Mulkey v. Mulkey

108 So. 3d 116, 2012 La. App. LEXIS 1469, 2012 WL 5499951
CourtLouisiana Court of Appeal
DecidedNovember 14, 2012
DocketNo. 47,748-CA
StatusPublished
Cited by1 cases

This text of 108 So. 3d 116 (Mulkey v. Mulkey) 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
Mulkey v. Mulkey, 108 So. 3d 116, 2012 La. App. LEXIS 1469, 2012 WL 5499951 (La. Ct. App. 2012).

Opinion

MOORE, J.

11 This is an appeal of a judgment modifying a joint custody plan by designating the father as domiciliary parent of the 14-year-old male child in place of the mother, terminating the father’s support obligation, and ordering the mother to pay child support. The mother filed this appeal, contending that the trial court abused its discretion by failing to follow the standard for modification of a established custody decree set by Bergeron v. Bergeron.1 After review, we reverse the ruling, reinstate the original custody plan and remand to the trial court with instructions.

FACTS

Phillip Ray Mulkey (“Phillip”) and Vicki Juanita Harris Mulkey Pyles (“Vicki”) were married on June 26, 1993, and established their matrimonial domicile in Winnsboro, Louisiana. They had one child during their marriage, Matthew Harris Mulkey, who was born on January 19, 1998. The couple separated on April 14, 2000.

On June 8, 2000, the parties entered into a consent decree in which they were granted joint custody of Matthew and agreed to implement a joint custody plan whereby both parents would share equal custodial periods. Phillip was ordered to pay Vicki $147.50 in child support monthly. The consent judgment incorporating these elements was rendered on August 24, 2000.

Phillip filed a rule to finalize the divorce on February 26, 2001, which was granted on March 5, 2001. The divorce judgment included a joint custody implementation plan which provided equal custodial periods with | ¡Matthew. Phillip’s child support obligation was increased to $450.00 per month to accommodate Matthew’s daycare expenses. The plan provided that the custodial arrangement would continue until August 2003 when the issue would be revisited as Matthew reached school age.

Prior to August 2003, on April 15, 2003, Vicki filed a rule to modify custody and increase child support seeking domiciliary custody of Matthew. Vicki also sought [118]*118child support and requested that Phillip be ordered to pay his share of Matthew’s medical expenses. Phillip filed an answer to the rule and a reconventional demand seeking to be named the domiciliary parent and child support for Matthew in his favor.

After a trial spanning three separate days, the court awarded Phillip and Vicki joint custody, while naming Vicki domiciliary parent and giving her primary custody during the school year. Phillip was granted extensive weekend (every other weekend), holiday and summer visitation. Phillip was ordered to pay $200 per month child support during the school year, $100 per month for June and July, and $125 for the month of August each year. Vicki was ordered to provide health and dental insurance covering Matthew and Phillip was ordered to pay 43% of any uncovered medical, dental and related expenses. She was also awarded the right to claim Matthew on her federal and state income tax and any earned income credit therewith. This considered custody decree was signed and filed into the record on December 9, 2004. No appeal was taken from the judgment incorporating that ruling.

The instant dispute began in July 2011, when Vicki filed a rule for payment of medical expenses and rule to show cause for judgment of past |adue medical support, contempt and attorney fees. Vicki alleged that Phillip had failed to pay his share of Matthew’s uncovered medical expenses amounting to several thousand dollars, and for several hundred dollars for extracurricular activities. Vicki also requested an increase in child support.

Phillip responded with an answer and reconventional demand seeking modification of the joint custody plan in which he would be named domiciliary parent. He requested that his child support obligation be terminated and Vicki ordered to pay him child support. Beginning in 2012, he requested that he be allowed to claim Matthew on his federal and state income tax returns. He also requested relief from Vicki’s failure to maintain health insurance and her refusal to share information with him regarding any proposed medical care for Matthew.

A hearing officer conference was held on November 21, 2011, followed by a recommendation from the hearing officer that Vicki be granted judgment for $4,282.02 as Phillip’s share of uncovered medical expenses and $486.11 for extracurricular activity expenses. The hearing officer also found that Phillip had not carried his burden of proof under Bergeron v. Bergeron, supra, to warrant modification of the joint custody plan currently implemented. Phillip filed a timely objection to the recommendation on December 9, 2011.

The matter came to trial on February 10, April 9 and April 18, 2012. Prior to calling any witnesses, the parties informed the court that a settlement had been reached on all matters except Phillip’s request for modification of custody, child support and income tax-related issues and Vicki’s request for an increase in child support.

I/The trial court interviewed Matthew first utilizing the Watermeier protocol.2 The court asked Matthew several questions related to school, his friends, his relationship with his parents, siblings from both families, his likes and dislikes, health issues, and daily routine. Briefly summarizing, Matthew stated that he liked and got along well with both his parents, stepfather and stepmother, and stepbrothers, half brothers and half sister. He has several friends who live close to his home in [119]*119Ruston. His only complaint about the school he attends was that he did not like the noise in the cafeteria. Similarly, he has a very close friend nearby at his father’s home in Winnsboro — his cousin Michael Sullivan.

During the school week at his mother’s house, Matthew usually fixes his own breakfast after his stepfather, Todd Pyles, awakens him and his younger half-brother, Landry, to get dressed for school. Todd is employed as a substitute bus driver and leaves for work around 6:30 a.m. Vicki arrives home in the morning about 7:10 a.m. from her night shift job in time to take him to school each day. She also picks him up from school each day. She takes Matthew to guitar lessons once a week; he also plays clarinet in the school band. Matthew has several close friends who live on his street or in his neighborhood. He recently started playing golf and hopes to play on the school team. Matthew spends considerable time in his room at his mother’s house playing video games on his Xbox.

Matthew’s mother takes him to the doctor, including his pediatrician when he is sick, his diabetes doctor, and his eye doctor once a year. |sMatthew has Type I diabetes, sometimes called juvenile diabetes. He wears an insulin pump to regulate insulin. He would prefer to get a daily shot, but his mother and his diabetes physician want him to use the pump because it can better control the fluctuations in his blood sugar. He sees his diabetes physician every three weeks now because his blood sugar has been fluctuating significantly. The diabetes pump has somewhat limited his participation in sports.

The court allowed Matthew to state, if he wished, what parent with whom he would prefer to live. Matthew told the court that he would like to spend the remaining four years with his father before he goes out on his own, since he has spent the last nine years with his mother. He stated that the reason for wanting to change custody is that most of the people he has a relationship with in Winnsboro are family.

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Related

Mulkey v. Mulkey
118 So. 3d 357 (Supreme Court of Louisiana, 2013)

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Bluebook (online)
108 So. 3d 116, 2012 La. App. LEXIS 1469, 2012 WL 5499951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulkey-v-mulkey-lactapp-2012.