Jones v. Coleman

• Citation: 18 So.3d 153
• Decision Date: 15 July 2009
• Docket Number: No. 44,543-CA.,44,543-CA.
• Parties: Robert and Sharon JONES, Plaintiffs-Appellees v. Christopher Elliot COLEMAN and Christine Dale Jones, Defendants-Appellants.
• Court: Court of Appeal of Louisiana (US)

18 So.3d 153

Robert and Sharon JONES, Plaintiffs-Appellees v. Christopher Elliot COLEMAN and Christine Dale Jones, Defendants-Appellants.

No. 44,543-CA.

Court of Appeal of Louisiana, Second Circuit.

July 15, 2009.

Sockrider, Bolin, Anglin & Batte By: H.F. Sockrider, Jr., Shreveport, for Appellants.

Jones, Odom, Davis & Politz By: Nyle A. Politz, Shreveport, for Appellee.

Before GASKINS, CARAWAY and PEATROSS, JJ.

CARAWAY, J.

In this case, the youthful, unmarried parents relinquished custody of the child to the maternal grandparents shortly after the child's birth. The grandparents' action to establish custody under La. C.C. art. 133 immediately followed resulting in a consent judgment for their sole custody of the child. Four years later, the father commenced this action to modify the grandparents' custody and establish his primary custody of the child. In support of his claim for custody the father asserts his rehabilitation, maturity, relationship with the child, and a stable home environment. He argues that his parental primacy constitutionally requires that the primary custody of the child be awarded to him. The trial court rejected these arguments and allowed the child's custody to remain in the "excellent" environment of care which the grandparents had continuously provided. The father now appeals. Based upon the provisions for the award of custody to a nonparent under Article 133 we determine that the trial court correctly rejected modification of the grandparents' custody and affirm.

Facts

Christopher Elliot Coleman ("Christopher") and Christine Dale Jones ("Christine") are the biological parents of a son Cody, born January 28, 2002. Christopher was 21 at the time of Cody's birth, and he and Christine, who was 18, were not married. Only weeks after Cody's birth, the couple separated and Christine placed the custody of Cody with her parents, Robert and Sharon Jones (hereinafter the "Grandparents"). After that time, Christine never sought custody of Cody and has very minimal contact with the child.

On August 21, 2002, the Grandparents filed a petition against Christopher and Christine seeking custody of Cody. Specifically the Grandparents alleged that "an award of joint custody or of sole custody to either parent would result in substantial harm to the child." A Judgment on Rule was signed by the trial court on September 19, 2002, and indicated that at the hearing, evidence was "adduced by the stipulation and agreement of the parties." The consent judgment ordered that the Grandparents would be granted custody of Cody, subject to reasonable visitation privileges in favor of Christopher and Christine at the discretion of the Grandparents. The parties reserved Christopher's and Christine's rights to seek specific visitation privileges in the future.

On March 31, 2005, Christopher named the Grandparents and Christine as defendants in a rule to change custody. He alleged a material change in circumstances based upon the bond developed through his regular visitation with Cody. He also alleged he had obtained a driver's license, car and stable employment. Christopher also sought to limit Christine's visitation rights due to her recent arrest for felony drug charges.

This second action concerning the custody of the child never went to trial. Instead, the trial court signed another consent judgment in September 2005. The court expanded and modified Christopher's visitation rights to include every other weekend and every Wednesday evening visitation. Christopher was also granted visitation with Cody for one-half of the Christmas and Thanksgiving holidays and every other week during the months of June and July of each year.

Subsequently, this action commenced in September 2006, with Christopher's filing of a second rule to change custody against the Grandparents. Christopher argued that the further development of his relationship with his son due to consistent visitation and "the facts enumerated" in his prior rule to change custody, justified his primary custody of Cody with reasonable visitation in the Grandparents. Christopher requested that a mental health expert be appointed to evaluate the parties. The trial court signed an order granting the mental health expert evaluation on February 5, 2007.

