94 0527 La.App. 1 Cir. 10/7/94, Connelly v. Connelly

• Decision Date: 07 October 1994
• Citation: 644 So.2d 789
• Parties: 94 0527 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 789

644 So.2d 789

94 0527 La.App. 1 Cir. 10/7/94

Marilyn M. CONNELLY v. Michael R. CONNELLY.

No. CA 94 0527.

Court of Appeal of Louisiana, First Circuit.

Oct. 7, 1994.

Donna W. Lee, Michael S. Walsh, Baton Rouge, for appellant Marilyn M. Connelly.

Michael R. Connelly, in pro. per.

Before CRAIN, FOIL and WHIPPLE, JJ.

[94 0527 La.App. 1 Cir. 2] WHIPPLE, Judge.

This is an appeal by Marilyn M. Connelly from a judgment modifying a previous joint custody consent judgment and awarding sole custody of Christopher Connelly to his father, Michael R. Connelly. For the following reasons, we affirm but remand to the trial court for implementation of a visitation plan.

FACTS AND PROCEDURAL HISTORY

The parties were married on August 18, 1970, and physically separated in May of 1983. Three children were born of the marriage: Sean, Patrick and Christopher. On November 7, 1983, Marilyn Connelly filed a petition for separation and sought permanent custody of the three children. Michael Connelly reconvened, seeking joint custody of the children. A judgment of divorce was eventually rendered, and by agreement of the parties, Marilyn and Michael Connelly were awarded joint custody of the three children, with Marilyn Connelly designated the domiciliary parent. Michael Connelly was granted liberal access to the children. Shortly thereafter, in March of 1986, Sean Connelly, then approximately twelve years old, voluntarily chose to live with his father (and has resided with his father since that time).

In 1988, Michael Connelly married Kay Abed Connelly, who had three children by a previous marriage. Michael Connelly later adopted one of Kay's children and Kay Connelly adopted Sean Connelly shortly after he reached age eighteen. In December, 1992, Patrick, then approximately seventeen years old, also went to live with Michael and Kay Connelly. Thus, the issues involved in this appeal relate to custody of the youngest child and sole remaining minor, Christopher Connelly.

On July 25, 1993, Marilyn Connelly moved to Lexington, Virginia, taking Christopher with her, without the knowledge or consent of Michael Connelly. Within four days after the move, Michael Connelly was notified of the move by letter. While Michael Connelly was provided with a post office box address, he was not provided with a physical address or phone number where he could reach Christopher.

[94 0527 La.App. 1 Cir. 3] Shortly thereafter, on August 9, 1993, Michael Connelly filed a rule to change custody, seeking permanent sole custody of Christopher Connelly as well as an immediate order awarding him temporary custody of Christopher. On August 10, 1993, Marilyn Connelly filed a "Rule for Change of Custody and Visitation Plan," seeking specific visitation with Patrick Connelly, who was then residing with his father, and a revision of the previous custody and visitation plan regarding Christopher.

By order dated August 11, 1993, the trial court ordered Marilyn Connelly to return Christopher to the jurisdiction of the court not later than August 17, 1993. A hearing on the merits of the parties' rules was scheduled for December 1, 1993. Marilyn Connelly then applied to this court for supervisory writs of review of the trial court's ruling requiring the return of Christopher to the jurisdiction of the court. On August 17, 1993, this court granted her writ application and stayed the trial court's order, pending a full hearing on the rules to change custody and visitation.

Trial on the rules was held on August 23, 26, and 27, 1993. After hearing the evidence presented, the trial court determined that a change in custody was warranted and by judgment dated September 3, 1993, the trial court awarded Michael Connelly sole permanent custody of Christopher Connelly, with reasonable visitation rights in favor of Marilyn Connelly. In accordance with the stipulation of the parties, the trial court also named Michael Connelly as domiciliary parent of Patrick Connelly, with reasonable visitation rights accorded to Marilyn Connelly. Thereafter, Marilyn Connelly filed a motion for new trial, which was denied by the trial court.

