Michael David Thompson v. Yetta Emma Fernandez Concina

• Court: Louisiana Court of Appeal
• Decided: March 6, 2013
• Docket: CA-0012-1334
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

12-1334

MICHAEL DAVID THOMPSON

VERSUS

YETTA EMMA FERNANDEZ CONCINA

**********

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON, NO. 83,402, DIV. C HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

J. DAVID PAINTER JUDGE

Court composed of Elizabeth A. Pickett, J. David Painter, and Phyllis M. Keaty, Judges.

AFFIRMED.

Lucretia P. Pecantte P.O. Box 9010 New Iberia, LA 70562-9010 (337) 374-1202 COUNSEL FOR DEFENDANT-APPELLANT: Yetta Emma Fernandez Concina

Jack L. Simms, Jr. P.O. Box 1554 Leesville, LA 71496 (337) 238-9393 COUNSEL FOR PLAINTIFF-APPELLEE: Michael David Thompson PAINTER, Judge.

Yetta Emma Fernandez Concina (Ms. Concina) appeals a judgment granting

a modification of custody designating her ex-husband, Michael David Thompson

(Mr. Thompson), as the domiciliary custodial parent of their minor daughter and

granting Mr. Thompson the right to relocate with the child to Kansas. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Concina and Mr. Thompson are both soldiers on active duty in the

United States Army. They were married and divorced in Hawaii. Of the marriage,

one child, Mina Mercedes Thompson (Mina), was born. Mina was one and a half

years old at the time the parties divorced on July 23, 2004. The Hawaiian court

awarded joint custody of Mina and designated Ms. Concina as physical custodian

while both parties were still stationed in Hawaii. On July 17, 2004, Ms. Concina

was stationed at Fort Meade, Maryland, and Mina relocated with her. At some

point in 2010, both Ms. Concina and Mr. Thompson were stationed at Fort Polk in

Vernon Parish, Louisiana. Mina, however, lived in New Jersey with her maternal

grandparents and was not brought to Louisiana.

Mr. Thompson filed a petition for recognition and modification of the

Hawaiian custody judgment in the Thirtieth Judicial District Court in Vernon

Parish. A hearing was held on January 3, 2011; however, Ms. Concina was not

present as she was deployed to Afghanistan, but she was represented by an

attorney. The trial court recognized and made executory the Hawaiian judgment

but modified it by granting Mr. Thompson primary custody of Mina until

December 31, 2011, and suspending the child support payments to be made by Mr.

Thompson from January 3 to December 31, 2011. The trial court further granted

Ms. Concina visitation rights during periods of her military leave. The judgment of the trial court specifically stated that the modification was due solely to the

deployment of Ms. Concina. After the signing of this judgment, Mr. Thompson

went to New Jersey to pick up Mina; however, she was not with her maternal

grandparents who were supposed to be caring for her. Mina was with Ms.

Concina’s sister who refused to give the child to Mr. Thompson. Ms. Concina

apparently returned from Afghanistan at some point during this time. The

intervention of police in New Jersey and Vernon Parish was required in order for

Mr. Thompson to gain physical custody of Mina.

Mina resided in Vernon Parish with her father, stepmother, and two half-

sisters beginning on January 15, 2011. Mr. Thompson filed a second rule for

modification of custody, but a hearing on the rule was delayed because both Ms.

Concina and Mr. Thompson were deployed overseas. While Mr. Thompson was

deployed, Mina stayed with her stepmother at Fort Polk. Mr. Thompson returned

to Fort Polk in October of 2011, and Mina remained with him at Fort Polk until

January of 2012, when Mr. Thompson relocated with his family, including Mina,

in accordance with his new duty station at Fort Leavenworth, Kansas. Ms.

Concina is presently stationed in Colorado.

A trial on the custody matter was held June 8, 2012. At that time, the trial

court awarded joint custody of Mina to the parties and named Mr. Thompson as the

domiciliary custodial parent subject to visitation by Ms. Concina. Mina was to

continue to live with Mr. Thompson in Kansas subject to weekend visitation by

Ms. Concina as long as a one-week notice was given. Ms. Concina was also given

physical custody of Mina for six weeks in the summer. Holiday visitation was to

be on a rotating schedule. The relocation to Kansas was allowed. No ruling was

made as to child support since there was no evidence presented with respect

thereto. Ms. Concina now appeals seeking to have the judgment of the trial court 2 reversed and to have Mr. Thompson found in contempt of court. For the reasons

that follow, we affirm the trial court’s judgment in its entirety.

DISCUSSION

In this case, the trial court applied the standard set forth by Bergeron v.

Bergeron, 492 So.2d 1193, 1200 (La.1986) concerning changes in a considered

custody decree, as follows:

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 to the child.

Moreover, we note that the trial court is in the best position to evaluate the best

interest of the child from its observations of the parties and witnesses such that we

must give the trial court’s determination great weight on appeal, and the trial

court’s determination as to custody will not be disturbed unless there is a clear

abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676

So.2d 619, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

Ms. Concina asserts that the trial court erred in finding that Mr. Thompson

proved by the Bergeron standard that joint custody with Mr. Thompson being

designated as the domiciliary parent would be in the best interest of Mina. We do

not agree. The trial court noted the change in circumstances brought about by the

numerous deployments and relocations necessitated by the parties’ statuses as

active duty military personnel. The trial court further considered Ms. Concina’s

actions in attempting to keep Mina from Mr. Thompson. After Mina moved in

with her father and stepmother, she was in a stable environment and doing well in

school. We find no abuse of discretion in the trial court’s decision to award joint

3 custody to both parties and name Mr. Thompson as the domiciliary custodial

parent.

Ms. Concina also argues that the trial court erred in granting Mr. Thompson

the right to relocate to Kansas with Mina. “If a custodial parent gives the

appropriate relocation notice, the proposed relocation “shall not constitute a

change of circumstances warranting a change of custody.” La.R.S. 9:355.11

(emphasis added).” Hillman v. Davis, 02-0685 (La.App. 3 Cir. 12/11/02), 834

So.2d 594. But even where the required relocation notice is not given, a

modification of custody is not mandatory. Id. At the time of the hearing at issue

herein, Mr. Thompson and Mina had already moved to Kansas. Ms. Concina

offered no evidence that the move was not in Mina’s best interest.

We further find no error in the trial court’s refusal to find Mr. Thompson in

contempt of court.

DECREE

We affirm the trial court’s judgment in its entirety. Costs of this appeal are

assessed to Defendant-Appellant, Yetta Emma Fernandez Concina.