Ramona Ann Marcentel Winzor v. Robert Wade Winzor

• Court: Louisiana Court of Appeal
• Decided: October 1, 2003
• Docket: CA-0003-0329
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

03-329

RAMONA ANN MARCANTEL WINZOR

VERSUS

ROBERT WADE WINZOR

************

APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT, PARISH OF ALLEN, NO. 98-237, HONORABLE JOHN P. NAVARRE, DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of Oswald A. Decuir, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.

AFFIRMED.

K. Ray Rush Attorney at Law Post Office Box 704 Oakdale, Louisiana 71463 (318) 335-2759 Counsel for Plaintiff/Appellee: Ramona Ann Marcantel Winzor

W. Mitchell Redd Attorney at Law Post Office Box 3717 Lake Charles, Louisiana 70602-3717 (337) 433-8529 Counsel for Defendant/Appellant: Robert Wade Winzor SULLIVAN, Judge.

Robert Wade Winzor appeals the trial court’s denial of his request to become

the domiciliary parent of his three children. For the following reasons, we affirm.

Facts

Robert Wade Winzor (Wade) and Ramona Debarge were previously married

to each other. While married they had three children, T.A.W., born December 21,

1988; M.W.W., born December 28, 1993; and A.K.W., born January 28, 1997. The

couple separated June 15, 1997, when Wade left the marital domicile in Monroe,

Louisiana. Ramona, having no family in Monroe, returned to her hometown of

Kinder to be near her family for support. They were divorced in October 1998. On

February 8, 1999, pursuant to stipulations by the parties, a consent judgment,

approving a joint custody plan, support payments, and medical expense

reimbursement was signed. The custody plan provided for Wade and Ramona to

share joint custody of the children with Ramona being the domiciliary parent and

Wade having visitation privileges which were outlined in the plan.

In June 2002, the children went to Wade’s home in Reeves for summer

visitation. During that time, T.A.W. requested of Ramona that she be allowed to live

with her father. While initially refusing, Ramona agreed to the request in early July.

With Ramona’s knowledge, Wade registered T.A.W. to attend school in Beauregard

Parish. After school started, Wade asked Ramona to amend the custody plan to

reflect that he was the domiciliary parent of T.A.W. Ramona refused and thereafter

requested that Wade return T.A.W. to her home. At trial, Ramona testified that, prior

to allowing T.A.W. to move to Wade’s, she told Wade and T.A.W. that her

permission was for a trial basis only. This was not disputed. On August 27, 2002,

she filed a report with the Allen Parish Sheriff’s Department because Wade refused to return T.A.W. to her. T.A.W. was scheduled to visit Ramona the weekend of

August 30, 2002. That evening, Wade’s mother and uncle brought T.A.W. to the

parties’ usual exchange location, but T.A.W. refused to go with Ramona. Ramona

sought the assistance of the Allen Parish Sheriff’s Department to obtain custody of

T.A.W., but the Sheriff’s Department would not remove T.A.W. from Wade’s custody

without a court order, and Wade would not force T.AW. to go with Ramona. On

September 5, 2002, Ramona filed a rule for contempt, and Wade filed a rule to modify

the custody plan: Ramona sought to enforce the 1999 custody plan; to have the court

order Wade to pay his share of the children’s medical expenses; and to hold Wade in

contempt, and Wade sought to amend the custody plan to designate him as

domiciliary parent of the children. Wade obtained an order allowing T.A.W. to live

with him until a hearing on the rules could be held. After the hearing, the trial court

designated Ramona as domiciliary parent of the children and ordered that Wade

reimburse her $2,556.62 in medical expenses. The trial court did not hold Wade in

contempt.

When this matter was tried, T.A.W. was thirteen years old, M.W.W. was almost

nine years old, and A.K.W. was five years old. T.A.W. is a bright, intelligent, normal

young lady. She testified in chambers and expressed her desire to live with Wade.

M.W.W. has been diagnosed as globally developmentally delayed and has slight

mental retardation. He has some autistic characteristics and some anger-control

problems. Teaching M.W.W. and caring for him requires much patience and

persistence. A.K.W. has a serious heart defect which has required two open-heart

surgeries and one closed-heart surgery. The first surgery was performed when she

was four-weeks old. Her most recent surgery was during the summer of 2001. Her

2 activities, medications, meals, and physical status must be closely monitored.

