Theriot v. Theriot

177 So. 3d 759, 15 La.App. 5 Cir. 311, 2015 La. App. LEXIS 2026, 2015 WL 6081013
CourtLouisiana Court of Appeal
DecidedOctober 14, 2015
DocketNo. 15-CA-311
StatusPublished
Cited by6 cases

This text of 177 So. 3d 759 (Theriot v. Theriot) 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
Theriot v. Theriot, 177 So. 3d 759, 15 La.App. 5 Cir. 311, 2015 La. App. LEXIS 2026, 2015 WL 6081013 (La. Ct. App. 2015).

Opinion

HANS J. LILJEBERG, Judge.

| {.Plaintiff appeals the trial court’s December 19, 2014 judgment, which modified the parties’ custody arrangement and awarded shared joint custody of the minor child to the parties, with the mother being designated as the domiciliary parent. For the following.reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The parties, Andra Theriot Owens and Patrick Theriot, are the parents of SYT, who was born in July of 2002. The parties were married on November 17, 2000, and they separated in October of 2007. A judgment of divorce was rendered on February 10, 2010.1

On July 20, 2009, the parties entered into a consent judgment, providing for joint custody of SYT, with Andra being designated as the domiciliary parent. Patrick was awarded physical custody of SYT every other weekend from Friday evening until Sunday evening, every Wednesday after school until Thursday morning, and two non-consecutive full weeks each summer. The judgment also set forth an alternating holiday schedule.

| {¡On December 21, 2011, the parties entered into a second consent judgment, modifying the physical custody schedule. Pursuant to this judgment, Patrick was granted physical custody of SYT during the school year from 7:00 p.m. every Wednesday night until school on Thursday morning, every Friday after school until 3:00 p.m. on Saturday, and every Sunday from 7:00 p.m. until school on Monday morning.

On March 11, 2014, Andra filed a motion in the trial court requesting modification of the physical custody schedule, as well as other relief. In this motion, Andra asserted that there had been a change in circumstances to such a degree as to warrant modification of the December 21, 2011 consent judgment. She stated that the 2011 consent judgment was entered into when SYT was nine years old, and that she had matured since that time and needed a less [761]*761disruptive weekend schedule in order to participate in extra-curricular and social activities. In order to eliminate the custody exchanges during each weekend, Andra requested that Patrick be awarded physical custody of SYT every other Friday from after school until school on Monday morning, and every Wednesday from 7:00 p.m. until school on Thursday morning.

On July 1, 2014, Patrick filed his own motion seeking modification of the physical custody schedule, as well as other relief. In his motion, Patrick indicated that he agreed with Andra that a material change in circumstances had occurred since the parties entered into the consent judgment oh December 21, 2011, thereby warranting modification of the custody schedule. He further agreed with Andra’s assertion that SYT is now older and wants to participate in extra-curricular and social activities, which is difficult under the custody schedule in the 2011 consent judgment. Patrick requested that the parties be awarded joint and shared custody of SYT.

|40n July 18, 2014, the parties appeared before the domestic hearing officer, and he recommended that there be no modification of the custody or visitation schedules. He found that there had been no material change in circumstances to warrant modification of custody, and that the beneficiary of the “visitation,” Patrick, did not want a change in the visitation schedule. The hearing officer’s recommendations were made an interim judgment of the court. Both Andra and Patrick filed timely objections to the hearing officer’s recommendations and the interim order.

On November 10, 2014, this matter came before the trial judge for hearing. At the hearing, Andra, Patrick, and Patrick’s fian-cé, Wendy Barrilleaux, testified. At the conclusion of the hearing, the trial judge indicated that he would take the matter under advisement for two weeks and that he hoped that the parties would try during that time to find and agree to a resolution that would be the best for SYT.

The parties failed to reach an agreement during the time allowed by the trial judge. Accordingly, on December 19, 2014, the trial judge rendered a judgment, modifying the physical custody schedule and granting Patrick’s request for joint and shared custody, with Andra to remain as the domiciliary parent. The judgment provides for the following physical custody schedule:

For the first week, Pat shall have custody of [SYT] starting on Friday after school until Sunday at 7:00 P.M.; Andra Shall have custody of [SYT] from 7:00 P.M. Sunday until Wednesday after school, at which time Pat will have custody of [SYT] until Friday after school, at which time Andra will have custody until Sunday at 7:00 P.M. Pat will then have custody of [SYT] from 7:00 P.M. Sunday until Wednesday after school, at which time Andra will have custody until Friday after school. The schedule will then repeat itself starting with Pat having custody on Friday after school. This schedule shall remain in place during the summer time. Additionally, during the summer time, each parent shall be | ^entitled to two non-consecutive full weeks of custody of [SYT]. The holiday schedule set forth in the July 20, 2009, consent judgment shall remain in place.

Andra filed a Motion for New Trial, which was heard by the trial court on February 5, 2015, and denied. Andra now appeals.

LAW AND DISCUSSION

On appeal, Andra seeks reversal of the trial court’s judgment providing for joint and shared custody of SYT, and modifying SYT’s weekly physical custody schedule.

[762]*762Where a prior custody decree is a stipulated judgment, the party seeking to modify the existing custody arrangement must prove: 1) there has been a material change in circumstances affecting the welfare of the child 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 (La.2/6/98), 708 So.2d 731, 738; Shaffer v. Shaffer, 00-1251 (La.App. 1 Cir. 9/13/00), 808 So.2d 354, 357, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151. In the present case, the prior custody decree was a stipulated judgment, wherein the parties consented to the custodial arrangement. Thus, in order to modify custody to a joint and shared custody arrangement, Patrick was required to show a material change in circumstances affecting SYT’s welfare since the' 2011 consent judgment, and that modification of the custody arrangement was in SYT’s best interest.

In her first assignment of error, Andra argues that the trial court abused its discretion by finding that a change of circumstances materially affecting SYT’s welfare, and sufficient to warrant modification of SYT’s weekly schedule, had occurred since the rendition of the 2011 consent judgment. Specifically, she asserts that the trial court abused its discretion in finding that Patrick’s engagement and co-habitation with Wendy constitute a material change in circumstances | (¡affecting SYT’s welfare. In support of her position, Andra cites Ketchum v. Ketchum, 39,082 (La.App. 2 Cir. 9/1/04), 882 So.2d 631, in which the Second Circuit found that a father’s remarriage alone did not constitute a change in circumstances materially affecting the minor child’s welfare so as to warrant the change of custody ordered in that case.

First, we note that the trial judge did not consider Patrick and Wendy’s engagement and co-habitation as the only factor in determining whether or not there was a material change in circumstances affecting SYT’s welfare.

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Cite This Page — Counsel Stack

Bluebook (online)
177 So. 3d 759, 15 La.App. 5 Cir. 311, 2015 La. App. LEXIS 2026, 2015 WL 6081013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theriot-v-theriot-lactapp-2015.