Masters v. Masters

• Decision Date: 05 April 2000
• Docket Number: No. 33,438-CA.,33,438-CA.
• Citation: 756 So.2d 1196
• Parties: Christy Dyan Lowe MASTERS, Plaintiff-Appellant, v. Jimmy Dwayne MASTERS, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

756 So.2d 1196

Christy Dyan Lowe MASTERS, Plaintiff-Appellant, v. Jimmy Dwayne MASTERS, Defendant-Appellee.

No. 33,438-CA.

Court of Appeal of Louisiana, Second Circuit.

April 5, 2000.

Bobby L. Culpepper, Jonesboro, Jeffrey Lee DeMent, West Monroe, Counsel for Appellant.

Paul Henry Kidd, Jr., Monroe, Counsel for Appellee.

Before WILLIAMS, CARAWAY and DREW, JJ.

WILLIAMS, Judge.

The plaintiff, Christy Dyan Lowe Masters, appeals the trial court's judgment which modified a prior custody decree and designated the defendant, Jimmy Dwayne Masters, as primary domiciliary custodian of the parties' minor child. For the following reasons, we reverse the trial court's ruling.

FACTS AND PROCEDURAL HISTORY

Christy Dyan Lowe Masters ("Christy") and Jimmy Dwayne Masters ("Dwayne") were married on October 26, 1992. The parties divorced on October 1, 1996. One child, Tiffany Cheyenne Masters ("Cheyenne"), was born of the marriage on February 7, 1995. By virtue of a consent decree, the parties were granted joint custody. Christy was designated primary domiciliary custodian of Cheyenne and Dwayne was awarded visitation on alternating weekends and "six weeks during the summer months of June, July and August, beginning on June 1, 1997." Dwayne was ordered to pay $344.00 per month in child support to be reduced by one-half during his summer visitations. The parties also agreed that Dwayne would maintain health insurance for the child and that they would each pay one-half of the expenses not covered under the insurance plan.

On January 22, 1997, Dwayne filed a rule for modification of the child support and custody decree. He requested a modification in the child support on the grounds that his employer went out of business and, after a period of being unemployed, he was forced to accept a new job at a lower rate of pay. He also alleged that the plaintiff changed employment and was now receiving a higher income than she was receiving at the time that the custody judgment was issued. Dwayne also requested additional visitation time, and that his mother be allowed to provide daycare for the child to alleviate any daycare expenses. On February 11, 1997, Christy filed a reconventional demand seeking sole custody of Cheyenne. She alleged that: (1) Dwayne does not use a car seat for Cheyenne; (2) Cheyenne sleeps in the same bed as the defendant and his wife during her visitations; (3) Dwayne was convicted of driving while intoxicated ("DWI") in November, 1996; and (4) Dwayne drinks and drives while Cheyenne is in the vehicle with him.

In their consent decree, the parties agreed that each shall give the other party sixty days notice before moving out of the state in order to give the other party an opportunity to return to court and seek a change in the custody plan. As a result, Christy sent a letter to Dwayne dated May 27, 1998 informing him of her proposed relocation to Atlanta, Georgia with Cheyenne and her husband, Craig Barkley. Christy explained that her husband's employer was relocating from Swartz, Louisiana to Atlanta, Georgia and that the date of their intended move was August 1, 1998. In a separate correspondence, the plaintiff forwarded an itinerary of her family's proposed summer vacations, which included a family vacation from June 12-18, 1998.

On June 5, 1998, Dwayne received Cheyenne for what Christy intended to be a weekend visitation. However, the following Sunday, Dwayne failed to return Cheyenne to her mother. According to the Dwayne, he telephoned Christy prior to June 1, 1998 and informed her that he intended to keep Cheyenne for six consecutive weeks¹ beginning June 1, 1998. On June 17, 1998, Christy located Cheyenne at the paternal grandparents' home and took the child.

Thereafter, Dwayne amended his pleadings to request sole custody of Cheyenne. He asserted that, by withholding the child until June 5, 1998 and by removing the child from his parents' home on June 17, 1998, Christy was in direct contravention of the custody decree and should be held in contempt of court. Dwayne requested an injunction prohibiting Christy from removing Cheyenne from Ouachita Parish. He also requested that the hearing on these matters, which was scheduled for August 10, 1998, be re-fixed to a date prior to the proposed relocation of the parties' minor child.

On May 21, 1999, after a hearing, the trial court modified the custody decree. Dwayne Masters was designated primary domiciliary custodian and Christy Masters was awarded specified custody/visitations. The trial court also ordered the plaintiff to pay $60.00 per month in child support. The trial court denied the plaintiff's request to permanently remove and relocate the minor child from the state. The plaintiff appeals urging four assignments of error. The defendant answers the appeal urging that the amount fixed for child support is inadequate.

DISCUSSION

Assignments of Error Nos. 1 & 2

By these assignments, the plaintiff asserts that the trial court erred by modifying the existing custody decree, designating Dwayne Masters as the primary domiciliary custodian, and by failing to afford the plaintiff the option of staying in Ouachita Parish and retaining custody of the minor child.

The paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Oglesby v. Oglesby, 25,974 (La.App.2d Cir.8/17/94), 641 So.2d 1027. In cases such as this one, where the original custody decree is a stipulated judgment and the rule of Bergeron v. Bergeron,² 492 So.2d 1193 (La.1986), is inapplicable, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, supra.

It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La.1989). However, where 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. Evans v. Lungrin, supra. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, supra.

As stated above, the party seeking a modification of a stipulated judgment of custody has the burden of proving a "material change of circumstances." In the instant case, both parties requested a modification of the existing custody agreement, in which the parties were awarded joint custody with the plaintiff designated primary domiciliary custodian.

Dwayne filed his request for modification of the custody decree on January 22, 1997 requesting additional visitation time with the child. Thereafter, he amended his pleading to request sole custody of the parties' minor child. He alleged that "circumstances have substantially changed since the issuance of the original custody decree" which would allow him to provide a stable and loving environment for the child. However, he did not elaborate on or specify any particular change in circumstance. H...