Joubert v. Joubert

• Citation: 285 So.3d 7
• Decision Date: 13 November 2019
• Docket Number: 19-349
• Parties: Cornell Mark JOUBERT v. Francesca Antoinette Stewart JOUBERT
• Court: Court of Appeal of Louisiana (US)

285 So.3d 7

Cornell Mark JOUBERT

v.Francesca Antoinette Stewart JOUBERT

19-349

Court of Appeal of Louisiana, Third Circuit.

November 13, 2019

Frank Granger, 1135 Lakeshore Drive, 6th Floor Lake Charles, LA 70601 (337)-439-2732, Counsel for Plaintiff/Appellant: Cornell Mark Joubert

B. Thomas Shea, Tom Shea Family Law, L.L.C., 1 Lakeshore Dr., Suite 1720], Lake Charles, LA 70629, (337)-564-4148, Counsel for Appellee: Francesca Antoinette Stewart Joubert

Court composed of John D. Saunders, Phyllis M. Keaty, and Jonathan W. Perry, Judges.

PERRY, Judge.

This case addresses the question of whether the mother of two minor children showed a material change in circumstances to upset a prior consent judgment that had established custody and visitation. For the following reasons, we amend and affirm, and remand to the trial court with instructions.

FACTS AND PROCEDURAL HISTORY

Cornell and Francesca Joubert were married on May 23, 1998. The parties have two minor sons, J. B. born on October 17, 2003, and C. J. born on December 31, 2008, and one major daughter, K.J. Thereafter, on December 28, 2016, Cornell, who was represented by counsel, filed for a divorce pursuant to La.Civ.Code art. 103. Although Francesca was not represented by counsel, she participated in the preparation of the divorce petition, property settlement, child custody, and child support agreement in which Francesca agreed to pay Cornell child support of $1,700.00 a month.¹ These items were memorialized on December 28, 2016, in a stipulated judgment which, among other matters, indicated their agreement that the parties would have joint custody of the minor children. As reflected in the Joint Custody Plan that the parties implemented, the parties adopted the following visitation provisions:

1. The primary domicile shall be at the residence of CORNELL MARK JOUBERT , who is designated as the domiciliary parent.

2. The parties shall have the children in their care as follows:

a. Standard Visitation: Reasonable with the parties to work out the details on their own, and with the parties to take into consideration the age of the children and their activities and the like.

b. Summer Visitation: Reasonable with the parties to work out the details on their own, and with the parties to take into consideration the age of the children and their activities and the like. They will be flexible with each other on vacation plans.

c. Holiday Visitation: Reasonable with the parties to work out the details on their own, and with the parties to take into consideration the age of the children and their activities and the like. The parties will work with each other to continue the children's involvement in family customs and traditions.

On May 30, 2017, Francesca filed a rule to modify custody, seeking to outline a specific access schedule which is in line with a 50/50 shared custody schedule. As justification for her modification request, Francesca outlined the following three material changes in circumstances: (a) Cornell has not allowed her to have reasonable access; (b) Francesca has made multiple pleas for more access but Cornell has refused such; and (c) Cornell's work schedule makes it more difficult for him to spend as much time with the minor sons as Francesca's work schedule allows.

After conducting a two-day trial on July 26, 2018, and October 18, 2018, the trial court: (1) determined that because the parties' original judgment on custody and visitation was a consent judgment, the heavy burden outlined in Bergeron v. Bergeron , 492 So.2d 1193 (La.1986), was inapplicable; thus, the moving party only had to show a material change in circumstances since the original decree and that the proposed modification was in the best interest of the children; (2) found the following showed a material change in circumstances: (a) the parties were never able to agree on a visitation schedule; (b) Cornell imposed a plan that he determined was reasonable; and (c) the parties were unable to agree on a plan so that each would share equal time with the boys. After thoroughly reviewing the twelve best interest factors outlined in La.Civ.Code art. 134, the trial court granted Francesca's motion to modify custody, awarded them joint custody, named Cornell the domiciliary parent, and granted visitation according to a joint custody plan.

