Opinion
2012 CU 2069 C/W 2012 CU 2070
06-07-2013
LOLITA WHITMORE v. MICHAEL STAMPS
Lolita Whitmore St. Gabriel, Louisiana Plaintiff/Appellee In Proper Person Brad Scott New Orleans, Louisiana Counsel for Defendant/Appellant Michael Stamps Eusi Phillips Kevin Guillory New Orleans, Louisiana
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Eighteenth Judicial District Court
In and for the Parish of Iberville
State of Louisiana
No. 64,163 consolidated with 67,214
Honorable William Dupont, Judge Presiding
Lolita Whitmore
St. Gabriel, Louisiana
Plaintiff/Appellee
In Proper Person
Brad Scott
New Orleans, Louisiana
Counsel for Defendant/Appellant
Michael Stamps
Eusi Phillips
Kevin Guillory
New Orleans, Louisiana
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON , J.
In this child custody and support case, the father, Michael Stamps, appeals a judgment in which the trial court granted sole custody of the parties' minor child to the mother, subject to the father's visitation. Mr. Stamps also asserts that the trial court erred in failing to reduce the amount of his child support obligation and in failing to alter the time and/or location of exchange of the child. For the following reasons, we amend the judgment to modify the exchange time, and affirm as amended.
FACTS AND PROCEDURAL HISTORY
On April 5, 2006, Lolita Whitmore gave birth to a son, G.W. In October 2007, Ms. Whitmore and Mr. Stamps entered into a consent judgment wherein Mr. Stamps acknowledged paternity of G.W., agreed to pay child support to Ms. Whitmore in the amount of $800.00 per month, and further agreed that Ms. Whitmore would retain domiciliary custody of G.W. The parties also agreed to a physical custody schedule for Ms. Whitmore and Mr. Stamps and that Ms. Whitmore would be responsible for providing health insurance for G.W. Moreover, in June 2008, the court entered an Immediate Income Assignment Order for the child support payments.
In December 2008, Mr. Stamps filed a "Rule for Joint Custody and Implementation Plan; Rule to Modify Domiciliary Custodian and Visitation[;] Rule to Modify Child Support; and Rule for Contempt." On May 24, 2010, the Rule for Contempt was dismissed through a consent order entered between the parties. Also, on August 17, 2011, Ms. Whitmore filed a "Rule to Modify Custody and For Temporary Restraining Orders" seeking, among other things, to be awarded sole custody of G.W.
Following a trial in November 2011, the trial court took the matter under advisement. On May 15, 2012, the trial court issued its judgment, awarding Ms. Whitmore sole domiciliary custody, subject to Mr. Stamps's visitation schedule that was set forth with particularity therein. The trial court also ordered that the time and location of exchange of the child would remain the same and that the child support award "shall remain as previously set, there being no evidence introduced warranting a change."
Mr. Stamps has appealed the trial court's ruling, assigning the following as error:
I. Whether the trial court erred in granting sole and domiciliary custody to Ms. Whitmore in the absence of clear and convincing evidence that there was a material change in circumstances and that such deviation from the stipulated judgment was in the best interest of the child.
II. Whether the trial court erred in finding that there was no evidence introduced related to Mr. Stamps' ability to continue his child support obligation unchanged.
III. Whether the trial court erred in not granting domiciliary custody to Mr. Stamps despite the fact that he proved a material change in circumstances regarding Ms. Whitmore's ability to care for the child.
IV. Whether the trial court erred in not granting increased physical custody to Mr. Stamps, along with altering the exchange location.
Although assignment of error number four does not specifically address modifying the exchange time, we note that Mr. Stamps has briefed that issue on appeal. As such, we will consider the merits of that issue in addressing assignment of error number four. See LSA-C.C.P. art. 2129.
DISCUSSION
In his first assignment of error, Mr. Stamps contends that Ms. Whitmore failed to prove by clear and convincing evidence that granting sole custody to Ms. Whitmore was in the best interest of the child. '"Clear and convincing' evidence is applied in civil cases only in exceptional circumstances, 'where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds.'" Griffith v. Latiolais, 10-0754 (La. 10/19/10), 48 So.3d 1058, 1070. "The clear and convincing standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence." Id.
Also, a party seeking to modify a custody decree contained in a stipulated judgment must prove: (1) that there has been a materia! change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, 738.
The paramount consideration is the best interest of the child. LSA-C.C. art. 131; Evans, 708 So.2d at 736. In determining the best interest of the child, the court shall consider all relevant factors, including those enumerated in LSA-C.C. art. 134. In the absence of an agreement, or if an agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. LSA-C.C. art. 132.
Louisiana Civil Code article 134 provides:
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
The best-interest-of-the-child test under LSA-C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 06-0594 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 191. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Id.
The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Id. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id. at 191-92.
