Mizell v. Stone

• Decision Date: 09 December 2015
• Docket Number: No. 15–244.,15–244.
• Parties: Rozetta MIZELL v. Juston STONE.
• Court: Court of Appeal of Louisiana — District of US

181 So.3d 842

Rozetta MIZELL
v.
Juston STONE.

No. 15–244.

Court of Appeal of Louisiana, Third Circuit.

Dec. 9, 2015.

181 So.3d 843

Michael H. Davis, Alexandria, LA, for Plaintiff/Appellant, Rozetta Mizell.

David C. Hesser, Hesser & Flynn, A Limited Liability Partnership, Alexandria, LA, for Defendant/Appellee, Juston Stone.

Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and SHANNON J. GREMILLION, Judges.

PETERS, J.

Rozetta Mizell appeals the trial court's judgment removing her as domiciliary custodian of her minor child and awarding that status to the child's father, Juston Stone. For the following reasons, we reverse

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the decision of the trial court and render judgment reinstating Ms. Mizell as the domiciliary custodian.

DISCUSSION OF THE RECORD

Ms. Mizell¹ and Mr. Stone are the parents of Teaci Trinity Berlin Stone–Mizell (hereinafter referred to as "Teaci"), who was born in Las Vegas, Nevada, on March 10, 2008. The litigation in this state began on June 22, 2012, when Ms. Mizell, who by then was living in Rapides Parish, Louisiana, filed a petition in the trial court seeking to have a judgment rendered by a court in the State of Nevada recognized and made a judgment of the trial court. In the same pleading, Ms. Mizell sought modification of the custody, support, and visitation provisions of the Nevada judgment.

Ms. Mizell filed this petition in compliance with an order of the Family Division of the Eighth Judicial District Court of Clark County, Nevada, dated June 5, 2012. The Nevada order arose from an effort by Mr. Stone to bring a rule to change custody in that court in early June of 2012. The minutes of the Nevada court dated June 5, 2012, reflect that court's dismissal of Mr. Stone's custody rule on jurisdictional grounds after finding that Ms. Mizell resided in Louisiana and that Mr. Stone resided in Georgia. The minutes reflected the following disposition of the matter:

COURT FINDS, this Court does not have JURISDICTION as neither party resides in the state of Nevada.

COURT ORDERED, Defendant shall FILE an action in the state of Louisiana or in the Child's home state within the next thirty (30) days. This case is DISMISSED with prejudice.

Ms. Mizell attached two judgments to her June 20, 2012 petition: (1) the original decree of the Family Division of the Eighth Judicial District Court of Clark County, Nevada, dated July 9, 2008, and purporting to establish the custody, support, and visitation parameters for that point in time; and (2) a July 21, 2010 order of that same Nevada court modifying the visitation schedule established in the July 9, 2008 judgment. Mr. Stone initially responded to this pleading by filing declinatory exceptions of lack of subject matter jurisdiction and lack of personal jurisdiction. In pleading his exceptions, Mr. Stone asserted that he filed a petition for change of custody in Georgia on June 13, 2012, at a time when Teaci was physically in Georgia and temporarily in his custody.

The trial court heard the exceptions on August 22, 2012, and took the issues under advisement. On October 9, 2012, the trial court issued written reasons for judgment rejecting both exceptions. In those written reasons, the trial court recognized Nevada's rejection of jurisdiction over the proceedings and rejected Mr. Stone's argument that his temporary custody of Teaci gave Georgia jurisdiction over the proceedings. The trial court executed a judgment to that effect the same day. Mr. Stone responded to the judgment by filing a motion seeking clarification of certain aspects of the trial court's judgment.

