Mulkey v. Mulkey, 2012–CJ–2709.

• Decision Date: 07 May 2013
• Docket Number: No. 2012–CJ–2709.,2012–CJ–2709.
• Citation: 118 So.3d 357
• Parties: Phillip Ray MULKEY v. Vicki Juanita Harris MULKEY.
• Court: Louisiana Supreme Court

118 So.3d 357

Phillip Ray MULKEY

v.Vicki Juanita Harris MULKEY.

No. 2012–CJ–2709.

Supreme Court of Louisiana.

May 7, 2013.

John Scott Sartin, for Applicant.

The Law Offices of Chris L. Bowman, Chris Lane Bowman, Jonesboro, LA, for Respondent.

JOHNSON, C.J.

[2012-2709 (La. 1]In this custody dispute, the trial court ordered a change in custody, finding the father satisfied the requirements of Bergeron v. Bergeron¹ by establishing that any harm caused by a modification of a 2004 custody decree would be substantially outweighed by its advantages to the child. The trial court's ruling was reversed by the court of appeal. We granted this writ application to review the correctness of the court of appeal's ruling. Because we find no abuse of discretion by the trial court in modifying custody, we reverse the ruling of the court of appeal and reinstate the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

Phillip Ray Mulkey (“Phillip”) and Vicki Juanita Harris Mulkey Pyles (“Vicki”) were married on June 26, 1993, and established their matrimonial domicile in Winnsboro, Louisiana. They had one child during their marriage, Matthew Harris Mulkey (“Matthew”), who was born on January 19, 1998. The couple was divorced by judgment rendered on March 5, 2001. The parties thereafter jointly entered into two separate consent decrees regarding custody of Matthew. Essentially, the consent [2012-2709 (La. 2]decrees provided the parents with seven-day alternating custodial periods with Matthew.

Ultimately, the consent decrees were not able to be maintained. In 2003, both parties petitioned the court to modify the custody plan then in effect. Vicki filed a “Rule to Modify Custody and Increase Child Support.” As grounds for her motion seeking domiciliary custody of the minor child, Vicki alleged the following material changes in the lives of the parties: (1) Matthew, then age five, would begin his formal education in August 2003; (2) Vicki had remarried and had moved to Ruston, Louisiana; (3) the seven-day alternating custody schedule was no longer a viable custody plan because of Matthew's schooling requirements; and (4) Vicki and her family could provide Matthew with a stable home. In addition, Vicki sought child support and requested that Phillip be ordered to pay his share of the minor child's medical expenses.

Phillip filed an “Answer to Rule to Modify Custody and Increase Child Support and Reconventional Demand” wherein he sought to be named the domiciliary parent based on the following grounds: (1) Matthew had resided with him in Franklin Parish since his birth; (2) Phillip had been responsible for Matthew's care and rearing while providing him with a stable home; and (3) Phillip and his family could provide Matthew with a superior custodial environment.

After a trial, the court rendered judgment on June 29, 2003, awarding the parties joint custody of Matthew, with Vicki named the domiciliary parent. Vicki was also granted primary custody during the school year. The trial court signed a judgment to this effect on December 9, 2004. No modification was sought by the parties until 2011.

On July 28, 2011, Vicki filed a “Rule for Payment of Medical Expenses and [2012-2709 (La. 3]Rule to Show Cause for Judgment of Past Due Medical Support, Contempt, and Attorneys Fees” alleging Phillip failed to pay his share of Matthew's uncovered medical expenses and extracurricular activities. In addition, Vicki requested an increase in child support.

In response, Phillip filed an “Answer and Reconventional Demand” seeking to be named the domiciliary parent. Phillip also requested that his child support obligation be terminated, and that Vicki be ordered to pay him child support. As grounds for the modification of custody, Phillip asserted several particular changes in circumstances since the previous custody order. Notably, Phillip asserted that Vicki voluntarily changed employment requiring night shift work, thus she is not home at night with Matthew; Matthew has a history of excessive absences and poor academic performance at school; Matthew has expressed a preference to live with Phillip; and Phillip has remarried and he now lives in a spacious home with Matthew's half-siblings, with whom Matthew has a close bond.