Trial of this matter occurred over a four-day period in November 2008. The court-appointed mental health expert who evaluated the parties, Dr. Bruce McCormick, was the first to testify. Dr. McCormick interviewed the Grandparents, Christopher and Christopher's wife. He also observed the child in the presence of the adults and concluded that he was familiar with and comfortable in the presence of both his father and the Grandparents. The psychological evaluations of the child revealed him to be a "normal, healthy kid." Dr. McCormick testified that he was "convinced that all of the adults ... genuinely love Cody." He concluded that it would be "distressing" for Cody to be deprived of contact with the parties. Dr. McCormick saw no difference in the parties' capacity to provide love, guidance, food, shelter and medical care to Cody but stated that it was the Grandparents' home which had provided the stable environment for the child virtually his entire life. Dr. McCormick concluded that Cody has had "a grandfather and a grandmother that were functional parents, [whom] ... he has bonded with and loves like functional parents."

Relevant to the issue of the parties' ability to facilitate a relationship among themselves, Dr. McCormick testified that while the parties were able to foster the relationship, they struggled with a willingness to do so. He noted the Grandparents' distrust of Christopher and their difficulty in facilitating a relationship with him which he rooted in a "genuine, honest concern for the child that ends up having the effect of restricting information and perhaps restricting contact." Dr. McCormick stated that Christopher expressed more of a willingness to nurture Cody's relationship with the Grandparents. Ultimately, Dr. McCormick concluded that the child was "close to being the rope in a tug-of-war, and he doesn't need to be pulled on so hard. He needs to have some resolution."

Dr. McCormick refused to make a recommendation as to what placement would be in the best interest of Cody. He stated that "this child could do very well with both parents — both households — and both households want him." However, when pressed by the trial court, Dr. McCormick stated that the child's interest might best be served by the father having custody. He based this on his belief that "the child may be a little better off having give-and-take with some siblings, and maybe sometimes get in trouble because he didn't get his homework done because the parents were a little too busy to make sure it got done." Dr. McCormick testified that these circumstances did not exist in the Grandparents' home because they tended to dote upon the child.

Christopher conceded that at the time of Cody's birth he was not in a place to take care of a child, although he believed that the agreed-to custody arrangement was temporary. Christopher testified that he was gainfully employed and had remarried at the time of trial. His wife's 17-year-old son lived with them and got along very well with Cody. Christopher has been faithful to exercise his visitation rights since obtaining them. He believed that Cody's best interest would be served by his living with him with substantial visitation rights to be given to the Grandparents.

Anne Coleman, Christopher's wife, testified that Cody is very comfortable with her home and that Cody and his father have a good relationship which has developed over the years. She admitted that communication between the Grandparents and Christopher has been a problem.

Robert and Sharon Jones also testified at trial. Robert is self-employed and owns an awning company; he has had the business for 30 years. Robert agreed that the parties have trouble communicating, although he blamed Christopher. Robert conceded that Christopher has changed for the better and become a lot more responsible. His visitation with his son has been consistent, and he desires Christopher to have a relationship with Cody. Sharon corroborated the testimony of Robert adding that she and Robert maintain apprehension about Christopher's judgment and parenting skills.

After considering the evidence and testimony, the trial court denied Christopher's request for custody of Cody. The court did modify Christopher's visitation arrangement, allowing alternating over-night Wednesday visitation and rotating two-week visitation for the first eight weeks of the summer and alternating one-week visitation for the remainder of the summer. The court also minimally altered the holiday schedule. For purposes of resolving the communication disputes that existed between the parties, the court appointed a parenting coordinator for a one-year term.

In an oral ruling, the trial court noted as follows:

In looking at the case law what has to be proven before I even get to make that determination, a material change of facts and then the purposed [sic] change would be in the best interest of the child. I think there has been a change of facts in that Mr. Coleman has now remarried. I don't think that's material facts to change the custody decree, but I do think, in my opinion, Mr. Coleman has got his life together much better now than it was six years ago. So I think — could be iffy but I think it's enough to say that there has been a change of facts.

But the big burden is that the proposed modification is in the best interest of the child. I've gone back to the statute several times, and Dr. McCormick's report goes down the original statute factors and analyzes them, and does a good job of that I think. But the one that stands out that glares to me is that the Grandparents, although the problems are there, have done from what I see here in the court...