The trial court scheduled all pending matters for a pretrial conference on November 26, 2012, and during the pretrial conference, the litigants reached a stipulation pending further proceedings. The trial court reduced the stipulation to an interim consent judgment, and in doing so, made the Nevada judgments executory in

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Louisiana,² and effected an immediate modification of the support and visitation aspects of the Nevada judgment on an interim basis, with the following language:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that considering the lack of minimum contacts by Juston Stone with Louisiana that Louisiana shall not now or in the future modify child support and any such child support modification shall be sent to Georgia or the state of Juston Stone's domicile;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties, Juston Stone and Rozetta Mizell, shall have interim joint custody of the minor child, Teaci Trinity Berlin Stone–Mizell, and Rozetta Mizell shall be the interim domiciliary parent subject to the custodial periods by Juston Stone;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Juston Stone shall have his custodial periods as set forth in the prior Nevada Judgment signed July 20, 2010; The Nevada Judgment is understood to mean that school begins when the minor child starts pre-kindergarten; Juston Stone shall have the physical custody of the minor child for the Christmas school vacation from noon on December 22, 2012 until January 5, 2013 at noon;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties are to meet to exchange the minor child in Mobil [sic], Alabama;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties are to exchange and have full access to all of the school and related activities of the child;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties are to let the other parent know of the people watching the minor child;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the prior telephone communications with the minor child in the Nevada Judgment of July 19, 2012^{[3 ]} are still in effect[.]

The remainder of the interim judgment addressed discovery issues and access to individual internet passwords; and ordered the litigants, their spouses, and Teaci to undergo mental health evaluations with Dr. John Simoneaux, a Pineville, Louisiana forensic psychologist.⁴

The parties complied with the order for the mental health evaluations; and based on his interpretation of Dr. Simoneaux's written findings, Mr. Stone filed his own rule seeking to have the domiciliary custodian arrangement changed to have him named as Teaci's domiciliary custodian. The competing custody claims went to trial

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on March 28, 2014, and after completion of the evidentiary phase of the trial, the trial court took the matter under advisement. On June 13, 2014, the trial court issued written reasons for judgment, finding in favor of Mr. Stone on the custody issue. After the trial court executed a judgment on September 19, 2014, giving both parents joint custody, but naming Mr. Stone as domiciliary custodian, Ms. Mizell perfected this appeal.

OPINION

The evidentiary record establishes that at the time of Teaci's conception, Ms. Mizell and Mr. Stone were coworkers on a military base near Las Vegas, Nevada: Ms. Mizell as a member of the United States Air Force (Air Force), and Mr. Stone as a civilian consultant. Mr. Stone had previously been medically discharged from the Air Force based on a diagnosis of severe kidney stones and an Attention Deficit Hyperactivity Disorder. He then began working as a civilian consultant for the Air Force at the Nevada base.

When the sexual relationship began, Ms. Mizell was unmarried, while Mr. Stone was married to his current wife, MacKenzie Stone. However, the relationship between Ms. Mizell and Mr. Stone was not the "normal affair," where a married man becomes involved with another woman without his spouse's knowledge. Instead, in this case, Mrs. Stone not only consented to Mr. Stone's sexual relationship with Ms. Mizell, she encouraged it. After a few months, Mrs. Stone withdrew her consent to the arrangement, but Mr. Stone continued seeing Ms. Mizell behind his wife's back.

Mr. Stone's relationship with Ms. Mizell lasted for approximately six to eight months, and both Ms. Mizell and Mrs. Stone became pregnant by Mr. Stone during that time period. Mrs. Stone's child was born approximately two months after Teaci and, according to Mr. Stone, he did not tell his wife that he had continued his sexual relationship with Ms. Mizell after she withdrew her consent, or that Teaci was his biological child, until around the time that Mrs. Stone gave birth.

The July 9, 2008 Nevada consent judgment⁵ named Ms. Mizell as domiciliary custodian; set Mr. Stone's child support obligation at $400.00 per month, with reductions for periods he maintained extended custody rights; and ordered that an ultimate custody "time-share arrangement for the parties' minor child" be determined at a later date and "be as close to 50/50 as reasonably possible[.]" However, the judgment further set a very specific holiday schedule to be in effect regardless of the ultimate nature of the time-share arrangement.

The nature of the holiday schedule set by the Nevada court clearly contemplated that Ms. Mizell and Mr. Stone would live in close proximity to one another. However, Mr. Stone testified that two months before Teaci was born, he left Nevada for Tennessee. This change of...