Merriman v. Merriman

930 So. 2d 235, 2006 La. App. LEXIS 992, 2006 WL 1155164
CourtLouisiana Court of Appeal
DecidedMay 3, 2006
DocketNo. 05-1435
StatusPublished
Cited by1 cases

This text of 930 So. 2d 235 (Merriman v. Merriman) 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
Merriman v. Merriman, 930 So. 2d 235, 2006 La. App. LEXIS 992, 2006 WL 1155164 (La. Ct. App. 2006).

Opinion

GENOVESE, Judge.

hln this child custody case, the mother, Amanda Jeannine Stephens Merriman (Amanda), appeals the trial court’s judg[236]*236ment designating the father, Timothy L. Merriman (Timothy), as the primary custodial parent of their minor child, Timothy Skyler Merriman (Skyler). For the following reasons, we affirm.

FACTS

Timothy L. Merriman and Amanda Jeannine Stephens were married on June 11, 1998. Of their marriage, one child, Skyler, was born October 20, 1998. On January 14, 2000, Amanda filed a petition for divorce and incidental matters including child custody. On March 7, 2000, the parties entered into a stipulated judgment awarding the parties joint custody of Skyler, with Amanda being designated the primary custodial parent, subject to specified visitation in favor of Timothy. The legal history of the parties is voluminous, significant, and pertinent to our review of this matter.

The parties were granted a judgment of divorce in open court on September 8, 2000, and a written judgment was signed by the trial court on October 4, 2000. The matters incidental to the divorce were set for hearing on January 5, 2001. On January 4, 2001, Timothy filed a rule for contempt and change of custody which was also set for hearing on January 5, 2001. Timothy alleged that Amanda was in violation of the first judgment of March 7, 2000, by refusing to allow him any visitation whatsoever. Following the reciprocal rules, the parties again entered into a stipulated judgment which was signed by the trial court on February 15, 2001, wherein Amanda was again designated the primary custodial parent, subject to specific visitation rights in favor of Timothy.

On April 18, 2002, Amanda filed a petition for restricted visitation. The order [psigned by the trial court suspended Timothy’s visitation pending further orders of the court and set the matter for hearing on May 7, 2002. Amanda filed a motion to continue the May 7, 2002 hearing date, which was granted, and the matter was reset for hearing on June 27, 2002. Following another continuance, the matter was heard on July 29, 2002, at which time the trial court entered an interim order granting Timothy specified visitation with the minor child and resetting the matter for trial again on September 10, 2002. This trial fixing was eventually upset without the issuance of a new trial date.

On April 29, 2003, Timothy filed a motion to reset the pending matters, and the court set a hearing date of June 17, 2003. That hearing date was also continued, but the trial court issued an interim order granting Timothy specified visitation. A formal judgment was signed by the trial court on July 2, 2003 granting Amanda primary custodial status and awarding Timothy specified visitation.

The record reveals that Timothy filed three rules for contempt during the history of these proceedings. In addition to the rule for contempt along with a rule for change of custody filed on January 4, 2001, Timothy filed a rule for contempt on July 16, 2003, based upon Amanda’s refusal to make the minor child available for visitation. When the rule for contempt came before the trial court on October 9, 2003, another continuance was granted; however, the court modified the interim order and granted interim temporary custody to Timothy and reasonable visitation to Amanda until the next court date.

Timothy’s motion for change of custody and for contempt was heard by the trial court on January 8, 2004. The minutes of the court reflect that on this date the trial court found Amanda in contempt of court, awarded joint custody of Skyler to both parties, and maintained Amanda as the domiciliary parent. A judgment on rule lowas signed by the court January 10, 2005, [237]*237which included a joint custody plan setting forth reasonable visitation privileges in favor of Timothy.

On August 27, 2004, Timothy filed another rule for contempt and motion for modification of custody. This motion again alleged that Amanda failed to make the child available for visitation according to the previous court-ordered visitation schedule. Additionally, Timothy alleged that following the hearing of January 8, 2004, and despite revisions made at her request, Amanda failed to sign the joint custody plan outlining the orders of the court. Timothy also asserted therein that the best interest of the child would be served by the trial court awarding him sole custody based upon Amanda’s “inability, or refusal, to provide a stable home environment for the minor child, and based on her flagrant disregard for [the] Court’s order.” Timothy also alleged that there had been “a material change in circumstances since the January 8, 2004 decision, and ... that it [was] likely the current custodial situation [would] be harmful to the child if it [was] not changed.”

Following two continuances of the original hearing date, on March 15, 2005, the rule for contempt and the motion for modification of custody filed by Timothy were heard by the trial court. The trial court again found Amanda to be in contempt of court for failing to bring the minor child for court-ordered visitation. Additionally, the trial court found sufficient evidence to warrant the modification of the previous custodial award, and named Timothy as the primary custodial parent of Skyler, subject to reasonable visitation privileges in favor of Amanda as outlined in the joint custody plan. The trial court signed a written judgment on rule on July 25, 2005. It is from this judgment that Amanda appeals.

ISSUES

The following issues are presented by Amanda for our review:

[41. Whether the trial court failed to properly apply the standard required of a considered custody decree and abused its discretion in changing the primary custodial status of the minor child from the mother to the father.
2. Whether the trial court erred in allowing Plaintiffs exhibit TM-1 to be entered into evidence

LAW AND ARGUMENT

In A.E.B. v. J.B.E., 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 760-61 (footnote omitted), the Louisiana Supreme Court summarized the guidelines, burden of proof, and standard of review required in matters involving change of custody when there is a considered custody decree, stating as follows:

La.Civ.Code art. 131 provides 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.” Comment (d) to article 131 states that the article should be followed in actions to change custody as well as in those to initially set it. Comment (d) further states that the jurisprudential requirements of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), are applied to actions to change custody rendered in considered decrees. In such actions, the proponent of change must show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody. Bergeron, 492 So.2d at 1195. The party seeking a change “bears the 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 [238]*238be caused by a change of environment is substantially outweighed by its .advantages to the child.”

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Cite This Page — Counsel Stack

Bluebook (online)
930 So. 2d 235, 2006 La. App. LEXIS 992, 2006 WL 1155164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/merriman-v-merriman-lactapp-2006.