Warlick v. Warlick

661 So. 2d 706, 1995 WL 572108
CourtLouisiana Court of Appeal
DecidedSeptember 29, 1995
Docket27,389-CA
StatusPublished
Cited by41 cases

This text of 661 So. 2d 706 (Warlick v. Warlick) 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
Warlick v. Warlick, 661 So. 2d 706, 1995 WL 572108 (La. Ct. App. 1995).

Opinion

661 So.2d 706 (1995)

Anderson C. WARLICK, III, Plaintiff-Appellee,
v.
Rebecca Diane Folds WARLICK, Defendant-Appellant.

No. 27,389-CA.

Court of Appeal of Louisiana, Second Circuit.

September 29, 1995.

*707 Geary S. Aycock, West Monroe, for appellant.

Paul Henry Kidd, Jr., Monroe, for appellee.

Before SEXTON and HIGHTOWER, JJ., and PRICE, J. Pro Tem.

PRICE, Judge Pro Tem.

The plaintiff, Rebecca Diane Folds Warlick, appeals an adverse trial court judgment modifying an existing joint custody arrangement and naming her former husband, *708 Anderson C. Warlick, III, as the domiciliary parent of their three minor children. For the following reasons, we affirm.

FACTS

A.C. Warlick and Rebecca Diane Folds Warlick were married August 10, 1979, and maintained their matrimonial domicile in Ouachita Parish. Three children were born of the marriage: Christina Lynn Warlick (February 2, 1984), Bradley Steven Warlick (September 12, 1987), and Erica Lane Warlick (December 8, 1988). After a period of marital discord and several brief physical separations, the couple permanently separated on May 21, 1993.

On August 2, 1993, Mr. Warlick filed a petition for divorce and custody of the minor children, and Ms. Warlick reconvened seeking the same on August 13, 1993. The parties were sent to mediation pending the rule for custody which was set for hearing on November 8, 1993. In the interim, Ms. Warlick lost her job as Vice-President of Finance at St. Francis Medical Center in Monroe. At the time of the November 8, 1993 hearing, the parties entered into a stipulated judgment on rule wherein they agreed to share custody of the children.

The joint custodial implementation plan provided, inter alia, that neither parent could move and take the children more than 35 miles from Monroe without first obtaining court approval or written permission from the other parent. Neither party was ordered to pay child support.

Mr. Warlick had physical custody of the children from 6:00 p.m. Thursday to 6:00 p.m. Sunday, and Ms. Warlick had custody from 6:00 p.m. Sunday to 6:00 p.m. Thursday. The parties reasonably complied with the custody plan until on or around February 15, 1994, when Ms. Warlick found employment in Port Arthur, Texas, and subsequently relocated. In accordance with the provisions of the custody order, the children stayed in Ouachita Parish with their father. On March 23, 1994, Ms. Warlick, who wanted the children to reside with her in Texas, filed a rule to modify custody. In response, Mr. Warlick filed a rule for child support on April 27, 1994, the date the divorce was rendered. Both rules were scheduled for hearing on May 18, 1994.

ACTION OF THE TRIAL COURT

Following a two-day trial and a post-trial briefing, the trial court prepared a written opinion and rendered a final judgment designating Mr. Warlick as the domiciliary custodian of the three minor children; it awarded custody to Mr. Warlick for nine months, during the school year, and awarded custody to Ms. Warlick for the summer months. Additionally, it awarded visitation to each party for the period that the other had physical custody of the minor children and ordered the parties to agree on a mutually designated exchange site.

The trial court awarded Mr. Warlick child support in the amount of $1,685.03 per month, subject to a 70 percent reduction during the summer when the children were in Ms. Warlick's custody. It further ordered Ms. Warlick to continue to maintain the minor children as beneficiaries under her major medical and hospitalization insurance. Both parents were ordered to pay a pro rata share of any noncovered medical and dental expenses, 21.69 percent from Mr. Warlick and 78.31 percent from Ms. Warlick, that being the ratio of the parties' respective incomes to the total monthly adjusted gross income as required by statute. Ms. Warlick was awarded the income tax dependencies for two of the minor children.

Ms. Warlick, appellant, assigns the following as error:

(1) the trial court erred in requiring appellant to prove a change in circumstances for custody in derogation of the previous stipulation of the parties;
(2) it erred in rejecting the recommendations of Dr. Tony Young, a mental health professional who evaluated the parties and the minor children;
(3) it erred in awarding the primary domiciliary custody of the minor children to A.C. Warlick based on the evidence presented and testimony adduced; and,
(4) should this court reverse the trial court's judgment, the child support award should also be reversed and the worksheet *709 information regarding Mr. Warlick's support obligation should be instated.

Mr. Warlick has answered the appeal and assigns additional errors, to-wit:

(1) the trial court erred in setting child support too low during the summer months of June, July and August;
(2) it erred in deviating from the guidelines presumption that the domiciliary parent should claim dependents and in failing to give express or valid reasons in accordance with LSA-R.S. 9:315.1B.;
(3) it erred in awarding, for IRS purposes, two of the three income dependencies to Ms. Warlick;
(4) it erred in its requirement that he drive half way to Port Arthur, Texas for the purpose of visitation exchange of the minor children with Ms. Warlick; and,
(5) it erred in not issuing a wage assignment.

MODIFICATION OF CUSTODY PLAN

(Appellant's Assignments of Error Nos. 1, 2, 3, & 4)

Ms. Warlick contends the trial court erred in awarding to Mr. Warlick domiciliary custody of the three minor children. First, she contends, the court erred in requiring her to prove that a change in circumstances had occurred since the initial custody decree, where the joint custody plan specifically provided that, in the event either party sought modification of custody, neither party would be required to prove a change in circumstances.

When a trial court has made a considered decree of permanent custody, the party seeking a change in custody 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 in environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Where, however, no evidence was adduced at the district court level prior to the entry of the joint custody order which is sought to be modified, that joint custody decree is not a "considered decree" with the meaning of Bergeron. Smith v. Smith, 615 So.2d 926 (La.App. 1st Cir.), writ denied, 617 So.2d 916 (La.1993); Pulley v. Pulley, 587 So.2d 116 (La.App.2d Cir.1991); Schubert v. Schubert, 605 So.2d 666 (La.App.2d Cir.1992), writ denied, 609 So.2d 230 (La. 1992). In such a situation, a party seeking to modify the joint custody arrangement must still prove that a material change in circumstances had occurred since the original decree and that a change of custody is in the best interest of the child. Id.

We need not address the issue of whether Ms. Warlick is required to show a change of circumstances has occurred since the original decree. She moved to Port Arthur, Texas, which is approximately 254 miles away from Monroe, Louisiana, where Mr. Warlick continues to reside.

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Bluebook (online)
661 So. 2d 706, 1995 WL 572108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warlick-v-warlick-lactapp-1995.