Ramona testified that M.W.W. and A.K.W., especially A.K.W., missed T.A.W. while

she lived with Wade.

Wade appeals only the denial of his request for change in domiciliary

designation. He assigns six errors by the trial court. Five of the assigned errors relate

to factors enumerated in La.Civ.Code art. 134. Specifically, he asserts that the trial

court failed to consider the facts of the case as they relate to factors (1), (4) and (9),

(5), (10), and (12). His last assignment is that the trial court erred in finding that the

best interest of the children is served by living together. In the alternative, Wade

seeks custody of T.A.W. individually.

Law and Discussion

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. In addition, a reviewing court may set aside the trial court’s finding of fact only upon determining that the trial court was manifestly erroneous or clearly wrong. The issue is whether the trial court’s conclusion was reasonable in light of the entire record.

Hillman v. Davis, 02-685, pp. 5-6 (La.App. 3 Cir. 12/11/02), 834 So.2d 594, 598

(citations omitted).

A party seeking to modify a custody decree which was a stipulated judgment

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. If the original custody decree is a considered decree, i.e., one for

which the trial court received evidence of parental fitness, the party seeking a

modification must prove that continuation of the present situation is “so deleterious

3 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.” Bergeron

v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

Because the Winzors’ custody decree is a consent judgment, Wade does not

have to meet the heavier burden of Bergeron. He must, however, prove both prongs

of the Evans standard, i.e., that a material change in circumstances has occurred since

the entry of the consent judgment and that his proposed modification is in the

children’s best interest.

Material Change in Circumstances

The trial court performed only a best-interest analysis under La.Civ.Code art.

134; it did not make a specific finding of a material change in circumstances.

Therefore, we must determine de novo whether a material change in circumstances

that triggers a best-interest analysis under Article 134 has occurred. When Wade and

Ramona separated, they lived in Monroe where Wade was working for the Union

Pacific Railroad. After the separation, in an effort to move closer to the children,

Wade arranged new work assignments and relocations with his employer. Eventually,

he achieved his goal and was assigned to the Lake Charles area. He currently lives

in DeQuincy, which is relatively close to Kinder, where the children live with

Ramona, and is much more involved in the children’s lives than he was previously.

He and Ramona have both remarried.

Wade has established that there has been a material change in circumstances

of the parties and the children and will now address his assignments of error

regarding the trial court’s consideration and analysis of the Article 134 factors.

4 Best Interest of the Children

In its analysis, the trial court considered Wade’s involvement and presence in

the children’s lives and his financial support of them; the stability of Ramona’s

presence in the lives of the children and their living arrangements; M.W.W.’s mental

limitations and educational needs; A.K.W.’s health problems; T.A.W.’s desire to live

with Wade; the desires of M.W.W. and A.K.W. for T.A.W. to continue living with

them; and the best interest of all three children. The trial court did not, however,

correlate each factor that it discussed with an Article 134 factor, but it is not required

to do so.

In Weaver v. Weaver, 01-1656, p. 5 (La.App. 3 Cir. 5/29/02), 824 So.2d 438,

442, this court observed that “[t]he factors under Article 134, are just that—a series

of guidelines the trial court may use in determining which parent can better provide

for the best interests of the child.” When determining the best interest of the children,

the trial court must weigh and balance factors favoring or opposing custody on the

basis of the evidence presented in each case. McKinley v. McKinley, 25,365

(La.App. 2 Cir. 1/19/94), 631 So.2d 45. The weight to be given each factor is left to

the discretion of the trial court. Jones v. Rodrigue, 00-899, 00-900 (La.App. 1 Cir.

11/3/00), 771 So.2d 275.

The trial court’s consideration of these factors were in favor of Ramona, except

on the issue of housing, which it determined was equal.

Assignment of Error Number 1

Wade’s first assignment of error is that the trial court failed to consider the

facts presented as they relate to factor (3) of Article 134 which provides:

The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

5 The trial court determined that Ramona has provided most of the support to the

children with Wade contributing only a small part of assistance to her. In its

discussion, the trial court referenced “occasional visits” by Wade from 1998 until

2000. Wade takes issue with this statement contending that he saw the children

monthly during that time and that Ramona’s relocation to Kinder from Monroe

contributed to his infrequent visits. Ramona testified that Wade did not see the

children very much during the last six months of 1997, that he saw them every three

or four months during 1998, every two to three months during 1999, every three

weeks or so in 2000, and that during 2000 he began seeing the children every other

weekend. Wade testified that he visited the children about once a month until 2000.

