Tommie Mack Granger v. Stephanie W. Granger

• Court: Louisiana Court of Appeal
• Decided: November 10, 2009
• Docket: CA-0009-0272
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-272

TOMMIE MACK GRANGER

VERSUS

STEPHANIE W. GRANGER

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 198,383 HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Shannon J. Gremillion, Judges.

AFFIRMED IN PART. REVERSED IN PART AND REMANDED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

Richard E. Lee 810 Main Street Pineville, LA 71360 (318) 448-1391 COUNSEL FOR PLAINTIFF/APPELLEE: Tommie Mack Granger

Henry H. Lemoine, Jr. Lemoine & Wampler 607 Main Street Pineville, LA 71360 (318) 473-4220 COUNSEL FOR DEFENDANT/APPELLANT: Stephanie W. Granger AMY, Judge.

The parties were awarded joint custody of their minor child by a considered

decree. The mother was named as the domiciliary parent. Thereafter, the father

requested a change in the physical custody schedule as, he contended, the physical

custody schedule was unworkable. The trial court found in favor of the father,

modifying a portion of the physical custody schedule. The mother appeals. For the

following reason, we affirm.

Factual and Procedural Background

The parties, Dr. Tommie Granger and Dr. Stephanie Barnes, were awarded

joint custody of their minor daughter, Savannah, by an August 2000 considered

decree. The decree named Dr. Barnes as the domiciliary parent. At that time, Dr.

Barnes resided in Little Rock, Arkansas with Savannah, while Dr. Granger resided

in Alexandria, Louisiana.

The plan implementing the joint custody provided that Dr. Granger would have

physical custody of the minor child every other weekend from Wednesday to Sunday.

It prohibited Dr. Granger from removing Savannah from Little Rock until after school

on Fridays. During the summer, Dr. Granger had physical custody from the

beginning of the summer school break until ten days before the start of school. Dr.

Barnes had physical custody every other weekend from Wednesday to Sunday.

By 2002, Dr. Granger began seeking a modification of the considered decree

and a reduction in child support. By that time, Dr. Barnes and Savannah had

relocated to Shreveport, Louisiana. After a number of continuances and after

attempts at mediation, a hearing on the modification of the physical custody decree

was eventually held in December 2008 and, thereafter, the trial court rendered a new

decree. The decree maintained the parties’ joint custody status and, again, designated Dr. Barnes as the domiciliary parent. However, it shortened Dr. Granger’s period of

physical custody during the school year to Friday after school until Sunday at 6:00

p.m. It lengthened Dr. Granger’s periods of summer physical custody from the end

of the school term until five days prior to the beginning of the fall semester. As for

the summer, Dr. Barnes was given physical custody every other weekend from 5:00

p.m. on Friday until Sunday at 6:00 p.m.

The trial court also reduced Dr. Granger’s child support obligation by fifty

percent during the summer when he was exercising physical custody.

Dr. Barnes appeals, assigning the following as error:

1. The trial court erred in modifying the visitation schedule of the minor child.

2. The trial court erred in failing to address visitation during the beginning and end of the summer time.

3. The trial court erred in setting the time for transfer of custody at 6:00 p.m.

4. The trial court erred in reducing the child support obligation.

Discussion

Modification

Dr. Barnes first questions the trial court’s modification of the existing physical

custody arrangement. It is important to note that, throughout this proceeding, the

parties have referred to the matter submitted to the court as a request for change in

visitation. In fact, in her brief to this court, Dr. Barnes states that, since Dr. Granger

“is attempting to modify visitation alone, the applicable standard is the best interest

of the child.”

Yet, the parties shared joint custody in this case and, therefore, visitation is not

at issue. See La.Civ.Code art. 136, which provides for visitation only in the event a

2 parent does not have custody or joint custody.1 Instead, Dr. Granger sought a

modification of the schedule of joint physical custody instituted pursuant to La.R.S.

9:335.2 Therefore, this case must be considered as a modification of custody. See

Jackson v. Harris, 05-604 (La.App. 3 Cir. 12/30/05), 918 So.2d 1163; Cedotal v.

Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433; DeSoto v. DeSoto, 04-

1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175; Francois v. Leon, 02-460 (La.App. 3

Cir. 11/27/02), 834 So.2d 1109; Lee v. Lee, 34,025 (La.App. 2 Cir. 8/25/00), 766

So.2d 723, writ denied, 00-2680 (La. 11/13/00), 774 So.2d 150 (citing Davenport v.

Manning, 95-2349 (La.App. 4 Cir. 6/5/96), 675 So.2d 1230).

The best interest of the child is the paramount consideration in a custody

matter. See La.Civ.Code art. 131.3 However, because Dr. Granger sought a

modification of a considered decree, he was required to satisfy the further

jurisprudential standard of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Bergeron requires the party seeking a change in custody to prove that the

1 Louisiana Civil Code Article 136 provides:

A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. 2 Louisiana Revised Statutes 9:335 provides:

A. (1) In a proceeding in which joint custody is decree, the court shall render a joint custody implementation order except for good cause shown.

