Hudson v. Strother

• Decision Date: 02 May 2018
• Docket Number: 17–1044
• Parties: Ronda Maxwell HUDSON v. Clint Tucker STROTHER
• Court: Court of Appeal of Louisiana — District of US

246 So.3d 851

Ronda Maxwell HUDSON

v.Clint Tucker STROTHER

17–1044

Court of Appeal of Louisiana, Third Circuit.

May 2, 2018

Susan Ford Fiser, P. O. Box 12424, Alexandria, LA 71315–2424, (318) 442–8899, COUNSEL FOR DEFENDANT/APPELLANT: Clint Tucker Strother

Darrell Keith Hickman, P. O. Box 48, Alexandria, LA 71309–0048, (318) 448–6353, COUNSEL FOR PLAINTIFF/APPELLEE: Ronda Maxwell Hudson

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and Van H. Kyzar, Judges.

KYZAR, Judge.

Appellant, Clint Tucker Strother, appeals the judgment of the trial court denying his rule for a change of custody of the parties' minor daughter. For the reasons set forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Strother and Appellee, Ronda Maxwell Hudson, are the unmarried parents of Kristen Marie Strother, born on June 16, 2010. By judgment rendered on November 10, 2011, based upon the stipulations of the parties, and signed on January 10, 2012, the parties agreed to share joint custody of Kristen, with Ms. Hudson being designated as the primary custodial parent and with Mr. Strother having reasonable visitation rights. The parties entered into another Consent Judgment on June 30, 2014, wherein Mr. Strother was awarded every-other-weekend custodial visitation and alternating weekly summer custodial visitation.

Subsequently, Mr. Strother filed a Rule for Change of Custody, Rule for Contempt and For Other Relief on June 2, 2017, based on numerous allegations, including that the child had excessive tardiness and unexcused absences from school, that Child Protection had telephoned him, and that the mother, Ronda Hudson, had been involved in physical violence with the man with whom she is living while the minor child was in the home. In this pleading, he also sought and obtained a Temporary Ex Parte Custody Order, whereby Ms. Hudson was given only supervised visitation at her mother's home until the matter could be heard.

On July 24, 2017, a hearing was held; at the conclusion of which the trial court denied the Rule for Change of Custody, holding that "the Court finds that there is insufficient evidence to take the child away from the mother and place it with the father at this point." This appeal by Mr. Strother followed.

On appeal, Mr. Strother alleges four assignments of error, as follows:

1. The trial court committed legal error by applying an incorrect legal standard to determine custody and visitation rights to the minor child, and thus a de novo review by this court is appropriate and necessary.

2. The trial court was manifestly erroneous in failing to recognize that the evidence presented established that sole or domiciliary custody for the father and supervised visitation for the mother would be in the best interest of the child and in failing to tailor a custody and visitation order in a manner that would minimize risk of harm to the minor child.

3. The trial court erred in failing to find that the violent acts against mother by her paramour in front of the child triggered the Post–Separation Family Violence Relief Act.

4. The trial court erred in failing to recognize that the [Appellee's] failure to call her paramour to testify or to explain his failure to testify about matters material to the case and peculiarly within his knowledge created an adverse presumption that his testimony would be damaging and unfavorable to her case.

Legal Standard Applied by the Trial Court for Change of Custody

Mr. Strother first asserts that the trial court erred in applying the incorrect standard of law in denying his rule for a change in the custody arrangements of the parties' minor child. As such, he argues, this court should review the trial court's decision de novo. The standard of review by this court in cases involving child custody issues is well settled.

An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD , 617 So.2d 880 (La.1993). This is especially applicable in a child custody dispute wherein appellate courts accord substantial deference to the trial judge's conclusions. "The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse." Deason v. Deason , 99-1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (citing State in the Interest of Sylvester , 525 So.2d 604, 608 (La.App. 3 Cir. 1988) (citing Bagents v. Bagents , 419 So.2d 460 (La.1982) ) ).

