Mercer v. Mercer

249 So. 3d 924
CourtLouisiana Court of Appeal
DecidedApril 11, 2018
DocketNo. 52,101–CA
StatusPublished
Cited by2 cases

This text of 249 So. 3d 924 (Mercer v. Mercer) 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
Mercer v. Mercer, 249 So. 3d 924 (La. Ct. App. 2018).

Opinion

PITMAN, J.

*926Plaintiff Holli Henry Mercer appeals the judgment of the trial court which modified a 2009 considered decree of child custody, equally dividing the time of physical custody of the child between Plaintiff and her ex-husband, Defendant Tommy O. Mercer, and designating Defendant as the domiciliary parent. For the following reasons, we affirm.

FACTS

Plaintiff and Defendant married on December 31, 2005, in Mangham, Louisiana. Their son, Dalton H. Mercer, was born on March 26, 2008. The parties separated in July 2008; and, on August 15, 2008, Plaintiff filed a petition for divorce and sought custody of their then four-month-old child.

In 2009, a two-day trial was held to determine the custody of Dalton. The trial court issued a 24-page ruling that named Plaintiff the domiciliary parent from September through May. Defendant was given visitation every other weekend during the school year and split time during the holiday period. During the summer months of June, July and August, Dalton primarily resided with Defendant, and Plaintiff was granted visitation every other weekend. During the course of the next few years, the every-other-weekend visitation period was extended from Friday night until Tuesday.

In August 2016, Defendant filed a petition to modify custody to an even 50/50 time split. In support of his petition, he alleged that Dalton was now 8 years old and entering third grade for the 2016-2017 school year. He also alleged that he had remarried, to Christina Mercer, and that together they have a son, Dillon, who was born in 2011 and would be attending Mangham Elementary for the 2016-2017 school year. He further alleged that he and Christina have, and will continue to provide, an excellent home environment for Dalton, where he can spend time with his younger brother. He complained that Plaintiff had unilaterally changed Dalton's school enrollment from Start Elementary to Family Christian Community School ("FCCS") in Winnsboro and that he wants custody of Dalton to enroll him in Mangham Elementary with his younger brother so that Dalton can spend more time with him and his family.

A conference was held before a hearing officer in September 2016. Prior to the close of the evidence, Plaintiff raised an exception of no right of action and claimed that Defendant's evidence did not meet the standard set forth in Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986). The hearing officer recommended that the petition to modify custody be denied.

Defendant objected to that recommendation and asked that the matter be set for trial. Plaintiff also filed an objection to the hearing officer's report and contended that she objected to Defendant having a four-day weekend period from Friday until Tuesday. She claimed the visitation was disrupting to the minor child and his school, that his grades had fallen and his behavior was becoming worse. She asked that, at a maximum, Defendant be awarded visitation only every other weekend from Friday until Sunday and that the schedule be followed year round. If implemented by the trial court, this suggested visitation plan would have effected an extreme deviation from the considered decree rendered in 2009 since, under the considered decree, Defendant has custody of the child during the summer months and Plaintiff only has visitation during that time period.

The trial was held on March 6, 2017. Plaintiff reurged her exception of no right of action. The trial court took the exception *927under advisement and allowed the trial to proceed.

At the trial, Molly Govener was called as an expert witness, who testified that she is a licensed professional counselor with a Ph.D. in marriage and family therapy. She testified that she had met with Plaintiff and Dalton in regard to the custody case and that Plaintiff had reported to her seeing "some anger in Dalton that was not normal" and some indications of stress. She stated, however, that she had observed nothing of any significance in either parent's home that would concern her. She did opine that the current custody plan was working out and that Dalton had told her he liked the custody plan and liked to visit his dad. She stated that he "prefers that his main home be with his mom" and seems well adjusted to the current schedule. She further opined that Dalton should be allowed to continue to live primarily with Plaintiff and visit Defendant and that the two parents should be in some type of family therapy.

Defendant testified regarding the allegations in his petition to modify custody and reiterated the facts that he had remarried, that he had a son by his second marriage, that Dalton loves his brother and that Defendant is willing and able to spend more time with Dalton than he was previously able to in 2010. He also testified that he believed Mangham Elementary would be a better school for Dalton for several reasons, including that he would be comfortable there with his younger brother and that he would be able to spend more time with his father's family. He admitted that since the rendition of the considered decree, he had been brought to court over allegations of unpaid child support, at one time as much as $11,000, but that he has paid the balance and that he was current for the two years prior to trial.

Defendant was questioned regarding his decision to change Dalton's school for a third time if he should obtain custody. Although he agreed he did not know which school was the better one, he stated that Dalton's grades were good and had not slipped as a result of Plaintiff changing his school. He discussed his living and work history and stated that he had worked at a plumbing company for two years, then left to go back to a land rig for a year and a half. He currently works for Mercer Air Conditioning, which is owned by his brother.

George Broadway, Defendant's stepfather, testified that he has known Defendant since he was three years old and that he had been aware of the custody issue in this case since it began in 2009. He stated that he sees Defendant two or three times a week and has observed him spending time with Dalton, especially since Dalton has gotten older. He stated, for example, that Defendant coaches Dalton's ball team and takes him hunting. He also stated that he has never seen Defendant abusing or neglecting Dalton. He testified that he had observed Christina interacting with Dalton and Dillon and stated that, from a parental standpoint, she treats both children the same. He noted that he has seen Christina helping Dalton with his homework.

Christina Mercer testified that she was comfortable with Dalton spending more time in her home and that it would not cause any burden, financial or otherwise, on the family. She stated that she is self-employed and is able to drive him to school and pick him up. She testified that they live in a three bedroom, two-bath home and that the two boys share a room with bunk beds.

Plaintiff testified about all the things she does for Dalton and that Defendant and Christina had spoken to Dalton about the legal proceedings and attempted to influence *928him, telling him he "better at least choose 50/50." She testified that this causes great stress for Dalton, as does Defendant's telling him about his child support payments to her.

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Cite This Page — Counsel Stack

Bluebook (online)
249 So. 3d 924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-v-mercer-lactapp-2018.