Bergeron v. Bergeron

• Decision Date: 19 August 1986
• Docket Number: No. 85-C-1936,85-C-1936
• Citation: 492 So.2d 1193
• Parties: Marie Louise Bonner BERGERON v. Burke Anthony BERGERON, Jr.
• Court: Louisiana Supreme Court

Page 1193

492 So.2d 1193

55 USLW 2215

Marie Louise Bonner BERGERON v. Burke Anthony BERGERON, Jr.

No. 85-C-1936.

Supreme Court of Louisiana.

Aug. 19, 1986.

Rehearing Denied Sept. 11, 1986.

Elliot G. Snellings, Drury & Tabb, New Orleans, La., for plaintiff-applicant.

Robert B. Clarke, Metairie, for defendant-respondent.

DENNIS, Justice.

The issue presented in this suit to modify a child custody judgment is whether the moving party, in order to obtain a change in the prior custody decree, must show that a change in circumstances has occurred which materially affects the child's well being. The trial court concluded that no such showing was necessary and, stating that the child's best interests so required, proceeded to vacate the mother's longstanding sole custody award and to substitute a joint custody order giving the father physical custody nine months of each year. The court of appeal affirmed. We reverse. Although the trial court retains a continuing power to modify a child custody order, there must be a showing of a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order. None of the events proved by the father, viz., his improper retention of the child in violation of the custody order, and the mother's divorce, remarriage and custody of her two children by her second marriage, in and of itself without additional evidence of effects upon the child, constitutes a change in circumstances warranting consideration of a change in the custody decree.

The petitioner, Burke Anthony Bergeron, Jr., and the respondent, Marie Bergeron McLee, were divorced in 1978. In the divorce judgment McLee was awarded sole custody of their child, Terrence, who was then two years old. In 1979, 1980 and 1981, Bergeron prosecuted three unsuccessful actions to wrest custody from McLee. On August 8, 1984 Bergeron filed this, his fourth petition, to change the custody of the child to himself. After a hearing, the trial court on September 17, 1984 set aside the original sole custody decree, entered a joint custody decree, awarded Bergeron, as primary custodian, physical custody nine months each year, and relegated McLee to three months physical custody per year. On appeal by McLee, the court of appeal affirmed, 474 So.2d 1014 (La.App. 5 Cir.1985), and we granted certiorari. 478 So.2d 136 (1985).

The parties were married in 1968 and resided in Jefferson Parish before their divorce in 1978. Terrence was the only child born of their marriage. McLee remarried, divorced her second spouse and married a third spouse before this litigation. After her second divorce, McLee moved to Shreveport where she practices dentistry and resides with her third husband, two daughters by her second marriage, and, before this litigation, Terrence. McLee's third husband is in the process of adopting her two daughters with the consent of her second husband. Bergeron has been married four times. He was married and divorced once before his marriage to McLee. After his divorce from McLee, he remarried, divorced his third spouse and married again. Bergeron continues to reside in Jefferson Parish with his fourth wife. ¹ The record designated for this court's review does not contain any evidence as to Bergeron's present occupation, financial stability, home environment, other children and dependents, or his general fitness as a custodian.

This litigation over the custody of the unfortunate child arose because his mother allowed him to remain with his father after a 1983 Christmas visit and to attend school in Jefferson Parish during the spring of 1984. The reason for this temporary relinquishment of the child was disputed. The mother testified that the father improperly retained the child after the holiday visit and that she did not bring legal proceedings because the previous continual litigation had been distressing to Terrence. The father testified that the mother telephoned during the Christmas holiday and asked him to keep the child permanently. The trial court did not attempt to resolve the conflict in testimony but proceeded directly to a determination of which parent should have primary custody. We do not believe the mother intended to surrender custody permanently. All of her actions before and after this event convince us that she never wavered in her desire to remain the primary custodian of her son.

