Roberie v. Roberie

749 So. 2d 849, 1999 WL 1140655
CourtLouisiana Court of Appeal
DecidedDecember 8, 1999
Docket33,168-CA
StatusPublished
Cited by15 cases

This text of 749 So. 2d 849 (Roberie v. Roberie) 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
Roberie v. Roberie, 749 So. 2d 849, 1999 WL 1140655 (La. Ct. App. 1999).

Opinion

749 So.2d 849 (1999)

Ricky Lynn ROBERIE, Plaintiff-Appellant,
v.
Lou Anna ROBERIE, Defendant-Appellee.

No. 33,168-CA.

Court of Appeal of Louisiana, Second Circuit.

December 8, 1999.

*850 Bobby L. Culpepper & Associates by Bobby L. Culpepper, Jonesboro, Counsel for Appellant.

Kitchens, Benton, Kitchens & Warren by Rick Warren, Minden, Counsel for Appellee.

*851 Before BROWN, PEATROSS & DREW, JJ.

PEATROSS, J.

This appeal arises from the trial court's awarding custody of Joshua Lynn Roberie, age 17, to his father, Ricky Lynn Roberie ("Mr. Roberie"), and awarding custody of Gabriel Pierce Roberie, age 15, to his mother, Lou Anna Roberie (now Graham) ("Ms. Roberie-Graham"). Mr. Roberie appeals. For the reasons stated herein, the judgment of the trial court awarding custody of Gabriel to Ms. Roberie-Graham is reversed; Mr. Roberie shall be the primary domiciliary parent of both Joshua and Gabriel. Accordingly, the matter is remanded to the trial court for specification of a workable visitation schedule for the children and their mother and a determination of child support.

FACTS

This case has a history of custody agreements and disagreements between the parents over these two, now teen-aged, boys. The parties were divorced in 1985, at which time a considered decree was entered setting forth a joint custody plan which gave Ms. Roberie-Graham custody of the boys from January through June of each year and gave Mr. Roberie custody of the boys from July through December of each year. At the time of the divorce, Joshua was four years old and Gabriel was two years old. The custody arrangement became unworkable in 1987, however, when Joshua was old enough to enter public school. At that time, Joshua would have been approximately six years old and Gabriel four years old. In August 1987, therefore, the trial court entered a second considered decree designating Ms. Roberie-Graham as the primary custodial parent with Mr. Roberie having custody during the summer months and one weekend per month. The holidays were divided.

In June of 1997, the parties entered into a "temporary custody agreement" whereby Joshua would reside with Mr. Roberie and Gabriel would reside with Ms. Roberie-Graham. At that time, Joshua was approximately 16 years old and Gabriel was 14 years old. Both children lived with Mr. Roberie during the summer of 1998 and Mr. Roberie stated that he believed they would continue to reside with him during the 1998-1999 school year as well. A dispute, therefore, arose concerning where the boys would live during the school year which prompted Mr. Roberie to file a petition for modification of custody on August 11, 1998, wherein he sought to be designated the primary domiciliary parent of both boys and to be awarded child support.

The rule was heard on September 14, 1998, at which time it was agreed that the children would stay with Mr. Roberie pending evaluations and recommendations to be conducted by the staff of the Methodist Children's Home. The evaluations were conducted and the Methodist Children's Home recommended that custody of the boys be given to the maternal grandparents, if possible; however, if that option was not available, the recommendation was for Joshua to remain with his father and for Gabriel to reside with his mother. After a hearing on the matter, the trial court accepted and followed the alternative recommendation of the Methodist Children's Home evaluators and, on July 23, 1999, entered judgment separating the boys. At that point, the boys had been living with Mr. Roberie for a full year. Mr. Roberie applied for a stay, which was denied, and, thereafter, applied for emergency supervisory writs and stay orders from this court, which were also denied. This appeal followed.

DISCUSSION

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). On appellate review, the trial court's determination of custody issues is afforded great weight, *852 and its discretion will not be disturbed on review in the absence of a clear showing of abuse. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972).

Mr. Roberie argues that it is in the best interest of the boys that they be kept together in one household. Since, over the past year, the boys have demonstrated stability and improvement while in his custody and since the boys express the desire to continue living with him, Mr. Roberie urges that the judgment of the trial court separating Joshua and Gabriel is erroneous and should be reversed as to Gabriel, thereby granting him primary domiciliary status of both boys. We agree. On the record before us, we believe that the trial court's finding that it was in the best interest of Gabriel to separate him from his older brother, Joshua, was an abuse of discretion.

The best interest of the child is the sole criterion to be met in awarding or modifying custody under La. C.C. art. 131. See also Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). When a trial court has made a considered decree of permanent custody, the party seeking to modify the decree 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, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986); Wilson v. Wilson, 30,445 (La. App.2d Cir.4/9/98), 714 So.2d 35.

A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App.2/6/95), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96), 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La.App.2d Cir.5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.

The interests served by such a demanding standard in attempted custody changes are numerous. Specifically, the supreme court noted in Bergeron the importance of there being an "end to the litigation" and that it is "undesirable to change the child's established mode of living except for imperative reasons." Additionally, this court has recognized that the purpose of the heavy burden is to avoid extensive and repetitive litigation that could be harmful to the child and to avoid unnecessary changes in the child's life. Wilson, supra; Acklin v. Acklin, 29,193 (La.App.2d Cir.2/26/97), 690 So.2d 869. Furthermore, in fashioning the standard, the supreme court recognized that, in some cases, changes in custody may be warranted absent "deleterious" circumstances in the present custody arrangement:

In some instances the benefits to the child from a modification of custody may be so great that they clearly and substantially outweigh any harm that will be likely to result from the change even though the present custody is not deleterious to the child.... [W]e are convinced that in a narrow class of cases a modification of custody may be in the child's best interest even though the moving party is unable to show that the present custody is deleterious to the child.

Bergeron, supra.

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Bluebook (online)
749 So. 2d 849, 1999 WL 1140655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roberie-v-roberie-lactapp-1999.