Marilyn Connelly appeals, assigning the following as error:

1. The trial court erred in failing to apply the "change in circumstances" rule which specifically governs modification of consent decrees;

2. The trial court erred in changing an existing consent joint custody decree to sole custody based on Marilyn Connelly's relocation to another state without requiring Michael Connelly to demonstrate that the relocation materially and detrimentally affected the child;

[94 0527 La.App. 1 Cir. 4] 3. The trial court committed manifest error in his application of the factors enumerated in LSA-C.C. art. 131, because the evidence did not support his findings of fact, as follows:

a. The trial court failed to give proper weight and credibility to the testimony of a fourteen year old boy's preference to continue living with his mother.

b. The trial court erred in concluding that a drop in the child's grades was attributed to a relocation to Virginia without any evidence to support that conclusion.

c. The trial court erred in giving greater weight to the permanence of a family unit than to the stability of the child's environment.

d. The trial court was incorrect in concluding that Marilyn Connelly's financial position decreased after her relocation to Virginia.

4. The trial court erred by changing an existing consent custody decree to sole custody without awarding specific visitation rights of Christopher to Marilyn Connelly;

5. The trial court erred in denying Marilyn Connelly's motion for directed verdict; and

6. The trial court erred in denying Marilyn Connelly's motion for a new trial.

MODIFICATION OF CUSTODY

(Assignments of Error Nos. 1, 2 & 3)

When a trial court has made a considered decree of permanent custody, the party seeking a change in custody bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). However, where no considered decree of custody has been rendered, the "heavy burden" rule does not apply. A party seeking to modify an existing custody arrangement must still prove that a change in circumstances materially affecting the welfare of the child has occurred since the original decree and that the modification proposed is in the best interest of the child. Smith v. Smith, 615 So.2d 926, 931 (La.App. 1st Cir.), writ denied, 617 So.2d 916 (La.1993).

Every child custody case must be viewed within its own peculiar set of facts. Cooper v. Cooper, 579 So.2d 1159, 1162 [94 0527 La.App. 1 Cir. 5] (La.App. 2nd Cir.1991). A trial court's award of custody is entitled to great weight and will not be overturned on appeal unless an abuse of discretion is clearly shown. Rogers v. Rogers, 577 So.2d 761, 763 (La.App. 1st Cir.1991).

In the instant case, the joint custody decree was entered initially by consent of the parties. Accordingly, to prevail on his rule to change custody, Michael Connelly was required to prove that a change of circumstances had occurred which materially affected Christopher's welfare and that the modification proposed was in Christopher's best interest.

In her first assignment of error, Marilyn Connelly contends that the trial court erroneously rejected the change of circumstances rule and only considered the best interest of the child. In her second assignment of error, she contends that Michael Connelly did not prove that the relocation materially and detrimentally affected Christopher. We find no merit in either argument.

Although not stated in these specific terms, it is clear from the record and the trial court's reasons for judgment that the trial court properly applied the change of circumstances rule in this case and correctly determined that the relocation of Marilyn and Christopher Connelly to Virginia constituted a change in circumstances which materially affected the welfare of the child.

The record shows that while Christopher's primary residence had been with his mother, he enjoyed regular and liberal visitation with his father and stepmother, two biological brothers, one adopted sister and two step siblings. ¹ Clearly, Christopher's move to Virginia caused a separation in his established family unit. Not only did the move have the effect of interfering with Michael Connelly's exercise of visitation with Christopher, the move also had the effect of greatly limiting Christopher's contact with his siblings.

[94 0527 La.App. 1 Cir. 6] Moreover, the record shows that Christopher, who was fourteen years old at the time of the hearing, had spent his entire lifetime in Baton Rouge, Louisiana. The trial court noted that Christopher participated in many activities with his father, stepmother and siblings, including vacation, sports and scout activities. Christopher and his father and brothers were all very involved in Boy Scouts, with Michael Connelly participating as Scout Master of Christopher's scout troop. Through his community ties, Christopher had established many friendships in the Baton Rouge area. His mother's decision to relocate to Virginia cut off these contacts. In contrast, in Virginia, Christopher had one friend and no relatives other than his mother.

The record also reveals that because of the time chosen by Marilyn Connelly to accomplish the move to Virginia, Christopher was required to forego attending the National Boy Scout Jamboree, an important event in scouting which Christopher had been scheduled to attend and for which Christopher had worked in excess of one year to earn money to help pay for attendance at this event. Marilyn Connelly admitted that the National...