His current wife testified that he did not visit the children every other weekend until

2000. Wade’s testimony regarding how often he visited the children differs from

Ramona’s testimony, and the trial court apparently accepted her testimony over his,

which is its prerogative.

Wade’s argument insinuates that Ramona is partially to blame for his

infrequent visitation with the children in 1997, 1998, and 1999 because she moved

to Kinder. When Wade left the matrimonial domicile, Ramona had little or no choice

but to return to Kinder. She had no job and no family to help her with the three small

children, which included a three-year-old with developmental problems and a five-

month-old with a severe heart problem. Regarding the separation and her return to

Kinder, Ramona testified that on one occasion Wade left for work and did not return

for a week without letting her know of his whereabouts. On two other occasions, he

left for some time but then returned. Then, in June 1997, he told her that he was

leaving again. At that time, she told him that if he left, she would move back to

6 Kinder with the children. Under the circumstances, we do not find her actions

improper. Furthermore, we recognize that the distance between Monroe and Kinder

is not short; however, Wade’s parents live fairly close to Kinder, allowing him to pick

up the children and stay at his parents’ home for visitation, rather than make two

round-trips to exercise his visitation. Ramona is not to blame for Wade’s infrequent

visits with the children prior to 2000.

Wade also takes issue with the trial court’s discussion of his payment of child

support. There is no indication in the record of whether or not he paid support to

Ramona before their February 1999 stipulation, but it is clear that, based on

unconfirmed comments by the children, Wade made a unilateral reduction in his child

support payments from $1100.00 to $600.00 in early 2001 and that Ramona had to

file suit to have the payments reinstated. This $500.00 reduction in support for three

children is substantial, especially when it is for a three-month period. Although

Wade is repaying the $1500.00, it is only at the rate of $100.00 per month. Ramona

will not recoup the full amount withheld for fifteen months. This reduction reflects

negatively on Wade’s disposition to assist Ramona in providing for the children.

We find no error with the trial court’s conclusion that Wade has not provided

as much assistance to the children as Ramona has.

Assignment of Error Number 2

Wade’s next assignment is that the trial court failed to consider and apply the

fourth and ninth factors of Article 134. These factors provide respectively:

(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

7 Wade alleges that the trial court made factual errors concerning these factors

and did not consider that Ramona allowed T.A.W. to move in with him and that

T.A.W. remained with him until December 2002. His argument references the

following passage in the trial court’s reasons:

At the request of his fourteen-year-old daughter, Mr. Winzor allowed [T.A.W.] to move into his home in July 2002. Thereafter, Mr. Winzor presented change of custody papers to Ms. DeBarge. Ms. DeBarge refused to sign change of custody papers and demanded that [T.A.W.] return to live in her home in accordance with the Consent Judgment, signed February 8, 1999. In lieu thereof, Mr. Winzor enrolled [T.A.W.] in school in East Beauregard School and filed suit asking to be the domiciliary parent of all three children.

The first statement is correct but incomplete because it fails to recognize that

Ramona agreed that T.A.W. could move to Wade’s in July 2002. The last statement

is incorrect because it indicates that Wade acted alone when he enrolled T.A.W. in

school, when in fact, Ramona assisted him in gathering the documentation needed to

enroll T.A.W. in East Beauregard School, then changed her mind about T.A.W.’s

move to Wade’s. We note again, however, that Ramona testified and was

uncontradicted, that she told Wade and T.A.W. that the move was on a trial basis.

Wade also alleges that the trial court ignored T.A.W.’s preference to live with

him. This allegation is incorrect. The trial court acknowledged T.A.W.’s preference

to live with Wade. Just because the trial court ultimately determined that it was in the

best interest of the children for T.A.W. to live with Ramona does not mean that her

preference was ignored. A child’s preference to live with a parent is just one of many

factors and circumstances that a trial court must consider and weigh when

determining custody. Weaver, 824 So.2d 438. A trial court’s custody determination

requires consideration of a number of factors, and the court is free to disregard a

child’s preference to live with one parent. Id.

