Boesch v. Boesch

• Decision Date: 08 February 2017
• Docket Number: NO. 16–CA–526,16–CA–526
• Citation: 210 So.3d 937
• Parties: Kelly W. BOESCH v. Deborah Sylvester BOESCH
• Court: Court of Appeal of Louisiana — District of US

210 So.3d 937

Kelly W. BOESCH
v.
Deborah Sylvester BOESCH

NO. 16–CA–526

Court of Appeal of Louisiana, Fifth Circuit.

February 08, 2017

COUNSEL FOR PLAINTIFF/APPELLANT, KELLY W. BOESCH, Phyllis C. Coci

COUNSEL FOR DEFENDANT/APPELLEE, DEBORAH SYLVESTER BOESCH, Kristyl R. Treadaway

Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg

HANS J. LILJEBERG, JUDGE

In this child custody proceeding, the father appeals the trial court's judgment granting the mother's Rule to Modify Child Custody and awarding the parties joint custody, with the mother named as the domiciliary parent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties, Kelly Boesch ("Kelly") and Deborah Boesch Corb ("Deborah"), were married on February 26, 2000. During their marriage, the parties had two children: Christian, born January 28, 2003; and Jaden, born April 1, 2005. Kelly filed for divorce in January of 2008, and a judgment of divorce was rendered on March 20, 2009.

After a custody evaluation was performed, the parties entered into a consent

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judgment on December 16, 2008, which provided that the parties would have joint custody of the children, with both parents designated as co-domiciliary parents. Under their agreement, the children would live with the father, Kelly, and the mother, Deborah, would have visitation on her days off from work. Deborah was on active duty with the United States Air Force at that time.

On November 30, 2009, the parties entered into a second consent judgment, which provided that upon Deborah's release from the military, the parties would continue to have joint custody of the children, with both designated as co-domiciliary parents, but with the parties having 50/50 shared custody on a week-to-week basis.

On May 13, 2013, Deborah filed a Rule to Modify Child Custody, asserting that there had been a material change in circumstances to justify a custody modification, and that the shared physical custody schedule was no longer in the best interest of the children. In her pleading, Deborah requested that she be designated as the primary domiciliary parent and that the children reside with her, subject to visitation with Kelly every other weekend.

Deborah set forth several assertions in support of her claim that a material change in circumstances had occurred. She noted that she was no longer in the military, had remarried, and was a stay-at-home mom, with much more time to care for the children, assist with their medical needs and hygiene, and provide a balanced diet. She claimed that she provided the children with a stable environment, whereas Kelly allowed the children to live in chaos and watch excessive television, which resulted in their failure to complete homework and caused stress and confusion for the children. Deborah further asserted that the parties' son, Christian, had started exhibiting behavioral problems at school, including bullying, which she believed was correlated with Kelly's "lack of parenting skills and poor example." She further raised issues pertaining to the children's hygiene during their time with Kelly. Finally, Deborah set forth several reasons why Kelly "makes it impossible" to co-parent the minor children, including that Kelly is hostile and bitter over their divorce and her remarriage, that Kelly refuses to administer Christian's allergy medicine, and that the parties cannot agree on a primary physician for the children, as well as other issues.

On May 30, 2013, Kelly filed an Opposition to Deborah's Rule to Modify Child Custody, arguing that no material change in circumstances had occurred since the November 30, 2009 consent judgment. He further asserted that he and the children are "very bonded" and that he provides a stable and loving home for them. Kelly also denied failing to appropriately attend to the children's hygiene and homework, and he denied allowing them to watch excessive amounts of television. Finally, in his opposition, Kelly asserted that Deborah wants him to medicate Christian when he is not sick, Deborah's husband threatens the children with corporal punishment, and Deborah does not foster a relationship between him and the children.