(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.

(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

(3) The implementation order shall allocate the legal authority and responsibility of the parents. 3 Article 131 provides that: “In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.”

3 continuation of the present custody is so deleterious 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. Id. See also La.Civ.Code art. 131,

comment (d).4 A trial court’s determination in child custody matters is entitled to

great weight, and will not be disturbed on review in the absence of a clear showing

of abuse of discretion. AEB v. JBE, 99-2668 (La. 11/30/99), 752 So.2d 756.

As the trial court did not render written or verbal reasons for its ruling, it is

unclear what standard it applied in its determination to modify the physical custody

schedule. However, our review of the record indicates that the trial court’s ruling is

not an abuse of its discretion as the evidence supports a modification of the original,

considered decree under the Bergeron standard. In particular, the record contains

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.

The Bergeron requirements must be considered in light of the circumstances

of this case and the minimal changes requested by Dr. Granger. First, it is clear that

certain aspects of the original custody decree were no longer working for the parties

and that, although they had been living under the original decree, they were only

4 With regard to Article 131, comment (d) indicates that:

This Article should be followed in actions to change custody as well as in those to initially set it. An additional, jurisprudential requirement is imposed in actions to change custody decisions rendered in considered decrees, however. In such actions the proponent of change must show that a change of circumstances has occurred such that “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or . . . 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 1183, 1200 (La.1986). Accord: Smith v. Smith, 559 So.2d 48 (La.App. 4th Cir. 1990). This burden of proof is imposed by the jurisprudence as a means of implementing the best interest standard in light of the special considerations present in change of custody cases.

4 doing so with a great deal of stress and a certain degree of flexibility. That flexibility,

or perceived lack thereof at certain times, caused friction between the parties.

Further, the parties were aware of the need to reach a mutually agreeable schedule as

they previously appeared in court and worked in mediation. However, they had been

unable to do so. The trial court recognized this, stating that “nothing has worked, and

that’s why we’re here today.” Finally, the modifications of the original decree

requested by Dr. Granger, and imposed by the trial court, were limited in the scheme

of the entire custody arrangement, i.e., the father was granted lengthier periods of

physical custody in the summer, but was granted fewer days of custody during the

school year. Although the trial court rendered a new order, the remaining custody

terms were essentially unchanged.

In light of the geographical distance between the parties at the time of the

original custody decree, the original decree gave Dr. Granger physical custody on the

weekends from Wednesday through Sunday. Presently, however, since Savannah is

now a teenager attending school in Shreveport, and Dr. Granger lives in Alexandria,

Dr. Granger explained that he does not currently exercise the weekday portion of this

period of custody during the school year. Instead, he only has Savannah on the

weekends during that time. Accordingly, the trial court eliminated the Wednesday

and Thursday portion of physical custody during the school year and provided a

greater period during the summer. While Dr. Barnes does not complain about that

portion of the trial court’s order which now provides her with greater custody during

the school year, these two components of the new physical custody schedule cannot

be viewed in isolation.

5 The trial court’s remarks during the hearing indicate that it considered the

change in order to provide Dr. Granger with a better opportunity to exercise physical

custody and, hopefully, better his relationship with Savannah. Much of Dr. Barnes’s

argument focuses on her assertion that the original custody arrangement offers greater

flexibility for the parties. In fact, Savannah testified about her desire for greater

flexibility in her summer schedule so that she could participate in activities as desired.

However, there is no abuse of discretion in determining that Savannah’s preference

of moving between parents depending on her activities schedule, and notwithstanding

the court’s custody decree, was secondary to the obligation to provide the parents

with a reasonable opportunity in which they could supervise and direct the child as

they saw fit. Furthermore, Savannah testified that she wanted a better relationship

with her father. In fact, the trial court previously ordered that both Savannah and Dr.

Granger undergo counseling to deal their relationship issues. It was not an abuse of

discretion for the trial court to conclude that the modified plan would permit Dr.

Granger to better exercise his periods of physical custody and improve his ability to

parent Savannah. Accordingly, the record contains clear and convincing evidence

that any harm from the modified schedule is substantially outweighed by its

advantages.

This assignment lacks merit.

Schedule

Neither do we find merit in Dr. Barnes’s assertion that the trial court abused

its discretion in setting the time for the transfer of custody at 6:00 p.m. instead of her

preferred time of 4:00 p.m. Although she contends that this time period causes

difficulty, there is no evidence indicating that this transfer time is so inconvenient to

6 either party that it was an abuse of discretion. Finally, Dr. Barnes’s request that the

trial court alter certain aspects of the summer schedule in the original custody decree

is rendered moot by the above affirmation of the modified custody schedule.

