Simmons v. Simmons

554 So. 2d 238, 1989 WL 151407
CourtLouisiana Court of Appeal
DecidedDecember 13, 1989
Docket88-889
StatusPublished
Cited by11 cases

This text of 554 So. 2d 238 (Simmons v. Simmons) 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
Simmons v. Simmons, 554 So. 2d 238, 1989 WL 151407 (La. Ct. App. 1989).

Opinion

554 So.2d 238 (1989)

Martha Autrey SIMMONS, Plaintiff-Appellant,
v.
Reuben J. SIMMONS, Defendant-Appellee.

No. 88-889.

Court of Appeal of Louisiana, Third Circuit.

December 13, 1989.

*239 Thomas G. Wilson, Colfax, for plaintiff-appellant.

Gregory N. Wampler, Colfax, for defendant-appellee.

Before GUIDRY and KNOLL, JJ., and ROBERTS[*], J. Pro Tem.

KNOLL, Judge.

Martha A. Simmons, the mother, appeals the modification of a joint custody decree awarding Reuben J. Simmons, the father, the sole custody of their son, Randy, who is nine years of age.

Martha and Reuben were married in 1965 and physically separated on or about May 10, 1986. Though the record is not exactly clear, it seems that the two minor children, Kathryn, 16 years of age, and Randy, lived with Martha during the time that the parents were physically separated, but sometime during that time Kathryn lived with Reuben.

The record also shows that Martha initiated the divorce action on July 24, 1987, alleging that she and Reuben had lived separate and apart without reconciliation for over a year, and that it was in the best interest of the minor children to continue the joint custody plan[1] wherein she is the domiciliary parent of the children, subject to Reuben's right to visitation. Although *240 Reuben initially filed an answer to the divorce action, admitting this allegation, at the divorce hearing, Martha agreed to retain only the custody of Randy and let Kathryn, now 17 years of age, live with Reuben; there was no contested hearing on the issue of the fitness of Martha and Reuben to continue the custody of the children respectively living with them. Accordingly, the judgment of divorce dated November 23, 1987, named Reuben as the domiciliary parent of Kathryn and Martha as the domiciliary parent of Randy.

On December 10, 1987, a little over two weeks after the divorce, Reuben filed a rule nisi, seeking the sole custody of Randy on the general allegation that there had been a change of circumstances since the judgment of divorce. At the hearing, the trial court permitted an enlargement of the pleadings, without objection, to encompass testimony of Martha's moral unfitness.

In written reasons, the trial court ruled that it was in Randy's best interest to live with his father because Martha had a live-in boyfriend, and Reuben could better meet the child's needs.

Shortly after the trial court's ruling, Martha married her paramour and filed a motion for a new trial, contending that the trial court misconstrued the evidence at the original hearing and, even assuming the truthfulness of those facts for the purpose of argument, the trial court should favorably consider her remarriage in determining what was in Randy's best interest.

The trial court held a hearing on Martha's motion for new trial. At that time the trial court interviewed Randy in chambers without the attorneys present, and again in open court with only the attorneys present. On both occasions Randy expressed a desire to live with his father. The trial court ruled that, taking into consideration Randy's desire to live with his father and the evidence of both hearings, the best interest of the minor child would be served by awarding custody to the father.

On appeal, Martha contends that the trial court erred: (1) because Reuben, the moving party on this rule to change custody, failed to prove that Martha was morally unfit to continue as the domiciliary parent of their minor son; (2) even assuming that the father proved she was morally unfit, he failed to establish that the immorality had a deleterious effect on their son since she was now married; and, (3) in considering the minor child's preference. For the following reasons, we reverse.

CHANGE OF CUSTODY

Martha, citing Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), contends that the trial court erroneously found that Reuben carried his burden of proving that her conduct justified a change of circumstances sufficient to remove custody of Randy. She further argues that the trial court erred when it faulted her for failing to testify at the original hearing and introducing no evidence to rebut Reuben's contentions.

Initially, we find that the heavy burden of proof enunciated in Bergeron is inapplicable to the case sub judice. An uncontested decree in which no evidence is presented as to the fitness of the parents is not a "considered decree". Bridgers v. Bridgers, 509 So.2d 793 (La.App. 1st Cir. 1987). In the present case, the original custody decree at the time of divorce was a stipulated judgment and not a considered decree. Accordingly, the test applicable in this change of custody action is found in LSA-C.C. Arts. 146 and 157, and consists of what is in the best interest of the child. Dungan v. Dungan, 499 So.2d 149 (La. App.2nd Cir.1986); cf. also Miller v. St. Clergy, 535 So.2d 563 (La.App. 3rd Cir. 1988).

In Owen v. Gallien, 477 So.2d 1240 (La. App. 3rd Cir.1985), we stated at page 1244:

"The best interest of the children is the sole criterion in a change of custody case. In determining what is in the best interest of the children, courts must examine all relevant facts. These include, but are not limited to, stability of environment, the standard of living each parent can provide, and the prior history of the children's custody. Further, it is settled *241 that the father and the mother stand on equal footing at the outset of child custody proceedings and the role of the court is to determine the best interest of the children based on the relative fitness and ability of the competing parents in all respects to care for the children. Finally, under our law, joint custody is presumed to be the preferred custodial arrangement.
In light of the above, the children are the real parties at interest in a custody proceeding and the sole issue to be decided is what custodial arrangement will serve their best interest. A determination of this issue can and should not be made until all evidence has been adduced which bears upon the relative fitness and ability of competing parents in all respects to care for the children. Thus, it can be concluded that, because of the unique nature of such proceedings, irrespective of whether an initial award of custody is involved or a change of custody is sought, the competing parties share equally the burden of establishing by a preponderance of the evidence the custodial arrangement which will best serve the interest of the children." (Citations omitted.)

In Turner v. Turner, 455 So.2d 1374 (La.1984), the Supreme Court at page 1379 stated:

"... [LSA-C.C. Art. 146(C)] clearly provides that there is only a presumption in favor of joint custody, and that it may be rebutted upon a proper showing that a different arrangement is in the child's best interest. Such a showing now must include a consideration of eleven specific, enumerated factors, plus any `other factor' which the trial court deems to be relevant. Article 146 provides further that `the burden of proof that joint custody would not be in the child's best interest shall be on the parent requesting sole custody.' This provision does not create any extraordinary burden on the party requesting sole custody.
As in any matter in which there is a rebuttable presumption, the burden rests with the party challenging the presumption to convince the fact-finder that his proposed conclusion is more correct than the presumed one.

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Cite This Page — Counsel Stack

Bluebook (online)
554 So. 2d 238, 1989 WL 151407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-simmons-lactapp-1989.