Nichole Woods Hensgens v. Charles Nicholas Hensgens

• Court: Louisiana Court of Appeal
• Decided: April 2, 2008
• Docket: CA-0007-1508
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-1508

NICHOLE WOODS HENSGENS

VERSUS

CHARLES NICHOLAS HENSGENS, III

**********

APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-632-04 HONORABLE WENDELL MILLER, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir and Glenn B. Gremillion, Judges.

AFFIRMED.

Walter M. Sanchez Lorenzi, Sanchez & Barnatt, LLP 518 Pujo Street Lake Charles, LA 70601 (337) 436-8401 Counsel for Defendant/Appellant: Charles Nicholas Hensgens, III

Todd H. Melton Todd H. Melton, L.L.C. P. O. Box 847 Lake Charles, LA 70602-0847 (337) 439-2979 Counsel for Plaintiff/Appellee: Nichole Woods Hensgens DECUIR, Judge.

In this case, a father appeals the trial court’s denial of his request to modify a

prior stipulated custody decree. For the reasons that follow, we affirm.

FACTS

Nichole and Charles Hensgens married in 1991. Four children were born of

the marriage. When the Hensgens separated in 2004, the children were 12, 11, 8, and

3 respectively. The parties shared custody equally prior to their divorce becoming

final and stipulated to an evaluation by Dr. Ken Bouillion of Lafayette. In August

2005, based in part on that evaluation, the parties stipulated to joint custody with

Nichole as domiciliary parent. Given the high level of conflict within the family, they

also stipulated to further family counseling with Dr. Bouillion. At some point, Dr.

Bouillion became concerned about the performance of the older three children in

school and their confrontational behavior toward their father which he attributed to

the inappropriate sharing of adult information. Specifically, he cited Nichole’s

intentional or negligent exposure of the oldest son to a deposition which revealed his

father’s marital infidelity. In April 2006, Dr. Bouillion recommended a change in

domiciliary status of the children, especially the two eldest boys.

On April 26, 2006, Charles filed pleadings seeking to modify the domiciliary

status of the children. With the hearing set for October and the school year soon to

commence, the trial court set a telephone status conference in August 2006. Over

Nichole’s objection, the court ordered implementation of a hybrid custody

arrangement recommended by Dr. Bouillion wherein the two older boys were

domiciled with Charles and the younger girl and boy were domiciled with Nichole.

After the October 2006 trial, the court declined to follow Dr. Bouillion’s

recommendation, in part because he felt that Dr. Bouillion had lost his objectivity

because of the dual role as evaluator and counselor thrust upon him by the court. Accordingly, the trial court vacated the interim custody arrangement and reinstated

the August 2005 stipulated agreement with the addition of an alternating seven day

pattern for the summer months.

Charles lodged this appeal.

DISCUSSION

On appeal, Charles contends that the trial court erred in not following the

recommendation of Dr. Bouillion that custody be modified. He specifically argues

that Dr. Bouillion’s recommendation should not be discounted because the court’s

demands created a conflict of interest. We decline to discuss the ethics of dual

relationship psychology in rural communities, believing it only masks the underlying

issue.

“[W]here the original custody decree is a stipulated judgment, the party seeking

modification must prove (1) that there has been a material change of circumstances

since the original custody decree was entered, and (2) that the proposed modification

is in the best interest of the child.” Evans v. Lungrin, 97-541, 97-577, p. 13 (La.

2/6/98), 708 So.2d 731, 738. “On appeal, a trial court’s ruling on a change of custody

request may only be disturbed if the reviewing court determines that the trial court

abused its discretion in making its ruling.” Hillman v. Davis, 02-685, p. 5 (La.App.

3 Cir. 12/11/02), 834 So.2d 594, 598.

Because the present custody decree is a stipulated judgment, Charles must

prove both prongs of the Evans standard: 1) that a material change in circumstances

has occurred since the entry of the stipulated judgment and; 2) that his proposed

modification is in the best interest of his children.

In its oral reasons, the trial court did not make a specific finding regarding a

material change in circumstances. However, it is clear from the record that Charles

2 failed to carry his burden of proof regarding this prong of the Evans test. The only

evidence presented by Charles suggesting a change in circumstances was the

recommendation of Dr. Bouillion and the allegation regarding the revelation of his

infidelity to his oldest son. The trial court clearly believed both parties to be guilty

of exposing the children to adult issues and unnecessary conflict. Moreover, while

the children’s troubles in school and change in attitude toward their father are

unfortunate, they do not constitute a material change in circumstances sufficient to

compel us to conclude the trial court abused its discretion in not recognizing it.

Likewise we cannot say that the trial court abused its discretion in concluding that it

is in the best interest of the children to be together.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant, Charles Hensgens.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.