After a Hearing Officer Conference, the Hearing Officer recommended a finding that Phillip did not carry his heavy burden of proof for custody modification pursuant to Bergeron. Phillip timely filed an objection to the Hearing Officer's recommendation. The parties resolved some issues prior to trial, leaving only the issues of custody and support before the trial court.

After trial and submission of post-trial briefs, the trial court determined that although Phillip did not demonstrate that the present custody arrangement was harmful to Matthew, modification of the 2004 custody decree was nevertheless in Matthew's best interest. The court named Phillip the primary domiciliary parent, and made a finding that any harm caused by the modification would be substantially outweighed by the advantages to Matthew.

[2012-2709 (La. 4]In lengthy reasons for judgment, the trial court found that after the 2004 custody decree was rendered, there was a material change in circumstance in the lives of Vicki, Phillip, and Matthew. The court noted Matthew was five when the 2004 decree was rendered, and he is now fourteen, has matured, and his needs, activities and interests have changed.² Matthew confirmed that he wanted to live with his father, testifying: “I've lived most of my life at my mama's [in Ruston] so I want to live down here [at my father's house in Winnsboro] for the rest of the time I have until I move and get my own house.” After questioning Matthew at trial, the court determined he was mature enough to express his parental preference.

The court further noted that Vicki voluntarily changed her employment since custody was originally set, requiring her to frequently work nights. Thus, she was at work when Matthew went to bed and woke up and Matthew had to prepare his own breakfast each morning as well as several of his evening meals, which he generally eats by himself in his room. The court noted that at his father's house Matthew enjoys outdoor activities such as fishing, hunting and riding dirt bikes with Phillip and his cousins. Matthew is also involved in church and youth group activities offered at Life Church where Phillip and his family attend. Testimony revealed the family ate meals together, played games and watched television together.

The court also recognized that Matthew developed several medical conditions since the 2004 decree. He now has Type I diabetes, requiring Matthew to wear an insulin pump which is monitored throughout the day. Vicki also testified he has hypothyroidism and takes medication to control that condition. Vicki complained that Phillip did not participate in Matthew's medical care, and failed to monitor his insulin needs and dietary restrictions. Phillip stated he offered Matthew a balanced diet, but [2012-2709 (La. 5]admitted that Matthew is primarily in charge of monitoring his insulin pump and adjusting his own medication. Phillip criticized Vicki for over-medicating Matthew, and claimed she failed to regularly inform him about Matthew's medical treatment.

Another change noted by the trial court was that Vicki's husband had developed medical problems since the 2004 trial, including depression, CREST Syndrome and Sarcoidosis. The court noted that as a result of these conditions and other extraneous reasons, he has been unable to maintain steady employment.

The court observed that in the past, Matthew excelled in school and won many academic awards until he reached seventh grade. His performance in the eighth grade revealed a significant decline, and he appears to prefer playing video games to doing school work. In addition, whereas he formerly participated in various extracurricular activities, the court noted Matthew reduced his activities in the eighth grade year.

Having found a material change in circumstances, the trial court then evaluated the case using the Bergeron requirements. The court first made a finding that the present custody arrangement was not so deleterious to Matthew as to justify a modification of the custody decree. Thus, the trial court went on to consider whether Phillip proved by clear and convincing evidence that the harm caused by a change of environment was substantially outweighed by the advantages to Matthew. After considering the testimony and evidence, the court found this is a case where modification of the considered custody decree was in the child's best interest even though Phillip was unable to show that the present custody was harmful to Matthew. The court explained:

Vicki was awarded the position of primary domiciliary parent [in 2004] because she offered Matthew more stability and permanency in her family unit, better after-school care and slightly superior parenting abilities at that time.

Now that he is fourteen and will be entering high school in the fall, [2012-2709 (La. 6]Matthew has matured and his world has expanded. He is now involved in after-school, church, athletic, outdoor and social activities which were not part of his life when the case was originally heard. He has expressed a desire to live with his dad and to enjoy the relatives, friends and activities offered in the Winnsboro area.

* * *

There can be no doubt that Vicki has provided Matthew with an adequate environment for the past nine years and that Phillip can provide the minor child with an equally adequate environment for the next four years.

* * *

This court was impressed with Matthew's ability to communicate his sincere desire to live with his father the next four years before he reaches the age of majority. His testimony did not appear to reflect coaching or pressure tactics by Phillip or anyone else. Therefore, his expressed preference will be given great weight...