Plunkett v. Plunkett

576 So. 2d 100, 1991 WL 25845
CourtLouisiana Court of Appeal
DecidedFebruary 27, 1991
Docket22111-CA
StatusPublished
Cited by5 cases

This text of 576 So. 2d 100 (Plunkett v. Plunkett) 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
Plunkett v. Plunkett, 576 So. 2d 100, 1991 WL 25845 (La. Ct. App. 1991).

Opinion

576 So.2d 100 (1991)

Ronald Troy PLUNKETT, Appellee,
v.
Evelyn Lee Culpepper PLUNKETT, Appellant.

No. 22111-CA.

Court of Appeal of Louisiana, Second Circuit.

February 27, 1991.

*101 William R. Jones, Coushatta, for appellee.

Stewart & Stewart by Jonathan M. Stewart, Arcadia, for appellant.

Before MARVIN, NORRIS and HIGHTOWER, JJ.

NORRIS, Judge.

The mother, Evelyn Plunkett, appeals a judgment that denied her request to modify a prior joint custody decree. She advances two arguments:

(1) The trial court erred in applying the "heavy burden" rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) to this case, which did not involve a prior considered decree of permanent custody; and
(2) The trial court erred in restricting the evidence, insofar as it pertained to custody, to events that occurred after a prior custody rule was tried.

For the reasons expressed, we affirm.

Procedural background

The father, Ronald Plunkett, filed a petition for separation on March 31, 1988, alleging that Evelyn had abandoned him one week earlier, on March 24. He prayed for joint custody and submitted two plans of implementation. Mrs. Plunkett filed an answer and reconventional demand alleging that she left because they had an altercation which forced her to flee with the two minor children, Mathew and Timothy, ages 9 and 6. She prayed for an ex parte order of provisional sole custody.

Rules for custody (as well as for child support and alimony pendente lite) were consolidated and heard on April 21, 1988. The transcript of this hearing was included in the record on motion of the appellee, Ronald Plunkett. Both Mr. and Mrs. Plunkett testified that they loved the children and could care for them during custodial time. They had separated before but reconciled, according to Mrs. Plunkett, when Ronald promised that certain things would change around the house, but he had not lived up to these promises. They also disagreed about raising the children; Mrs. Plunkett felt Ronald was too willing to keep them out of school to help on the farm, which she disapproved of. In fact, on the date of their separation they had fought over this. Seven other witnesses, including two of Mr. Plunkett's children of an earlier marriage, testified as to the parties' respective merits as loving, caring parents; the general concensus was that both Mr. and Mrs. Plunkett were fit to exercise custody. The trial court ruled that joint custody was appropriate and a six month-six month split was feasible. By judgment of May 27, 1988 the court awarded joint custody, naming Mrs. Plunkett the domiciliary parent from January 1 to July 10 (the *102 better to divide the summer vacation) and Mr. Plunkett from July 10 to December 31, with provisions for visits and holidays. Mr. Plunkett was to pay child support of $500 per month only in months when Evelyn had domiciliary custody. Alimony pendente lite was also awarded. Although Mrs. Plunkett had prayed for provisional custody and there was no judgment of separation yet, the May 1988 custody decree was not designated as provisional, temporary or pendente lite. She moved for a new trial but this was denied. She did not appeal.

A few months after Mr. Plunkett began his custodial time, Mrs. Plunkett amended her reconventional demand. She alleged that Ronald was committing adultery with a certain lady, "M.P.," while the children were in the house. Alleging that this immoral behavior was detrimental to the children, she prayed for a summary hearing to award her sole custody. She also sought a divorce on grounds of adultery; Mr. Plunkett answered and by rule sought a reduction of alimony pendente lite.

These rules were consolidated and heard on November 10, 1988. According to the court minutes, testimony was introduced, exhibits entered and filed into evidence and the matter heard to its conclusion. This hearing, however, was not designated as part of the appellate record by the appellant, Evelyn Plunkett, and it is not before us. The court denied the change of custody and by judgment of December 14, 1988 ordered the original joint custody plan to be continued. The court also granted Ronald's request to reduce alimony pendente lite.

In April 1989 Mr. Plunkett amended his petition to pray for divorce on grounds of continuous separation for one year or more, La.R.S. 9:301. In response, Mrs. Plunkett amended her reconventional demand to restate Ronald's pre-separation fault and to pray for sole custody with more restricted visitation. The parties partitioned their community property by agreement but proceeded to trial in October 1989 on all other issues. The minutes again recite that testimony was entered, exhibits filed into evidence and the matter heard to its conclusion. Mrs. Plunkett, however, designated only her own and Ronald's testimony and the trial court's oral reasons for judgment as part of the appellate record. She also designated a narrative of the children's in camera testimony but the parties were unable to agree on a narrative so none was filed.

At the October 1989 trial Mrs. Plunkett testified that "On many occasions, several times a month since November 10 [1988] she [M.P.] has come down to the house late at night. I did not write any dates down, it never occurred to me. I was usually in bed * * *. By the time I got down the lane [M.P.] would be entering the house and she'd head straight for Ronald's bedroom." R.p. 223. Mr. Plunkett admitted that M.P. paid him short visits before November 1988 but never after. R.p. 189. He admitted that when she had visited, they would shut (but not lock) the door to keep the children out. Mrs. Plunkett filed, as Exhibit D-2, a report from a private investigator who followed Ronald for three days in late August 1988. The court apparently accepted this pre-November 1988 evidence to prove adultery for the divorce but not to prove Mr. Plunkett's parental unfitness. The report states that M.P. visited Mr. Plunkett at his house on three consecutive nights, but she always came late, when the children were in bed.

In oral reasons the trial court stated that Bergeron applied to Mrs. Plunkett's custody rule and that there was "not a change of circumstances to justify a change [of custody]." The court denied her rule and incorporated the prior joint custody decree. The court granted Mrs. Plunkett a divorce on grounds of Ronald's adultery but found both parties at fault at the time of the separation. Judgment was rendered in November 1989 and Mrs. Plunkett's motion for new trial was denied. Evelyn has appealed.

Discussion

By her first assignment Mrs. Plunkett urges the trial court erred in applying the "heavy burden" rule of Bergeron v. Bergeron, supra, to this case. The law creates *103 a rebuttable presumption that joint custody is in the best interest of a minor child. La.C.C. art. 146 C. Joint custody may be terminated if the child's best interest requires modification or termination of the custody plan. Art. 146 E. Under Bergeron, however, the party seeking to modify a considered decree of permanent custody must prove a change of circumstances materially affecting the child. Mrs. Plunkett cites the following language from Bergeron:

When a trial court has made a considered decree of permanent custody

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Bluebook (online)
576 So. 2d 100, 1991 WL 25845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plunkett-v-plunkett-lactapp-1991.