On June 2, 1984 Terrence returned to his mother's home in Shreveport. During July, 1984, McLee informed Bergeron by phone of her intentions to retain permanent custody of Terrence in Shreveport. Without McLee's knowledge, her husband arranged with Bergeron to send Terrence to Jefferson Parish for a one week visit with Bergeron in early August, 1984. When McLee learned of the planned visit, she protested but her husband either had already sent Terrence or he felt obligated to follow through with the visit he had agreed upon with Bergeron. On August 8, 1984, after Terrence arrived in Jefferson Parish, Bergeron filed the present suit to substitute himself as sole custodian of the child. Bergeron's testimony that McLee intended for him to retain permanent custody of Terrence is not credible for several reasons: he admitted that McLee told him in July, 1984 that she intended to continue as sole custodian under the court order; his testimony to a later communication with McLee is sketchy and unconvincing; his own petition acknowledged that he unlawfully retained the child over the objections of McLee, the legal custodian, while he sought to change custody to himself.

In his petition to substitute himself as sole custodian, Bergeron alleged that several changes in circumstances had occurred since the last court order respecting custody. The trial court apparently did not consider that a showing of a change in circumstances is a prerequisite to a modification of a child custody decree. Bergeron argues in this court that many of our jurisprudential precepts, such as the change of circumstances rule, have been legislatively abrogated. Before we inquire into what Bergeron alleged and proved, therefore, we must determine whether our change of circumstances rule is still valid.

1. The 1977 Amendment of Civil Code Article 157

Traditionally, to support an action for modification of a judgment of child custody, the plaintiff has been required to show that a change in circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); Tiffee v. Tiffee, 254 La. 382, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Pepiton v. Pepiton, 222 La. 784, 64 So.2d 3 (1953); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); State ex rel Divens v. Johnson, 207 La. 23, 20 So.2d 412 (1944); Higginbotham v. Lofton, 183 La. 489, 164 So. 255 (1935); Tate v. Tate, 169 La. 862, 126 So. 218 (1930); Pullen v. Pullen, 161 La. 721, 109 So. 400 (1926); Walker v. Myers, 150 La. 986, 91 So. 427 (1922); State ex rel Bush v. Trahan, 125 La. 312, 51 So. 216 (1910); Lemunier v. McCearly, 37 La.Ann. 133 (1885). The reasons for the rule are that it is desirable that there be an end of litigation and undesirable to change the child's established mode of living except for imperative reasons. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Speelman v. Superior Court of Santa Clara Cty., 152 Cal.App.3d 124, 199 Cal.Rptr. 784 (1983). See Turner v. Turner, 445 So.2d 35 (La.1984); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). Moreover, to require a party to show a change in circumstances materially affecting the child's welfare before contesting an award of custody, that he previously has had a full and fair opportunity to litigate, protects his adversary and the child from the vexation and expense attending multiple unjustified lawsuits, conserves judicial resources, and fosters reliance on judicial actions by minimizing the possibility of inconsistent decisions. See Turner v. Turner, 455 So.2d 1374 (La.1984); Johnston v. McCullough, 410 So.2d 1105 (La.1982); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Estes v. Estes, 261 La. 20, 258 So.2d 857, 860 (1972) (Barham, J., dissenting). Cf. Montana v. U.S., 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979).

The change of circumstances rule is a jurisprudential precept developed by the courts in the absence of any legislated procedural law specifically governing child custody modification suits. During most of this century Civil Code Article 157, which governed the original award of permanent child custody, in pertinent part, provided only that "[i]n all cases of separation and of divorce the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party."

In interpreting and applying Article 157, in cases involving both the initial granting of custody and the modification of custody decrees, the courts developed several jurisprudential precepts: (1) The best interest of the children principle (the paramount consideration in determining to whom custody should be granted is always the welfare of the children); (2) The maternal preference rule (generally, it is in the best interests of the children to grant custody to the mother, unless she is morally unfit or otherwise unsuitable); (3) The change of circumstances rule (discussed above); (4) The heavy burden of proof for modification of custody rule (when the trial court has made a considered decree of permanent custody, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from...