Melvin v. Miller

• Decision Date: 09 December 2015
• Docket Number: No. 15–599.,15–599.
• Citation: 181 So.3d 826
• Parties: Marvis MELVIN v. Kimberly MILLER
• Court: Court of Appeal of Louisiana — District of US

181 So.3d 826

Marvis MELVIN

v.Kimberly MILLER

No. 15–599.

Court of Appeal of Louisiana, Third Circuit.

Dec. 9, 2015.

Elvin C. Fontenot, Jr., Leesville, LA, for Defendant/Appellant, Kimberly Miller.

Marvis Melvin, DeRidder, LA, In Proper Person.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY and BILLY H. EZELL, Judges.

PETERS, Judge.

Kimberly Miller appeals a trial court judgment on rule addressing her attempt to relocate herself and her child, Marvis Melvin, Jr., from DeRidder, Louisiana, in Beauregard Parish, to Hammond, Louisiana, in Tangipahoa Parish, and setting the parameters of custody and visitation depending on Ms. Miller's response to the particulars of the judgment. For the foregoing reasons, we reverse the trial court's judgment; render judgment rejecting the request of Marvis Melvin¹ to be named temporary custodial parent, pending a trial on the merits of his petition; render judgment reinstating the custodial terms of the June 18, 2012 consent judgment; and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

Kimberly Miller and Marvis Melvin were formerly husband and wife, and while both had children of previous marriages, only one child was born of their marriage, Marvis Melvin, Jr. (hereinafter referred to as "Marvis Jr."), born on June 20, 2005.² After their marriage dissolved, the litigants entered into a consent custody and child support decree on June 18, 2012, wherein both parents were granted joint custody, with Ms. Miller being named as domiciliary parent. The terms of this judgment concerning custody and support were apparently carried through in the January 7, 2013 divorce decree, although neither the consent decree nor the divorce decree are in the record before us. According to Mr. Melvin's August 6, 2014 petition, which is the pleading giving rise to the current phase of this litigation, the consent decree provided that:

Kimberly Miller and Marvis Melvin were awarded joint custody of Marvis Melvin, Jr., with Kimberly Miller being designated primary domiciliary parent.

Furthermore, Marvis Melvin was allowed custody of Marvis Melvin, Jr. on alternating weekends, alternating holidays, and other times during the summer as agreed to by the parties.

The custody arrangement apparently functioned without significant problems until after Ms. Miller's remarriage on May 5, 2014. Ms. Miller's new husband, Greg Brumfield, Sr., previously resided in Beauregard Parish, but by the time of the marriage, had moved into an apartment in Baton Rouge, Louisiana in East Baton Rouge Parish.³ In early June of 2014, Ms. Miller and her children, including Marvis Jr., moved into her new husband's apartment in Baton Rouge. Ms. Miller did not provide Mr. Melvin with written notice of her intent to relocate to Baton Rouge before making the move. By late summer, the newly-married couple had decided to seek a family home in Hammond, Louisiana. That move ultimately occurred, and Marvis Jr. enrolled in a Hammond school on August 11, 2014. The family completed the move to Hammond on September 29, 2014. Thus, at the time of the hearing in this matter, Marvis Jr. was attending school in Hammond.

Mr. Melvin exercised custodial visitation rights to Marvis Jr. during the entire summer of 2014, and days after he returned the child to his mother in early August, Mr. Melvin instituted the suit now before us. The initial filing occurred on August 6, 2014, when Mr. Melvin, in proper person, filed a petition in Beauregard Parish seeking to be named Marvis Jr.'s domiciliary custodian. He asserted that his former wife's move to Baton Rouge constituted a change of circumstances affecting Marvis Jr.'s welfare and that it was in the child's best interest to name him as domiciliary custodian. However, he did not raise as an issue Ms. Miller's failure to notify him of the move to Baton Rouge or to Hammond. In his petition, Mr. Melvin also requested that Ms. Miller be ordered to show cause why "an interim custody judgment should not be rendered pending a trial in this matter." However, he did not file a rule pursuant to La.Code Civ.P. art. 2592(8) which would have allowed him to proceed and quickly address the merits of his claims. Instead, Mr. Melvin filed a petition which requires a response from the opposing counsel or the entering of a preliminary default to move the principal issue forward.

