Opinion
NO. 2013 CU 0096 c/w NO. 2013 CU 0097
06-07-2013
ELIZABETH VARLEY KEISTER v. ROBERT SCOTT KEISTER ROBERT SCOTT KEISTER v. ELIZABETH VARLEY KEISTER
Elisabeth W. Ramirez Covington, Louisiana Attorney for Appellant, Elizabeth Varley Keister Nanine McCool Mandeville, Louisiana Attorney for Appellee, Robert Scott Keister
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 2010-14558 c/w 2011-11491
The Honorable Mary C. Devereux, Judge Presiding
Elisabeth W. Ramirez
Covington, Louisiana
Attorney for Appellant,
Elizabeth Varley Keister
Nanine McCool
Mandeville, Louisiana
Attorney for Appellee,
Robert Scott Keister
BEFORE: GUIDRY, CRAIN, AND THE RIOT, JJ.
CRAIN , J.
Elizabeth Varley Keister appeals the trial court's judgment naming Robert Scott Keister the domiciliary parent of their oldest child. Robert answered the appeal and seeks frivolous appeal damages, including an award of attorney fees. For the reasons that follow, we vacate in part and deny the answer to the appeal.
FACTS AND PROCEDURAL HISTORY
Elizabeth and Robert are the parents of three surviving children, ages nine, eleven, and sixteen. In this proceeding for divorce and incidental matters, a consent judgment was entered awarding Elizabeth and Robert joint custody of the children, with Elizabeth designated as the domiciliary parent. Elizabeth and Robert are both members of the United States Coast Guard. After receiving military orders requiring her to report to duty in Washington, D.C., Elizabeth sought court authority to relocate the two youngest children from their home in St. Tammany Parish. In her motion, Elizabeth stated that she had agreed to allow the oldest child to reside with Robert to allow him to finish high school, but should the court find that this is not in his best interest, she sought authority to relocate him along with the two younger children.
A motion for temporary relocation was set for hearing pending a hearing on the motion to permanently relocate the children. During that hearing, Elizabeth's counsel confirmed that the sixteen-year-old son, in accordance with his wishes, would remain with Robert to complete high school. At the conclusion of the hearing, the trial court denied the request to temporarily relocate the children and ordered Robert's attorney to prepare a judgment. The trial court made no mention of the status of the oldest child.
A judgment was then submitted by Robert's attorney. The record reflects that Elizabeth's attorney objected to the proposed judgment, which included the designation of Robert as the oldest child's domiciliary parent. The written judgment signed by the trial court includes a certification by Robert's attorney that Elizabeth objected to the judgment, with attached email communications between counsel wherein Elizabeth's attorney expressed her objection. The email communications reveal that Elizabeth's attorney contended that the judgment should not include the provision naming Robert domiciliary parent of the oldest child, stating, "If [Elizabeth] was to leave the jurisdiction to assume job responsibilities with the coast guard; [the oldest child] would remain in [Robert's] care." The trial court signed the judgment naming Robert the oldest child's domiciliary parent.
In his appellate brief, Robert indicates that a transcript of the oral ruling was presented to the trial court along with the judgment, and that the trial court reviewed that transcript before signing the judgment. However, the designated record does not reflect whether the full transcript was presented to the trial court.
The judgment also denied Robert's objections of vagueness and failure to state a cause of action. The designated record on appeal does not include those objections and the trial court's ruling on those objections is not before the court at this time.
Elizabeth appeals challenging the portion of the trial court's judgment designating Robert the domiciliary parent of the oldest child. Robert answered the appeal and seeks frivolous appeal damages and an award of attorney fees.
In his appellate brief, Robert states that since this appeal was taken, Elizabeth has dismissed her motion to relocate, having received new orders from the Coast Guard.
DISCUSSION
Elizabeth argues that it was error for the trial court to enter judgment designating Robert the domiciliary parent of the oldest child when no motion to modify custody was before the court, the pleadings were not enlarged to include the issue of modification of custody, the trial court's oral reasons for judgment did not address domiciliary custody of the oldest child, and the parties did not unconditionally agree that Robert would become the oldest child's domiciliary parent. Robert counters that he was designated the domiciliary parent of the oldest child "[p]ursuant to [Elizabeth's] express stipulations during the proceedings." He contends that Elizabeth is "appealing her own stipulation, in open court, that [Robert] would be designated as domiciliary parent[, and in] light of her voluntary consent to the agreement, there is no serious legal question before this [c]ourt on appeal."
