Steele v. Ashworth

151 So. 3d 177, 14 La.App. 3 Cir. 527, 2014 La. App. LEXIS 2721, 2014 WL 5836061
CourtLouisiana Court of Appeal
DecidedNovember 12, 2014
DocketNo. 14-527
StatusPublished

This text of 151 So. 3d 177 (Steele v. Ashworth) 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
Steele v. Ashworth, 151 So. 3d 177, 14 La.App. 3 Cir. 527, 2014 La. App. LEXIS 2721, 2014 WL 5836061 (La. Ct. App. 2014).

Opinion

SAUNDERS, Judge.

11 This is an appeal from a custody determination and judgment rendered by the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Quinton J. Steele (hereafter “Appellant”) and Jasmine S. Ashworth (hereafter “Appellee”) are the parents of a minor child, Conner Steele. On September 16, 2008, Appellant filed a Petition to Establish Paternity and Custody. On March 16, 2009, the trial court issued an oral ruling, recognizing Appellant as the biological father of the minor child. At the same time, an Interim Order was issued, awarding “joint care, custody, and control” of the minor child to the parties. On April 13, 2009, a hearing was held on Appellant’s Rule to Set Permanent Custody. The testimony of Appellant, Appellee, and Laura Landry, Appellant’s wife, was heard. An oral ruling with reasons was issued, granting joint custody to the parties, with Ap-pellee being designated domiciliary parent with Appellant having visitation according to the court’s Standard Custody Implementation Plan. Judgment was signed on September 24, 2013, awarding “permanent joint care, custody, and control of the minor child.” Appellee was designated as the domiciliary parent. An Implementation Plan was issued.

On September 23, 2013, Appellee, pro se, filed a Rule for Contempt, alleging that Appellant took the minor child without her permission. On September 24, 2013, the trial court ordered the minor child be returned to Appellee and set the matter for review. Appellant filed a response to the rule, alleging the minor child had been in [180]*180his care, with Appellee’s permission, since the summer of 2012. He further alleged that he and Appellee had agreed the child would remain in his custody, with Appellee exercising visitation in her home. On October 11, 2018, Appellant filed a Petition for Change of Custody and Stay of Return Order, |?again alleging that, with Appel-lee’s permission, he had physical custody of the child since the summer of 2012. He requested sole custody with visitation being granted to Appellee and a stay of the order to return the child until a hearing could be had on the request to change custody. The request for stay was denied, and the matter was set for hearing.

Hearing was held on December 19, 2013, at which the trial court heard the testimony of the parties. The matter was taken under advisement, and judgment was rendered on January 2, 2014, in which the trial court denied the Petition for Change of Custody, finding that Appellant failed to meet the burden of proof for a change of custody following the rendition of a considered decree. It is from this judgment that this appeal.arises.

DISCUSSION

In his appeal, Appellant first asserts the trial court erred in not considering a letter written to the court by the minor child. Appellant also asserts the trial court erred in finding that the standard announced in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), applied to Appellant’s request to change custody.

Assignment of Error Number One:

Appellant asserts that the trial court did not properly consider a letter written by the minor child, in which the child complained he was “hit” by Appellee. In support of his argument, he contends, “If the court properly considered the letter then the court could have concluded that it would be deleterious to leave the child with the mother appellee.”

There is nothing to indicate the trial court did not consider the letter. To the contrary, it appears the trial court did, in fact, consider the content of the letter and made the decision to report the allegation that Appellee “hit” the child to the Office |sof Community Services, the agency charged with investigating complaints of child abuse. When the letter was introduced, the trial court explained:

THE COURT:
In the Court’s opinion at this time. It does not reach that level. I can — because I saw this letter; I don’t know what effect the letter has. I don’t know the situation, and I’m not going to talk to an eight-year-old child — I can ask OCS to investigate the situation and talk to an eight-year-old child. But teachers are mandatory reporters. In other words, if they believe the child was hurt, and the child told them, they would report it, and the investigation would immediately occur. I’m a mandatory reporter. Mr. Pichon’s a mandatory reporter. So, I will tell them, and they’ll investigate the situation, and they’ll probably continue to do that.

In the absence of any details, the trial court “could have concluded” that the child may have been abused and that it would be harmful to the child to maintain custody in Appellee. However, without any context, the trial court was also entitled to conclude that there may, in fact, have been no actual abuse. Where there are two permissible views of the evidence, there cannot be manifest error. LeBlanc v. Calcasieu Parish Sch. Bd., 02-728 (La.App. 3 Cir. 12/30/02), 834 So.2d 1258 (citing Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161; Stobart v. State through Dep’t of Transp. & Dev., [181]*181617 So.2d 880 (La.1993)). Accordingly, we find this assignment is without merit.

Assignment of Error Number Two:

In his second assignment of error, Appellant asserts the trial court erred in finding that the heightened burden of proof announced in Bergeron applied to his request to change custody because a change of custody had already occurred when the child began to reside with him. He asserts that, if it should have been applied, it was to the change of physical custody from Appellant back to Appellee.

_JjThe burden of proof required to modify an order of custody depends on whether the trial court previously rendered a considered decree. Martin v. Martin, 11-1496 (La.App. 3 Cir. 5/16/12), 89 So.3d 526. To modify a considered decree, the party seeking modification “must first show that a change of circumstances materially affecting the welfare of the child has occurred since the prior custody order.” Barlow v. Barlow, 14-361 (La.App. 3 Cir. 10/1/14), 149 So.3d 856, 860, 2014 WL 4851870 (citing Bergeron v. Bergeron, 492 So.2d 1193 (La.1986)). Then, the party seeking modification must show:

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. 2 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. [2d Cir.] 2/6/95 [12/6/95]), 665 So.2d 648, writ denied, 96-0387 (La.5/§/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. 2 Cir. 5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.

Martin, 89 So.3d at 528 (quoting Schuchmann v. Schuchmann, 00-094, p. 3 (La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616) (quoting Roberie v. Roberie, 33,168, p. 3 (LaApp. 2 Cir.

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Bluebook (online)
151 So. 3d 177, 14 La.App. 3 Cir. 527, 2014 La. App. LEXIS 2721, 2014 WL 5836061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steele-v-ashworth-lactapp-2014.