Mr. Stamps contends that Ms. Whitmore failed to show by clear and convincing evidence that there has been a material change in circumstances warranting the granting of sole and domiciliary custody to her. Mr. Stamps also avers that rather than applying the factors set forth in LSA-C.C. art. 134 for determining the best interest of the child, the trial court simply indicated that it was granting Ms. Whitmore sole custody due to Mr. Stamps's "condescending testimony and controlling disposition."
Animosity and rancor between the parties such that they are unable to work together under a joint custody arrangement is not sufficient in itself to warrant the grant of sole custody to one parent. Walet v. Caulfield, 02-2009 (La.App. 1 Cir. 6/27/03), 858 So.2d 615, 622. Sole custody is not warranted solely because of one parent's negative behavior in its dealing with the other. See Griffith, 48 So.3d at 1071. Rather, this issue should be considered within the context of the factors set forth in LSA-C.C. art. 134.
At the hearing, the parties acknowledged that Ms. Whitmore has been G.W.'s primary caregiver since the day G.W. was born. G.W. currently attends Christian Life Academy in Baton Rouge and is described as an intelligent, polite, and well-mannered child. Both Ms. Whitmore and Mr. Stamps are gainfully employed and are able to provide for G.W.'s needs.
However, the record reflects that Mr. Stamps has used derogatory language when addressing Ms. Whitmore, including referring to Ms. Whitmore as a "bitch," "trick," "whore," "jackass," and "deranged." Many times G.W. has been present when Mr. Stamps addressed Ms. Whitmore in this manner. At one point, G.W. allegedly told Ms. Whitmore that he loved her and that "you're not a dirty bitch like my daddy said." Ms. Whitmore testified that G.W. has indicated that Mr. Stamps refers to Ms. Whitmore's mother as "a dopehead," although Mr. Stamps denied he has ever called Ms. Whitmore's mother a dopehead in front of G.W. Additionally, Ms. Whitmore's mother indicated that Mr. Stamps, in G.W.'s presence, curses Ms. Whitmore at the exchange location.
Mr. Stamps also acknowledged that on Mother's Day 2008, he left Ms. Whitmore a card that had a picture of a child on a toilet, and he scratched through the notation "From Mike and [G.W.], we love you" and wrote "Happy Mother's Day Skank." Ms. Whitmore also indicated that a dirty diaper had been left next to the card. Additionally, the record reflects that Mr. Stamps has had overnight visitors of the opposite sex, to whom he is not related by blood or marriage, in his home when G.W. was present.
Ms. Whitmore testified that Mr. Stamps is unpredictable and she feels that "he's going to snap ... be it on [G.W.] or anybody." As a result, Ms. Whitmore indicates that she always has someone present with her during the exchange. She testified that "[y]ou never know what you are going to get with [Mr. Stamps] and that concerns me." Moreover, because of the acrimonious nature of their relationship, Ms. Whitmore testified that she only communicates with Mr. Stamps in writing and she no longer speaks to him. Accordingly, in its judgment, the trial court issued "a permanent injunction .,. in favor of [Ms.] Whitmore against [Mr.] Stamps against harassment pursuant to La. C.C.P. art. 3601, et
Mr. Stamps has also been suspended multiple times by his employer for, among other things, cheating on a test, intimidation, and harassing a female coworker. Mr. Stamps also acknowledged that he had been arrested while working for the district attorney's office. Additionally, both Mr. Stamps and Alfred Peyton, a friend of Mr. Stamps, filed disciplinary complaints against Ms. Whitmore, a practicing attorney. Ms. Whitmore avers that both complaints were dismissed as unfounded.
However, Ms. Whitmore testified that she believes Mr. Stamps cares for G.W. Ms. Whitmore has even allowed Mr. Stamps to spend additional time with G.W. beyond that provided in the consent decree.
While the trial court may have inartfully stated its reason for granting Ms. Whitmore sole custody, it appears that the court was concerned about Mr. Stamps's behavior to the extent that it affects the welfare of the child. Although the trial court did not specifically address the factors set forth in LSA-C.C. art. 134, considering the entirety of the record, we cannot conclude that the trial court erred in granting Ms. Whitmore sole custody. Assignment of error number one is without merit.
Because we find assignment of error number one is without merit, we pretermit discussion of assignment of error number three.
In his second assignment of error, Mr. Stamps contends that the trial court erred in failing to decrease the amount of his child support obligation. At trial, Mr. Stamps testified that his salary had decreased since the consent decree was entered. Mr. Stamps also alleges that he began paying G.W.'s health insurance, although the consent decree required it to be paid by Ms. Whitmore. Additionally, Mr. Stamps avers that Ms. Whitmore's income has increased dramatically since the support award was entered.