Child Support

We do, however, find merit in Dr. Barnes’s contention that the trial court

erroneously reduced Dr. Granger’s child support by fifty percent during the summer

months when he has physical custody. Review of the record indicates that this matter

was not before the court on the date of the hearing. Rather, Dr. Granger’s attorney

and the trial court each clarified at the hearing that child support was not at issue on

that date. Neither was evidence taken nor argument heard on the support issue on the

date of the hearing. Accordingly, we reverse that portion of the trial court’s judgment

addressing child support and remand for further proceedings on this issue.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed insofar as

it establishes the shared physical custody schedule between the parties. The judgment

is reversed, however, insofar as it reduced the child support owed by Tommie Mack

Granger during the summer period when he had physical custody of the minor child.

Costs of this proceeding are assessed equally between the appellant, Stephanie W.

Granger Barnes, and the appellee, Tommie Mack Granger. This matter is remanded

for further proceedings.

7 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

THIBODEAUX, Chief Judge, dissenting in part.

I agree with the majority’s reversal of the judgment addressing child

support. I disagree with the remainder of the majority’s opinion.

The majority’s analytical approach is flawed. Treating this case as one

involving custody and not visitation is incorrect. Visitation is the issue, not custody.

All parties agree to this. Parental fitness to which Bergeron v. Bergeron, 492 So.2d

1193 (La.1986), applies is not an issue between Dr. Barnes and Dr. Granger, and

neither is attempting to modify the previous joint custody implementation order with

respect to physical custody.

It is correct that La.Civ.Code art. 136 refers to visitation where a parent

does not have custody or joint custody. Article 136, however, is meant to address

entitlement to visitation. One’s entitlement to visitation does not necessarily

foreclose any consideration of visitation pursuant to La.R.S. 9:335 which may

encompass the extent of visitation where joint custody exists, as here. Visitation is

a component of a joint custody implementation order under La.R.S. 9:335. If the

majority’s rationale is followed, then every conceivable deviation would result in a

renewed custody determination implicating different standards of review, depending

upon whether the initial custody decree was a considered decree or a stipulated judgment. For example, a change in a weekend visitation schedule or even a one hour

visitation schedule would be regarded as a custody issue. Thus, in my view, La.R.S.

9:335 applies to a change in a visitation schedule where the issue of fitness is

irrelevant to its determination.

Granger testified that the schedule that had been in place since August

2000 “has a lot of gray areas, and it’s caused a lot of confusion and problems.” He

wants the visitation to be changed to conform with what he understands to be the

generally prevailing schedule in Louisiana since Barnes had moved back to the state.

Granger argued that Savannah had many activities she was involved in during the

summer in Alexandria and the new schedule would be more convenient for Savannah.

Barnes contends that the present schedule has been in place since August

of 2000 and the best interest of Savannah would be to maintain that schedule. Both

parents testified that they are flexible with the visitation schedule. Savannah’s

testimony clearly articulated that she wanted the schedule to remain the same because

of its “flexibility.”

Flexibility would be lost, according to Savannah, if the summer

visitation schedule was modified. Savannah stated that if there are activities being

held in Alexandria, then her mother would forfeit her visitation and allow Savannah

to remain with her father. Conversely, when Savannah wanted to remain for an

extended time with Barnes during Granger’s time of visitation she would not be

allowed. She testified that Granger’s “time is going to be his time” and her father

would not permit her to stay in Shreveport any longer than she is entitled to, even if

Savannah may have certain scheduled activities.

Savannah’s testimony, though not determinative, is impressive. When

deciding how much weight is to be given to a minor child’s testimony, this court has

2 observed that “competency and maturity, not age, are the true determining factors.”

Bandy v. Bandy, 07-849, p. 14 (La.App. 3 Cir. 12/5/07), 971 So.2d 456, 465.

Savannah’s level of maturity and competency are well-reflected in the record. Journal

entries written by Savannah about her relationship with Granger and the articulate

nature of her testimony manifest that maturity. Although a child’s testimony is

usually not given a lot of emphasis, I feel that under these circumstances and with the

court’s observation of Savannah as an “excellent student,” the appropriate level of

maturity and competency was reached.

A trial court’s findings will be given deference as long as the record

suggests that its conclusions were reasonable. The record did not support the trial

judge’s findings that Granger proved by a preponderance of the evidence that a

change in the summer visitation schedule was in the best interest of the child. I

would reverse this change in the summer visitation schedule.

Change in Transfer Time

The second issue focuses on the change of transfer time to 6:00 p.m. To

determine the correctness of the trial court’s judgment, this court has to decide

whether the trial judge abused his discretion in setting this transfer time.

Barnes argues that although she moved back to Louisiana, she still

resides in Shreveport which has a two-hour travel time to Alexandria where Granger

resides. According to Barnes, the appropriate time for transfer of Savannah should

be 4:00 p.m. to allow travel time between Alexandria and Shreveport. Moreover,

Barnes argues that each party typically has other minor children in their home, and

the 6:00 p.m. transfer time does not allow them to coordinate their respective

children’s schedules.

3 The trial court should have taken into consideration the geographical

distance between the two parties’ homes when setting the new transfer time. If this

time was followed, Savannah and the traveling parent would not arrive home until

8:00 p.m. at the earliest. The trial court abused its discretion and I would reverse this

portion of the judgment.

For the foregoing reasons, I respectfully dissent.