Cornell appeals, contending: (1) the trial court erred when it found Francesca proved a material change of circumstances and by using the best interest of the children factors in La.Civ.Code art. 134 as a framework to satisfy the material change of circumstances analysis requirement in a child custody modification action; and (2) its findings of fact were manifestly erroneous and clearly wrong by failing to consider all of the facts proven at trial in analyzing the best interest factors to modify the previous stipulated custodial visitation agreement between Cornell and Francesca.

STANDARD OF REVIEW

The trial court's factual conclusions are given substantial deference by appellate courts in child custody matters. Steinebach v. Steinebach , 07-38 (La.App. 3 Cir. 5/2/07), 957 So.2d 291. Unless there is a legal error, "[t]he determinations made by the trial judge as to custody ... will not be set aside unless it clearly appears [from the record] that there has been an abuse of discretion[.] " Nugent v. Nugent , 232 So.2d 521, 523 (La.App. 3 Cir.1970) ; see also Mulkey v. Mulkey , 12-2709 (La. 5/7/13), 118 So.3d 357. "The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts." McCorvey v. McCorvey , 05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 362, writ denied , 05-2577 (La. 5/5/06), 927 So.2d 300.

Absent legal error, appellate courts must "review the record in its entirety and (1) find that a reasonable basis does not exist for the finding, and (2) further determine that the record clearly establishes that the fact finder is clearly wrong or manifestly erroneous" before a court's factual findings and conclusions can be reversed. Moss v. Goodger , 12-783, p. 5 (La.App. 3 Cir. 12/12/12), 104 So.3d 807, 810. If the trial court's findings of fact are reasonable, appellate courts should not reverse them. Id . However, appellate courts are also prohibited from simply rubberstamping a trial court's findings of fact. Id. Instead, we are constitutionally mandated to review all the facts contained in the record and determine whether the trial court's findings are reasonable considering the entire record. Id.

Additionally, when a trial court applies incorrect legal principles and these errors materially affect the outcome of a case and deprive a party of substantial rights, legal error occurs. Evans v. Lungrin , 97-541, 97-577 (La. 2/6/98), 708 So.2d 731. "[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence." Id. at 735.

MATERIAL CHANGE IN CIRCUMSTANCES

From the outset, Cornell asserts the trial court legally erred when it relied on the factors of La.Civ.Code art. 134 to determine if Francesca proved a material change of circumstances occurred. In support of his contentions, Cornell draws our attention to these words in the trial court's written reasons for judgment, "Using [the factors of La.Civ.Code art. 134 ] as a framework for analysis, the Court will now determine if a material change in circumstances has occurred and if the proposed modification is in the best interest of [the minor sons]."

It cannot be denied the trial court included those words in its written reasons for judgment. Nevertheless, it is likewise clear that those words are immediately followed by a section entitled "Material Change in Circumstances" and no reference to the factors of La.Civ.Code art. 134 is mentioned. Contrary to Cornell's assertion that the trial court relied upon the factors enunciated in La.Civ.Code art. 134 in the determination of the question of whether Francesca established a material change in circumstances, the trial court's written reasons demonstrate just the opposite. It was only after the trial court determined that a material change in circumstances existed that it stated that it "will now address the best interest factors set forth in La.Civ.Code art. 134 to determine what custody arrangement is in the best interest of Joshua and Caleb." Having found no legal error in the trial court's analysis of this threshold element, we will now examine Cornell's assertion that the trial court erred when it found that Francesca established that there was a material change in circumstance that negatively impacted the welfare of the two minor children.

The time parents with joint legal custody share with their children is a physical custody allocation of a joint custody plan. Cedotal v. Cedotal , 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433. In an action to modify a custody decree, the trial court must first determine whether the decree is a considered decree or a consent decree. See Moss, 104 So.3d 807. "A consent judgment is a bilateral contract[.]" Burns v. Burns, 17-343, p. 6 (La.App. 1 Cir. 11/3/17), 236 So.3d 571, 575. When the underlying decree is a stipulated judgment (i.e., no evidence of parental fitness was taken by the court), the moving party has the burden of proving that a material change in circumstances has occurred since rendition of the underlying decree, and that the modification will be in the child's best interest. See Evans , 708 So.2d 731. Elaborating on this twofold burden of proof, this court stated in Prather v. McLaughlin , 16-604, p. 5 (La.App. 3 Cir. 11/2/16), 207 So.3d 581, 585 :

However, in order to achieve stability and avoid continuous

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