The trial court initially set Mr. Melvin's rule for interim relief on September 15, 2014, or slightly over a month after the petition filing date. The trial court minutes of September 15, 2014, reflect that both Mr. Melvin and Ms. Miller appeared in court without counsel and stated to the trial court that "they are unable to reach an agreement and would like to have the matter set for trial." The trial court "refixe[d] the matter for November 5, 2014 [;]" ordered that the litigants submit to counseling with a mediator; and "encourage[d] the parties to seek legal counsel." Given the fact that the September 15, 2014 setting was on Mr. Melvin's rule for interim custody, and the fact that Ms. Miller had yet to join issue with Mr. Melvin's petition by filing an answer, the action by the trial court can only be interpreted as a rescheduling of the rule for interim custody and not a setting of the trial on the merits.

Less than a month later, on October 8, 2014, the trial court executed an ex parte order moving the hearing up two days, to November 3, 2014. However, the hearing on the rule did not take place on November 3, 2014. The trial court minutes of that day reflect that Ms. Miller appeared with counsel and Mr. Melvin appeared again without counsel. The parties informed the court that they still had not reached an agreement, and the trial court minutes reflect that the trial court responded by stating that it "would like to consider the position and the desires of the child[.]" The trial court then rescheduled the hearing for November 12, 2014, and ordered that Marvis Jr. be present on that day. The trial court also ordered that Marvis Jr. undergo counseling before the hearing.

The rule on interim custody finally went to trial on November 12, 2014, with Ms. Miller being represented by counsel and Mr. Melvin still representing himself. Although at first glance, one might interpret the proceeding as a trial on the merits, at the time of the hearing on the rule Ms. Miller had yet to answer the original petition orally or in writing and, therefore, the matter could not be heard as a trial on the merits. See La.Code Civ.P. art. 1571(A)(2). Additionally, no preliminary default had been entered against Ms. Miller and Mr. Melvin had not amended his original petition to assert any additional basis for relief.

Despite the complete absence in Mr. Melvin's pleadings of any reference to Ms. Miller's failure to comply with any written notice requirements when she moved to Baton Rouge or Hammond, the trial court began the trial on the rule by stating: "This was styled as a petition to modify custody; but in reality, the first issue is the objection to the relocation, which Ms. Miller has actually moved without permission of the court; and, so, the burden is on her to establish that the relocation should be granted." Thus, acting without any request from Mr. Melvin to do so, the trial court converted the rule for interim custody to one addressing Ms. Miller's failure to notify Mr. Melvin of her proposed relocation.

Upon the completion of the evidentiary phase of the trial on the rule, the trial court ruled against Ms. Miller, but not by awarding Mr. Melvin interim custody pending a trial on the merits, as he had requested in his petition. Instead, the trial court concluded that Ms. Miller had not carried her burden of proof by establishing that her move from Beauregard Parish was in good faith and in Marvis Jr.'s best interest. It then entered an interim judgment allowing Marvis Jr. to remain enrolled in the Hammond school he was then attending until the beginning of the 2014 Christmas holidays; ordering that Marvis Jr. become enrolled in a Beauregard Parish school in January of 2015 at the end of the holiday period; and ordering that Ms. Miller remain the domiciliary custodian unless she chose not to accompany Marvis Jr. back to Beauregard Parish in January of 2015. If she chose to remain in Hammond, the judgment provided that Marvis Jr.'s custody would then automatically transfer to Mr. Melvin.⁴ The trial court did not execute a written judgment to this effect until March 13, 2015, or two months past the deadline for transferring Marvis Jr. to a Beauregard Parish school.⁵

Ms. Miller timely perfected the appeal now before this court, and in her appeal, she asserts as her only assignment of error that the trial court erred in not permitting her to relocate with her minor child.

OPINION

As previously stated, Mr. Melvin began this phase of the litigation by petition with a request for hearing on a rule to show cause for temporary custody pending a trial on the merits of his petition. That being the case, we must treat the judgment at issue as an interim decree pending trial on the merits.

In his petition, Mr. Melvin asserted that Ms. Miller had relocated to a new environment different from that which Marvis Jr. had grown accustomed to during his nine years of life. His petition further asserts that the move would make it "more difficult for him to remain a prominent figure" in his son's life; and that his son "has expressed feelings of wanting to remain in DeRidder with his father, so he may be able to finish school with his friends." Mr. Melvin suggested that his son "is afraid of moving, and thus, has suffered from many anxiety attacks; begging his father ... to stop the process which will cause him to relocate." These pleadings establish that Mr. Melvin complains only of the effect of the relocation itself and not of Ms. Miller's failure to provide him with notice of relocation.

Because the trial court...