8 While the trial court did commit error with regard to the factual finding noted

above, we will consider the error in light of all of the evidence at the conclusion of

our discussion.

Assignment of Error Number 3

Wade argues, “The Trial Court clearly placed much weight on the supposition

that Ramona Winzor has stability and the help of extended family.” He counters the

trial court’s finding that Ramona has much support and assistance from her family

with the admission by Ramona’s mother that she has made disparaging comments

about him. Additionally, he asserts that Ramona’s mother tries to enlist Ramona’s

assistance in alienating the children’s affection for him. He cites factor (5) of Article

134, which provides:

The permanence, as a family unit, of the existing or proposed custodial home or homes.

Mrs. Marcantel, Ramona’s mother, admitted that she has made statements like

Wade is “dishonest and irresponsible” and “if it were not for your mother you would

not have shoes on your feet” to the children. These comments are in contravention

of our custody scheme and are distasteful, and we do not condone them. However,

we also observe that these comments do not rise to the level of the actions of the

parents, not grandparents, in Masters v. Masters, 35,477 (La.App. 2 Cir. 10/2/01),

795 So.2d 1271, and McIntosh v. McIntosh, 33,908 (La.App. 2 Cir. 8/31/00), 768

So.2d 219, which are cited by Wade in support of this assignment.

Mrs. Marcantel has witnessed first hand Ramona’s struggle to provide the best

that she can for the children under the circumstances. She has assisted Ramona and

contributed much to the stability of the lives of Ramona and the children, providing

her personal assistance and emotional support. While she may perceive Wade as

9 “irresponsible,” she should not make such statements to the children. There is no

evidence that Ramona makes such comments or that she condones those made by her

mother.

This negative aspect is unfortunate and should not continue, but does not

diminish the solidity of the home that Ramona has established for the children.

Assignment of Error Number 4

In his fourth assignment of error, Wade asserts that the facts do not weigh in

Ramona’s favor as they pertain to factor (10) of Article 134 which provides:

The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

He points to Ramona’s allowing T.A.W. to move in with him then changing her mind.

Ramona testified that before she agreed to the move, she told Wade that the move was

on a trial basis. He did not dispute her testimony. We also note that when Ramona

allowed T.A.W. to move, Wade agreed that T.A.W. would visit Ramona every other

weekend but did not enforce the visitation schedule after learning that Ramona

changed her mind. Thus, the actions of both parties reveal that they have got to work

on this aspect of their parenting of the children. This factor does not weigh in favor

of or against either party.

Assignment of Error Number 5

Factor (12) of Article 134 is the basis of Wade’s fifth assignment of error. It

reads:

The responsibility for the care and rearing of the child previously exercised by each party.

Wade argues that Ramona’s previous care and rearing of the children is not as solid

as it seems and itemizes four instances which he contends support this proposition.

10 The instances itemized do not detract from the fact that for five years Ramona had the

bulk of the responsibility for rearing the three children and did an excellent job under

less than desirable conditions.

Assignment of Error Number 6

Wade’s last objection is to the trial court’s conclusion that it is in the best

interest of the children for them to remain together with Ramona. The current status

of the law is that siblings being together outweighs the desire of one sibling to live

with the other parent. Howze v. Howze, 99-852 (La. 5/26/99), 735 So.2d 619. While

it is sometimes necessary to separate the children of a family, courts should avoid

doing so. Id. “Normally, the welfare of children is best served by leaving them

together, so they can have the full benefit of companionship and affection. When

feasible, a court should shape its orders to maintain family solidarity.” Shaffer v.

Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 358.

We find this especially true in this situation where M.W.W. and A.K.W. have

special needs and where T.A.W., because of her age, may be relied on by M.W.W and

A.K.W. more than in a situation where the siblings are closer in age.

Conclusion

We have considered all of the facts herein in light of the trial court’s

conclusions and Wade’s arguments. Our review reveals that, while the trial court did

err with regard to one finding of fact, it did not abuse its discretion nor was it

manifestly erroneous in its ultimate conclusion that Ramona should continue as the

domiciliary parent of T.A.W., M.W.W. and A.K.W. The judgment of the trial court

is affirmed. All costs are assessed to Wade Winzor.