During alternating weeks when Tracy has primary custody, Patricia looks after the boys in the mornings after Tracy drops them off on his way to work before the school bus picks them up in front of her house. Likewise, she cares for the children after school when the school bus drops the boys off at her house before Tracy picks them up after work.

Based on the evidence concerning this arrangement, the trial court found that Patricia and Tracy shared custody during the preceding years in spite of the formal custody order in Tracy's favor. The court awarded joint custody and designated Patricia the domiciliary parent. The trial court in its oral ruling directed the parties to implement a joint custody plan pursuant to which the children resided with Patricia during the school year. Tracy's custody is to extend for two out of every three weekends between Friday and Sunday, and through Monday in the event of a holiday. He is also given visitation on one evening during each week of the school year. Tracy's periods of custody also include the school vacation weeks of Spring Break and Thanksgiving. The parties were ordered to split custody during Christmas vacation. According to the trial court's oral ruling, the children were ordered to reside with Tracy during the summer beginning three days after the school year ended and concluding three days before school started. In the summer, Patricia would exercise visitation between Friday and Sunday on alternating weekends. Additionally, pursuant to the oral ruling, Patricia was to receive one full week of custody during the summer while the children resided with Tracy.

*473 The judgment designated Patricia the primary domiciliary parent, incorporated a custody visitation schedule in the form of a written "joint custody implementation plan" and ordered Tracy to pay $300.00 child support per month. The visitation schedule agreed to by the parties in the joint custody implementation plan differed slightly from the schedule articulated by the trial court in its oral ruling in the following particulars:

• The summer holiday from 72 hours after school is out until 72 hours before school starts back with PATRICIA ANN LYNCH having every other weekend and two weeks out of the summer holiday, upon the giving of thirty (30) days notice to TRACY McCREADY.
• PATRICIA ANN LYNCH will keep the children during each day that TRACY McCREADY is working during the summer.

Tracy appealed the custody judgment and Patricia answered the appeal.

Discussion

I.

Tracy first contends that the prior default judgment awarding him sole custody in 2000 was a considered decree, placing on Patricia the heavy burden of proof rule of Bergeron v. Bergeron, supra. The Bergeron rule states that 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 the change of environment is substantially outweighed by its advantages to the child. Id. at 1200.

The ruling in Bergeron was made after the 1977 codification of the best interest of the child principle which occurred by amendment to former Civil Code Article 157. That overriding rule is now set forth in Civil Code Article 131 which states that "[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." Bergeron affirmed that the evidentiary and procedural rule for the heavier burden of proof, though judicially created, would continue to apply in change of custody cases for the purpose of enforcing and protecting the child's substantive rights embodied in the best interest principle. See, Revision Comments (c) to La. C.C. art. 137. The concerns for ending litigation, preserving the child's established mode of living, conserving judicial resources and preventing inconsistent decisions underlay the formulation of the heavy burden of proof rule as recognized in the ruling of our supreme court.

In this case, the trial court did not apply the Bergeron burden of proof. Instead, using the lesser evidentiary standard applicable in change of custody disputes involving stipulated custody judgments or agreements, the court appropriately applied the test of whether there had been a material change in circumstances since the original custody decree was entered. See Evans v. Lungrin, 97-541, 97-577 (La.2/6/98) 708 So.2d 731. The court expressly found a material change of circumstances, and its reasons for that ruling, which Tracy admits as accurate and appropriate, have significance for the rejection of Bergeron in this case. The court found that based upon the practice of both parents after the default judgment, the actual custody of the children had been shared by the parents for four years. Although sole custody was awarded in the judgment, joint custody had almost always been practiced. Tracy concedes that if Bergeron

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Cite This Page — Counsel Stack

Bluebook (online)
924 So. 2d 471, 2006 WL 549242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccready-v-mccready-lactapp-2006.