Every child custody case must be viewed within its own peculiar set of facts, and 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. Connelly v. Connelly , 94-527 (La.App. 1 Cir. 10/7/94), 644 So.2d 789. Both the Louisiana Legislature and the Louisiana Supreme Court have made it abundantly clear that the primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child. SeeEvans v. Lungrin , 97–541, 97-577 (La. 2/6/98), 708 So.2d 731.

Guidry v. Guidry , 07-1272, pp. 2-3 (La.App. 3 Cir. 3/5/08), 979 So.2d 603, 605.

"However, if a court of appeal finds that a reversible error of law or manifest error of material fact was made in the lower court, the [appellate] court, whenever possible, is required to review the facts de novo from the entire record and render a judgment on the merits." Jenkins v. Rougeau , 97-257, pp. 3-4 (La.App. 3 Cir. 10/8/97), 702 So.2d 841, 843, writ denied , 97-2849 (La. 1/30/98), 709 So.2d 715 (citing Ferrell v. Fireman's Fund Ins. Co. , 94-1252 (La. 2/20/95), 650 So.2d 742 ).

Mr. Strother asserts that the trial court applied the wrong legal standard as to his burden of proof at trial in ruling against his request for a change in custody. He claims that the trial court held him to the stricter standard of proof that is required for a change of custody from a considered decree. The burden of proof rule in change-of-child-custody cases has been previously stated:

When a trial court has made a considered decree of permanent custody the party seeking a change 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) (referencing Bankston v. Bankston , 355 So.2d 58 (La.App. 2 Cir. 1978) and Languirand v. Languirand , 350 So.2d 973 (La. App. 2 Cir. 1977) ).

However, as noted by Mr. Strother, the custody decree from June 30, 2014 that he sought to change was not a considered decree but was, in fact, a consent decree.

Where, as here, the underlying custody decree is a stipulated or consent judgment, rather than a considered decree, the party seeking modification of the decree must prove that (1) there has been a material change of circumstances since the custody decree was entered, and (2) the proposed modification is in the best interest of [the] child. Hensgens v. Hensgens , 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied , 95-1488 (La. 9/22/95), 660 So.2d 478. The party is not required to prove under Bergeron that continuation of the present custody arrangement is so deleterious to the child as to justify modification or that the harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Evans v. Lungrin , 97-0541 (La. 2/6/98), 708 So.2d 731.

Guidry , 979 So.2d at 606 (footnote omitted).

Mr. Strother states in brief that "it is clear that an incorrect legal standard was applied by the trial court," while also admitting in that same brief that "[i]t is unclear, exactly, what legal standard the trial court applied" in its decision to deny his request to modify custody. He cites no authority for his argument that it held him to the stricter standard. To attempt to establish his claim that the trial court applied the heavier burden of proof required by Bergeron , Mr. Strother points to language used by the trial court in its oral ruling on July 24, 2017. First, he notes the trial court's statement that "even with all the allegations of drug use being thrown about, there have been no drug charges ever filed against the mother." We do not find that this language supports Mr. Strother's argument. It is clear that the trial court found that the allegations of a change in circumstances based on alleged drug use were not proven, especially given the evidence of Ms. Hudson's clean urine screen, and thus, did not support a finding of a change of circumstances for the purposes of child custody. Showing a change in circumstances is still a prerequisite for amending child custody even when set by a consent judgment. Guidry , 979 So.2d 603.

Further, even Mr. Strother admits in brief that the language used by the trial court established that it "did not find it in the child's best interest to change the domiciliary status". Nevertheless, he continued to cite language from the trial court's oral ruling, particularly language concerning the child's schooling and Ms. Hudson's employment situation, to attempt to support his contention. While the trial court did note specific concerns it had in regard to Ms. Hudson's parenting style, it also specifically addressed Mr. Strother, stating:

Mr. Strother, I'm—I understand your concerns and your concerns are legitimate. At the same time, I—I want to advise you that—that the child may be better off with you at this time, but guess what, it's not sufficient to take the child away from the mother. All right.

The trial court explicitly found that the evidence produced did not support proof of a change in circumstances, nor was it proof that a change in...