Opinion
No. CA 09 00250.
October 7, 2009.
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT, PARISH OF VERNON, NO. 73,190, DIV. B HONORABLE JOHN C. FORD, DISTRICT JUDGE.
Nicole Hendricks, now Doyle, Road Leesville, LA, Defendant-Appellee: In Proper Person.
Bradley O'Neal Hicks, Leesville, LA, Counsel for Plaintiff-Appellant: Jason A. Hendricks.
Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
NOT DESIGNATED FOR PUBLICATION
Plaintiff, Jason A. Hendricks (Hendricks), appeals the trial court's denial of his rule to modify custody. For the following reasons, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
Hendricks and Nicole Hendricks, now Doyle (Doyle), were married in Vernon Parish on March 24, 2001. Two children were born of the marriage. Hendricks and Doyle separated on August 7, 2004. The parties were divorced by judgment signed March 31, 2005. Prior the signing of the judgment of divorce, the parties agreed to joint custody of the two minor children, with Doyle being designated as the primary custodial parent. A judgment to that effect (and ordering Hendricks to pay $600.00 per month in child support) was signed on November 5, 2004, and this judgment was maintained by the judgment of divorce.
On December 18, 2007, Hendricks filed a rule for modification of custody and visitation seeking to be designated as the primary custodial parent subject to visitation in favor of Doyle. In his rule, Hendricks alleged that the minor children had been primarily in the physical custody of their maternal grandparents and that Doyle had a substance abuse problem. In response, Doyle filed a motion for issuance of rule nisi for contempt of court and for an increase in child support. Doyle alleged that Hendricks had failed to pay child support for the month of January 2008 and that she was entitled to an increase in child support since Hendricks was making substantially more money than at the time of the original judgment of support and that the needs of the children had increased.
Following a hearing on all matters, the trial court dismissed the rule for contempt, denied Hendricks request for modification of custody, and increased child support to $695.27 per month. Hendricks now appeals, asserting that the trial court erred in finding that the best interests of the minor children would be best served by leaving them in the physical custody of Doyle. For the following reasons, we affirm the trial court's judgment.
DISCUSSION
While the best interest of the child is the guiding principle in all child custody matters, La.Civ. Code arts. 131 and 134, we must be mindful that:
The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court's determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.
In determining the best interests of the children, the trial court must consider all relevant factors. La.Civ. Code art. 134. However, the trial court is not required to make a mechanical evaluation of the nonexclusive factors listed therein. Each case must be decided upon its own facts and the relevant factors in light of the evidence presented must be weighed and balanced by the trial court. Cooper v. Cooper, 43, 244 (La.App. 2d Cir. 3/12/08), 978 So.2d 1156.
Additionally, the nature of the underlying custody award determines the applicable burden of proof that a party seeking to modify a prior permanent custody award must meet:
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.
Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La. 1986). Moreover, the party seeking the modification must show "a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order." Id. at 1194. But, if the original custody decree is a stipulated judgment in which the parties have consented to the custodial arrangement ordered, the heavy burden of proof enunciated in Bergeron does not apply. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir.), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. Such is the case at bar.
While Hendricks did not have to meet the Bergeron standard, he was still required to show a material change in circumstances and to prove that the new custody arrangement would be in the best interest of the children. The trial court found that Hendricks did not meet that burden. We agree.
Hendricks, who is in the Army and has remarried, alleged that he could provide a more stable home life for the children than that being provided by Doyle. He also contends that application of the factors enumerated in La.Civ. Code art. 134 weigh in his favor. However, no evidence was presented at trial concerning most of the factors listed in article 134. In attempting to meed his burden of proof, Hendricks presented the testimony of a private investigator who surveilled Doyle for approximately ten days over two-month period from September 21 to November 8, 2008. His testimony indicated that Doyle spent several nights away from home without the children. Doyle's mother, Carolyn Whitehead, testified that Doyle spent one or two nights a week with her boyfriend but that Doyle, not her, primarily cared for the children even though Doyle and her four children were living with Whitehead at the time of trial.
Doyle has two children with Hendricks and two other children.
The trial court found that Doyle was in the habit of spending some nights away from the children and relying on her mother to get the children to school. However, the trial did not find that this was having any effect on the children. The trial court specifically noted that it did not hear any evidence that this was having a detrimental effect on the children. After a review of the record in its entirety, we find ample support for the trial court's conclusion that Hendricks did not prove, by a preponderance of the evidence, the material change in circumstances he alleged. There was no testimony concerning a substance abuse problem on the part of Doyle other than her own admission that, at one time, she was dependent upon a prescription pain medication after being involved in several automobile accidents, but that she had discontinued taking that medication. Also, there was insufficient evidence that she had completely relinquished the care of her children to her mother. Significantly, Hendricks presented no evidence to prove that the present joint custody arrangement is not in the best interests of the two minor children.
DECREE
After careful review of the record, we do not find any abuse of the trial court's discretion in its denial of Hendricks' request for modification of custody. Furthermore, we cannot say that the trial court's finding that a modification of custody was not in the children's best interest was erroneous. Hendricks did not appeal the increase in the monthly amount of child support, and Doyle did not appeal the denial of her rule for contempt. Thus, the judgment of the trial court is affirmed in its entirety. Costs of this appeal are assessed to Plaintiff-Appellant, Jason A. Hendricks.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules — Courts of Appeal. Rule 2-16.3.