On June 7, 2013, the parties agreed to have Gail Pesses, M.S.W., L.C.S.W., perform an updated custody evaluation.¹ On December 9, 2013, Ms. Pesses completed her updated evaluation, recommending that the parties should have joint custody, with Deborah designated as the domiciliary parent. She recommended that the children live primarily with Deborah and

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have visitation with Kelly every other weekend from Thursday after school until Sunday night, and on Tuesdays after school when he has not had visitation the weekend before. Ms. Pesses made several additional recommendations pertaining to medical treatment, a holiday schedule, and other issues.

On January 31, 2014, the domestic hearing officer recommended that the court adopt Ms. Pesses' recommendations until there was a ruling on Deborah's Rule to Modify Custody. This became an interim order of the court.

On June 24, 2014, Deborah filed a Motion for Updated Child Custody Evaluation, which was granted by the trial court. Thereafter, on March 26, 2015, Deborah filed a Motion to Set Custody Trial and Amended Rule, requesting sole custody of the children for the reasons previously asserted and also alleging:

1) Kelly was still refusing to medicate Christian, which resulted in Christian having to go to Children's Hospital for exacerbation of his allergy symptoms.

2) Kelly discussed parenting conflicts with the children's pediatrician in front of Christian. Kelly taped his conversation with the pediatrician, and when the doctor found out she had been secretly recorded, she refused to treat the children any longer.

3) Deborah has attempted to use the parenting coordinator to select a new pediatrician, but Kelly refuses.

4) Christian has been having behavioral problems at school, and he was reported to the state as a bully.

Trial on the change of custody matter was held on July 28 and 29, 2015, and October 1 and 21, 2015. At trial, Gail Pesses, the court-appointed custody evaluator, was accepted as an expert in social work and child custody evaluations. Ms. Pesses stated that Deborah and Kelly have "very little effective non-confrontational communication." She testified regarding different areas of conflict, including arguments about sharing school information, the allergy medicine dispute, the children's relationship with and name for Deborah's husband, and others. Ms. Pesses testified that Kelly thinks Deborah and her husband, John Corb, want Kelly out of the children's lives, but Ms. Pesses does not think that is true. She testified that both children indicated that their parents' households are very different. Ms. Pesses testified that both children expressed things they liked about both parents and things they wished each parent would do better.

Ms. Pesses testified that she believes both parents have contributed to the parenting conflict. She believes that Kelly goes to extremes when he is angry by speaking to the children about parenting conflicts, the court proceedings, and what he thinks about Deborah's requests, which in turn causes more conflict. Ms. Pesses indicated that the children are put in the middle which pressures them and can cause them to feel less secure and worry. She testified that this can contribute to Christian's acting out at school, though many factors could be involved.

Ms. Pesses opined that the present custody situation was "miserable to everybody" and that they were "stuck" and unable to move forward with the children's needs. She stated that Kelly puts his needs before the children's and he is unable to control his anger and jealousy, which prevents rational solutions to co-parenting dilemmas and serves as a dangerous model for the children, especially Christian. While Ms. Pesses testified that neither party wants to hurt the children, she believes that joint custody with Deborah

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as the domiciliary parent is in the best interest of the children.

Lynette Duhe, who was accepted as an expert in psychology and counseling, testified that she provided counseling to Christian in 2012 and again in 2014. She testified that she did not think the shared custody arrangement was negatively impacting Christian and that limiting time with Kelly could negatively impact Christian. However, she also noted that she had to speak with the parties about the amount of tension between them and how it was affecting Christian. Ms. Duhe believes that Kelly minimizes Christian's behavioral problems, and she thinks Deborah needs to revise her fears about Christian being disturbed or it could become a self-fulfilling prophecy.

Alicia Pellegrin, an expert in psychology and child custody evaluations, performed psychological evaluations of the children. Dr. Pellegrin testified that Deborah and Kelly are polarized in how they view the children, the situation, and each other's parenting skills. She testified that Jaden is well-adjusted and "happy go lucky." However, she found Christian to be socially and...