285 So.3d 7 (La.App. 3 Cir. 2019), 19-349, Joubert v. Joubert

Docket Nº19-349
Citation285 So.3d 7, 2019-349 La.App. 3 Cir. 11/13/19
Opinion JudgePERRY, Judge.
Party NameCornell Mark JOUBERT v. Francesca Antoinette Stewart JOUBERT
AttorneyFrank Granger, Counsel for Plaintiff/Appellant: Cornell Mark Joubert B. Thomas Shea, Tom Shea Family Law, L.L.C., Counsel for Appellee: Francesca Antoinette Stewart Joubert
Judge PanelCourt composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
Case DateNovember 13, 2019
CourtCourt of Appeals of Louisiana

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285 So.3d 7 (La.App. 3 Cir. 2019)

2019-349 La.App. 3 Cir. 11/13/19

Cornell Mark JOUBERT

v.

Francesca Antoinette Stewart JOUBERT

No. 19-349

Court of Appeals of Louisiana, Third Circuit

November 13, 2019

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[Copyrighted Material Omitted]

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2016-5222, HONORABLE LILYNN CUTRER, DISTRICT JUDGE

Frank Granger, Counsel for Plaintiff/Appellant: Cornell Mark Joubert

B. Thomas Shea, Tom Shea Family Law, L.L.C., Counsel for Appellee: Francesca Antoinette Stewart Joubert

Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.

OPINION

PERRY, Judge.

[2019-349 La.App. 3 Cir. 1] This case addresses the question of whether the mother of two minor children showed a material change in circumstances to upset a prior consent judgment that had established custody and visitation. For the following reasons, we amend and affirm, and remand to the trial court with instructions.

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FACTS AND PROCEDURAL HISTORY

Cornell and Francesca Joubert were married on May 23, 1998. The parties have two minor sons, J. B. born on October 17, 2003, and C. J. born on December 31, 2008, and one major daughter, K.J. Thereafter, on December 28, 2016, Cornell, who was represented by counsel, filed for a divorce pursuant to La.Civ.Code art. 103. Although Francesca was not represented by counsel, she participated in the preparation of the divorce petition, property settlement, child custody, and child support agreement in which Francesca agreed to pay Cornell child support of $1,700.00 a month.[1] These items were memorialized on December 28, 2016, in a stipulated judgment which, among other matters, indicated their agreement that the parties would have joint custody of the minor children. As reflected in the Joint Custody Plan that the parties implemented, the parties adopted the following visitation provisions: 1. The primary domicile shall be at the residence of CORNELL MARK JOUBERT, who is designated as the domiciliary parent.

2. The parties shall have the children in their care as follows:

a. Standard Visitation : Reasonable with the parties to work out the details on their own, and with the parties to take into consideration the age of the children and their activities and the like.

[2019-349 La.App. 3 Cir. 2] b. Summer Visitation : Reasonable with the parties to work out the details on their own, and with the parties to take into consideration the age of the children and their activities and the like. They will be flexible with each other on vacation plans.

c. Holiday Visitation : Reasonable with the parties to work out the details on their own, and with the parties to take into consideration the age of the children and their activities and the like. The parties will work with each other to continue the children’s involvement in family customs and traditions.

On May 30, 2017, Francesca filed a rule to modify custody, seeking to outline a specific access schedule which is in line with a 50/50 shared custody schedule. As justification for her modification request, Francesca outlined the following three material changes in circumstances: (a) Cornell has not allowed her to have reasonable access; (b) Francesca has made multiple pleas for more access but Cornell has refused such; and (c) Cornell’s work schedule makes it more difficult for him to spend as much time with the minor sons as Francesca’s work schedule allows.

After conducting a two-day trial on July 26, 2018, and October 18, 2018, the trial court: (1) determined that because the parties’ original judgment on custody and visitation was a consent judgment, the heavy burden outlined in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), was inapplicable; thus, the moving party only had to show a material change in circumstances since the original decree and that the proposed modification was in the best interest of the children; (2) found the following showed a material change in circumstances: (a) the parties were never able to agree on a visitation schedule; (b) Cornell imposed a plan that he determined was reasonable; and (c) the parties were unable to agree on

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a plan so that each would share equal time with the boys. After thoroughly reviewing the twelve best interest factors outlined in La.Civ.Code art. 134, the trial court granted Francesca’s motion [2019-349 La.App. 3 Cir. 3] to modify custody, awarded them joint custody, named Cornell the domiciliary parent, and granted visitation according to a joint custody plan.

Cornell appeals, contending: (1) the trial court erred when it found Francesca proved a material change of circumstances and by using the best interest of the children factors in La.Civ.Code art. 134 as a framework to satisfy the material change of circumstances analysis requirement in a child custody modification action; and (2) its findings of fact were manifestly erroneous and clearly wrong by failing to consider all of the facts proven at trial in analyzing the best interest factors to modify the previous stipulated custodial visitation agreement between Cornell and Francesca.

STANDARD OF REVIEW

The trial court’s factual conclusions are given substantial deference by appellate courts in child custody matters. Steinebach v. Steinebach, 07-38 (La.App. 3 Cir. 5/2/07), 957 So.2d 291. Unless there is a legal error, "[t]he determinations made by the trial judge as to custody ... will not be set aside unless it clearly appears [from the record] that there has been an abuse of discretion[.] " Nugent v. Nugent, 232 So.2d 521, 523 (La.App. 3 Cir. 1970); see also Mulkey v. Mulkey, 12-2709 (La. 5/7/13), 118 So.3d 357. "The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts." McCorvey v. McCorvey, 05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 362, writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300.

Absent legal error, appellate courts must "review the record in its entirety and (1)...

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