Utz v. Kienzle

574 So. 2d 1288, 1991 La. App. LEXIS 210, 1991 WL 13004
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1991
DocketNo. 89-779
StatusPublished
Cited by1 cases

This text of 574 So. 2d 1288 (Utz v. Kienzle) 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
Utz v. Kienzle, 574 So. 2d 1288, 1991 La. App. LEXIS 210, 1991 WL 13004 (La. Ct. App. 1991).

Opinion

LABORDE, Judge.

This is a child custody dispute. Plaintiff, Tracy Ann Utz, born Watkins, and defendant, Kenneth J. Kienzle were married in June of 1980. There were four children born of this marriage: William C. Kienzle, born November 12, 1980, Justin J. Kienzle, born March 3, 1983, Christopher J. Kienzle, born on July 25, 1984, and Kristin E. Kien-zle, born December 5, 1985. The parties were divorced on December 30, 1986, by a judgment of the District Court of Kay County, Oklahoma. Pursuant to the divorce decree rendered by that court, the care, custody and control of William C. Kienzle, Justin J. Kienzle and Christopher J. Kienzle was awarded to their father, and the care, custody and control of Kristin E. Kienzle was awarded to her mother. Among other things, the divorce decree provided for specific visitation privileges.

Not long after the divorce decree was signed, Tracy married Jeffery Utz. Jeffery Utz works for the family nursery business. Tracy Utz is a homemaker. The couple reside with Kristin in a newly constructed four bedroom house located in Longview, Texas.

Kenneth Kienzle is employed by Conoco in Lake Charles, Louisiana. On April 23, 1988, he married Katie O’Toole, who is the editor of publications for Lake Charles Memorial Hospital. Kenneth and Katie Kien-zle and William, Justin and Christopher live in a three bedroom house in Sulphur, Louisiana.

On February 5, 1988, Tracy Utz filed a petition for change of child custody and for child support seeking sole custody of the three boys or in the alternative, joint custody of the boys. Kenneth Kienzle answered the suit and reconvened seeking sole custody of Kristin, or, in the alternative, joint custody of all the minor* children. Mr. Kienzle also sought an order that all the parties to the litigation and the minor children submit to a evaluation by a competent mental health professional. On March 29, 1988, the trial judge, pursuant to LSA-C.C. art. 146(H), ordered the parties and the children to submit to an evaluation to be conducted by a clinical psychologist, Patricia Post, Ph.D. Dr. Post administered the Minnesota Multiphasic Personality Inventory along with the Sixteen Personality Factor Questionnaire to Jeffery and Tracy Utz and to Kenneth and Katie Kienzle. She also interviewed the four adults and the four minor children. Her findings were detailed in a report submitted to the trial judge and were also revealed through her testimony at the trial of this matter.

Trial was held on September 14 and 15, 1988. After taking the matter under advisement, the trial judge rendered judgment ordering that the custody of the four minor children be granted jointly to Tracy Utz and Kenneth Kienzle. Tracy Utz was made the domiciliary parent with Mr. Kien-zle receiving visitation privileges for every third weekend of the month, every other school holiday, Father’s Day and eight weeks during the months of June, July and August. It was also ordered that the paternal grandmother have visitation privileges with the four minor children on one Sunday a month. The judgment also contains other provisions which do not concern us here today.

Kenneth Kienzle appeals contending that the trial court erred in finding that Tracy Utz met her heavy burden under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) of proving either that the continuation of the present custody is so deleterious to the children 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 the advantages to the children. Mrs. Utz filed an answer to appeal arguing that the trial court did not have jurisdiction over Kristin Kienzle and its judgment should be modified to remove Kristin from the joint custody order. We reverse the judgment of the trial court and reinstate the original custody decree.

[1290]*1290In Bergeron, supra, the Louisiana Supreme Court set forth the following rule to be applied in custody modification cases:

“... When a trial court has made a considered decree of permanent custody the party seeking a change 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 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. See Bankston v. Bankston, 355 So.2d 58 (La.App. 2d Cir.1978); Languirand v. Languirand, 350 So.2d 973 (La.App. 2d Cir.1977). Cf. Unif. Marriage and Divorce Act, 9A U.L.A. § 409 (1979).”

Bergeron, at 1200. There is no dispute as to the fact that the Oklahoma District Court made a considered decree of permanent custody.

We find that the record clearly does not support a determination that Mrs. Utz met her “heavy” burden of proving that Mr. Kienzle’s custody of the three boys is so deleterious to their welfare that a change of custody is necessary. We recognize that there have been certain changes in circumstances in both parties’ lives, but by and large, these changes have been positive changes, i.e. both parties have remarried and both homes seem to be relatively stable. In fact, in her written report, Dr. Post acknowledged that:

“1. Both of these sets of parents have much to offer the children. Both households are adequate for raising young children, although each parent has a different style of relating to and handling the children. Similarly, each stepparent is quite adequate in the parental role with these children.
2. No clear choice or arrangement is indicated by possible negative effects of either home on the children.”

While Dr. Post’s report and testimony at trial indicated that there were some psychological and social weaknesses in each adult, she generally found that both couples could provide a loving and supportive environment for the children.

Having found that Mrs. Utz clearly did not prove a deleterious change in circumstances, we must now determine whether she proved by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the children. The trial judge based his decision to modify the custody order primarily on a finding that the advantages of reuniting the children outweighed any disruptive harm which would follow from the change of environment. In his reasons for judgment, he stated:

“The ‘heavy burden of proof’ factor or stated another way, ‘clear and convincing evidence that harm likely to be caused by change of environment is substantially outweighed by its advantages to the child,’ was presented to this Court. Testimony from Dr. Post, which this Court values, identified the strengths and weaknesses of the parties and the needs of the children. The reunification of the four children was addressed by Dr. Post and this Court finds that the best interests of the children is to [sic] reunited with their mother and step father. The Court also finds that the petitioner, Mrs. Utz, will facilitate a more flexible visitation arrangement and encourage a closer and fuller relationship with their father and his extended family.
There are other factors which were considered by this Court that outweigh the custody of the three boys remaining with the father and those factors deal with the emotional well-being of all the children.”

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Cite This Page — Counsel Stack

Bluebook (online)
574 So. 2d 1288, 1991 La. App. LEXIS 210, 1991 WL 13004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utz-v-kienzle-lactapp-1991.