Custody awards are commonly made in either a stipulated judgment, where the parties consent to a custodial arrangement, or a considered decree, where the trial court receives evidence of parental fitness to exercise care, custody, and control of a child. R.J. v. M.J., 03-2676 (La. App. 1 Cir. 5/14/04), 880 So. 2d 20, 23-24. Robert maintains that Elizabeth's consent is evidenced by her stipulation that he would be named the domiciliary parent of the oldest child. A stipulation is an agreement between the parties, which establishes the existence or non-existence of facts relevant to the litigation between them, and has the effect of a judicial admission unless prohibited by law. 19 La. Civ. L. Treatise, Evidence and Proof § 4.6 (2012). A judicial confession is an express acknowledgement of an adverse fact made by a party in a judicial proceeding and constitutes full proof against the party who made it. La. Civ. Code art. 1853; Tucker v. St. Tammany Parish School Bd, 03-2401 (La. 9/17/04), 888 So. 2d 235, 237. The effect of a judicial admission is to waive evidence as to the subject matter of the admission. C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La. 12/3/03), 861 So. 2d 156, 159; Gorham v. Gorham, 09-1118 (La. App. 1 Cir. 12/23/09), 31 So. 3d 421, 425, writ denied, 10-0164 (La. 4/5/10), 31 So. 3d 363. A statement must be explicit to constitute a judicial admission. See, Gorham, 31 So. 3d at 425. Declarations made by a party's attorney have the same effect as one made by the party himself. La. Civ. Code art. 1853, comment (b); C.T. Traina, Inc., 861 So. 2d at 159.
The appellate record establishes that Elizabeth sought court authority to relocate the two younger children, stating in her written motion that she agreed to allow the oldest child "to remain in the Parish of St. Tammany, to be in a position to continue his education at Jesuit High School in New Orleans." During the temporary relocation hearing, in questioning a witness, Elizabeth's attorney stated "we haven't really had the opportunity yet to tell you that the issue of [the oldest child] has been resolved as far as we're concerned." Elizabeth's attorney then informed the trial court that the oldest child had expressed his desire to complete his education at Jesuit High School, that Elizabeth had "conceded that [he] would stay here with his dad in Slidell so he can continue on with Jesuit High School," and that the only issues involved the two younger children. As Elizabeth's attorney resumed questioning the witness, Robert's attorney added, "Your Honor, if I could, just for a moment, if we can acknowledge that stipulation also includes that [Robert] would be also designated as domiciliary parent of [the oldest child]." The trial court answered, "Well, of course."
After reviewing the record, we conclude that Elizabeth's agreement for Robert to be the domiciliary parent of the oldest child was entirely premised on her moving away with the two younger children. She agreed that the oldest child would remain with Robert so that he could complete high school in the area. The implication is that Elizabeth and the two younger children would be leaving. We do not find evidence of a stipulation by Elizabeth to name Robert the oldest child's domiciliary parent if she and the younger children did not leave the area. This is supported by Robert's counsel stating that the stipulation "also includes" Robert being named domiciliary parent of the oldest child, thereby acknowledging that Robert being named domiciliary parent was tied to the younger children's custodial arrangement.
The trial court's minutes reflect that a rule for sole custody filed by Robert was also set for hearing on the date of the temporary relocation hearing, but that rule was not heard. Additionally, the trial court made no findings regarding a change in circumstances or the best interest of the oldest child, therefore the only basis for entering judgment naming Robert the domiciliary parent was the alleged stipulation. The record does not support a finding that Elizabeth made an unequivocal stipulation that Robert would be named domiciliary parent of the oldest child irrespective of the trial court's ruling on her motion to relocate the younger children as Robert contends. Once her proposal to relocate the two younger children was rejected by the trial court, the procedural posture of the case required maintaining the status quo, which was joint custody with Elizabeth as domiciliary parent.
A party seeking modification of a consent decree must prove, and the trial court must find, that there has been a change in circumstances materially affecting the welfare of the child since the custody decree was entered and that the proposed modification is in the child's best interest. Kingston v. Kingston, 11-1629 (La. App. 1 Cir. 12/21/11), 80 So. 3d 774, 777.
We also find that Elizabeth did not acquiesce in the judgment, as Robert contends. See, La. Code Civ. Pro. art. 2085 (providing that "[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him."); King v. Crawford, 334 So. 2d 476 (La. App. 1 Cir.), writ refused, 337 So. 2d 879 (La. 1976). Elizabeth has consistently maintained her objection to the judgment.
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CONCLUSION
For the foregoing reasons, we vacate that portion of the trial court's judgment naming Robert Scott Keister the domiciliary parent of the minor child D.P.K. The relief requested in the answer to this appeal is denied. Costs of this appeal are assessed to Robert Scott Keister.
JUDGMENT VACATED IN PART; ANSWER TO APPEAL DENIED.