In any proceeding to modify child support, the child support guidelines in LSA-R.S. 9:315 et seq. are to be used. Barrios v. Barrios, 95-1390 (La.App. 1 Cir. 2/23/96), 694 So.2d 290, 293, writ denied, 96-0743 (La. 5/3/96), 672 So.2d 691. The guidelines require that each party provide the court with a verified statement of his or her income. See LSA-R.S. 9:315.2. When asserting a material change in circumstances based on a decrease in income, it is incumbent upon the party seeking modification to establish his income at the time of the original child support order and at the time of the filing of the rule to reduce child support. This can only be proven by examining the income and financial status of the party seeking a modification, as required by LSA-R.S. 9:315.2. See State In the Interest of Joseph, 97-0780 (La.App. 4 Cir. 12/23/97), 705 So.2d 776, 779.
Louisiana Revised Statutes 9:315.2(A) provides:
Each party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings. Spouses of the parties shall also provide any relevant information with regard to the source of payments of household expenses upon request of the court or the opposing party, provided such request is filed in a reasonable time prior to the hearing. Failure to timely file the request shall not be grounds for a continuance. Suitable documentation of current earnings shall include but not be limited to pay stubs or employer statements. The documentation shall include a copy of the party's most recent federal tax return. A copy of the statement and documentation shall be provided to the other party. When an obligor has an ownership interest in a business, suitable documentation shall include but is not limited to the last three personal and business state and federal income tax returns, including all attachments and all schedules, specifically Schedule K-1 and W-2 forms, 1099 forms, and amendments, the most recent profit and loss statements, balance sheets, financial statements, quarterly sales tax reports, personal and business bank account statements, receipts, and expenses. A copy of all statements and documentation shall be provided to the other party.
The only evidence introduced at trial regarding Mr. Stamps's income was his testimony. Moreover, there was nothing adduced at trial with regard to Ms. Whitmore's income or the cost of G.W.'s medical insurance. Because Mr. Stamps did not produce any documentary evidence to support his claims, we find no error in the trial court's determination that Mr. Stamps failed to establish by a preponderance of the evidence that he is entitled to a modification of his child support obligation. Assignment of error number two is without merit.
In his fourth assignment of error, Mr. Stamps contends that the trial court abused its discretion in failing to modify the exchange location and/or exchange time to alleviate current logistical problems. Mr. Stamps avers that under the current arrangement, he is not always able to make the one and one-half hour drive on Friday afternoon to the exchange location in time to pick up his son for 6:00 p.m. Mr. Stamps testified that he usually leaves work at 5:00 p.m. on Fridays to travel to the exchange location. He testified that it generally takes an hour and fifteen minutes to an hour and a half to get to the exchange location, depending on the traffic.
There is no dispute that Mr. Stamps, due in large part to traffic leaving New Orleans on a Friday afternoon, cannot always arrive at the exchange location by 6:00 p.m. In light of the foregoing, we modify the exchange times from 6:00 p.m. to 6:30 p.m„ by amending paragraphs 7 and 8 of the May 15, 2012 judgment to read as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Michael Stamps shall continue to have regular visitation with the child every other weekend from Friday at 6:30 p.m. to Sunday at 6:30 p.m.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that during the Summer Michael Stamps shall continue to have visitation with the minor child from Friday at 6:30 p.m. to Sunday at 6:30 p.m., except that he shall have three one week periods of visitation that will coincide with his weekend visitation dates, to be designated in writing by May 1st of each year.
Additionally, in this assignment of error, Mr. Stamps is apparently also seeking additional visitation. However, after a thorough review of the record, we find no abuse of discretion in the visitation schedule entered by the trial court.
CONCLUSION
For the foregoing reasons, paragraph 7 and 8 of the judgment are amended to modify the exchange times from 6:00 p.m. to 6:30 p.m. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to appellant, Michael Stamps.
JUDGMENT AMENDED AND AFFIRMED, AS AMENDED.
2012 CU 2069
C/W 2012 CU 2070
LOLITA WHITMORE
v.
MICHAEL STAMPS
HIGGINBOTHAM, J., dissents in part and agrees in part.
I respectfully disagree with the decision of the majority regarding custody. La. Civ. Code art. 132 provides in pertinent part: "In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent." (Emphasis added.)
The record does not support by clear and convincing evidence that sole custody was in the best interest of Gavin. The record does show that Mr. Stamps has exhibited rude and undesirable behavior toward Ms. Whitmore; however, it appears the court awarded sole custody to Ms. Whitmore based mostly on Mr. Stamps' behavior towards her, without sufficiently considering the other best interest factors listed in La. Civ. Code art. 134.
The evidence showed that Mr. Stamps and Gavin have strong emotional ties to each other, and that Mr. Stamps was a competent father capable of providing Gavin with his needs. Mr. Stamps was awarded considerable custodial time with Gavin, which he exercises. Further, Ms. Whitmore has even allowed Mr. Stamps to spend additional time with Gavin.
It is for these reasons I find sole custody was not warranted in this case. Therefore, I respectfully dissent in part.
I agree with the majority's determination that the exchange time should be changed, and that the record did not support any reduction in child support.