Moss v. Goodger

• Decision Date: 12 December 2012
• Docket Number: No. 12–783.,12–783.
• Citation: 104 So.3d 807
• Parties: Carolyn L. MOSS v. George A. GOODGER.
• Court: Court of Appeal of Louisiana — District of US

104 So.3d 807

Carolyn L. MOSS

v.George A. GOODGER.

No. 12–783.

Court of Appeal of Louisiana,Third Circuit.

Dec. 12, 2012.

Gregory Norman Wampler, Lemoine & Wampler, Pineville, LA, for Plaintiff/Appellee, Carolyn L. Moss.

Brian K. Thompson, Law Offices of Brian K. Thompson, A.P.L.C., Alexandria, LA, for Defendant/Appellant, George A. Goodger.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.

THIBODEAUX, Chief Judge.

[3 Cir. 1]In this contentious custody dispute, George Goodger contests the trial court's judgment of primary, domiciliary custody of thirteen-year-old Hoyt to his former partner, Carolyn Moss. Mr. Goodger asserts that Ms. Moss is volatile and emotionally unstable and that the trial court's judgment in Ms. Moss' favor, following an evaluation of La.Civ.Code art. 134, was an abuse of discretion. For the following reasons, we agree with Mr. Goodger and reverse the judgment of the trial court.

I.ISSUES

We will consider whether the trial court abused its discretion in awarding primary, domiciliary custody of Hoyt to Ms. Moss.

II.FACTS AND PROCEDURAL HISTORY

Mr. Goodger and Ms. Moss never married but lived together for many years. The parties had one child together, Hoyt Goodger, who was born on March 26, 1999. At the end of their relationship,¹ the parties reached a verbal agreement regarding child custody and support that was neither filed with, nor sanctioned by, the court. The parties agreed to joint custody of Hoyt, with Ms. Moss designated as the domiciliary parent, subject to reasonable visitation by Mr. Goodger. The parties agreed that Mr. Goodger would pay Ms. Moss $215.00 per month in support of Hoyt.

Both the financial agreement and the custody agreement proved unworkable by the parties. Notably, Ms. Moss repeatedly requested extra money [3 Cir. 2]from Mr. Goodger, and Ms. Moss testified that the utilities at her home were disconnected more than once because she forgot to pay the utility bill. Mr. Goodger testified that Ms. Moss complained of receiving eviction notices and of not having enough food for Hoyt. The parties' relationship became more strained upon the marriage of Mr. Goodger to his wife, Stacy. Ms. Moss expressed outward hostility toward Stacy and frequently referred to her as a “crack whore.”

Mr. Goodger testified regarding several incidents where Ms. Moss displayed hostility toward himself, Stacy, and Hoyt. He described an incident where Ms. Moss pointed a gun at him and Stacy. Ms. Moss received probation following that incident. He also testified that Ms. Moss yelled and cursed at Hoyt on several different occasions.

Following an occurrence at a ballpark, Mr. Goodger enlisted the services of Mary Girard, a licensed professional counselor, to assist Hoyt in handling his mother's emotional outbursts. Ms. Girard testified that she was concerned about Hoyt's emotional well-being due to his mother's mood swings and irrational behaviors. Ms. Girard noted that Hoyt was “hurt and scared about conflicts that he would witness” between the parties, and she recommended that a mental health professional evaluate Ms. Moss.

Shortly after Hoyt began counseling sessions with Ms. Girard, Mr. Goodger filed a rule to modify the custody agreement between the parties so as to designate him as the domiciliary parent, subject to visitation by Ms. Moss. Mr. Goodger also requested an order requiring Ms. Moss to pay him monthly child support in accordance with the income of the parties.

Ms. Moss filed a counter-rule, alleging that Mr. Goodger was not entitled to custody or joint custody due to his history of perpetrating family violence. Throughout the trial court proceedings, Ms. Moss did not offer any evidence of this alleged violence. She sought sole custody of Hoyt, with only [3 Cir. 3]restricted or supervised visitation rights for Mr. Goodger. She also sought child support.

On June 21, 2011, the parties reached an agreement which was contained in an Interim Order signed by the trial court. The Interim Order granted the parties shared custody of Hoyt on an alternating one-week basis. It also required the parties to submit to mental health evaluations that would assist the court in the determination of custody. Moreover, the Interim Order required Mr. and Mrs. Goodger, Ms. Moss, and Ms. Moss' boyfriend, Greg Delaney, to undergo drug testing. The Interim Order also contained various other requirements that prohibited the parties from: (a) interfering with visitation and communication between Hoyt and the other party; (b) communicating with each other through Hoyt; and (c) pressuring Hoyt or placing him in the middle of the proceedings.

On November 2, 2011, Mr. Goodger filed a Rule for Contempt and Other Relief seeking to hold Ms. Moss in contempt for refusing to submit to a mental health evaluation, for preventing all communication between Hoyt and Mr. Goodger during Ms. Moss' visitation with Hoyt on certain dates, and for calling law enforcement authorities unnecessarily to interfere with Mr. Goodger's visitation with Hoyt.

At the conclusion of the hearing on the Rule, the trial court held that the previously ordered psychological evaluations of the parties were unnecessary. The trial court held Ms. Moss in contempt for her “willful disobedience” of the Interim Order by failing to transfer Hoyt at the time ordered and by interfering with the telephone communications between Hoyt and his father. The trial court stated that it would take Ms. Moss' contempt into consideration when determining the parties' ability to facilitate a relationship between the child and the other parent.

[3 Cir. 4]Following a hearing on Mr. Goodger's Rule for Modification of Custody and Other Relief, the trial court denied Mr. Goodger's request to be designated as the primary, domiciliary parent. It cited the best interest of Hoyt as its primary reason. The trial court maintained joint custody and Ms. Moss' designation as the primary, domiciliary parent of Hoyt subject to specified visitation rights of Mr. Goodger.

III.LAW AND DISCUSSION

Standard of Review

The trial court is in the best position to ascertain the best interest of the child which is the paramount consideration in determining child custody. La.Civ.Code art. 131; Evans v. Lungrin, 97–541 (La.2/6/98), 708 So.2d 731. Accordingly, the trial court's determination regarding child custody is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Aucoin v. Aucoin, 02–756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245. A trial court's determination of a child's best interest is usually based heavily on factual findings. Henry v. Henry, 08–689 (La.App. 1 Cir. 9/23/08), 995 So.2d 643. It is well settled that an appellate court cannot set aside a trial court's factual findings in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual 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. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993). If the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced it would have weighed the evidence differently had it been the trier of fact. [3 Cir. 5]Rosell, 549 So.2d at 844. An appellate court, however, is not compelled to slavishly rubberstamp a trial court's finding. See, Butler v. Zapata Haynie Corp., 92–71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274,writ granted in part, judgment amended by,94–1171 (La.7/5/94), 639 So.2d 1186,cert. denied,513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994). Indeed, an appellate court is constitutionally mandated to review facts. Ambrose v. New Orleans Police Dep't Ambulance Serv., 93–3099 (La.7/5/94), 639 So.2d 216.

Discussion

Modification of Child Custody

Mr. Goodger asserts that the trial court abused its discretion by awarding primary, domiciliary custody of Hoyt to Ms. Moss. We agree.

The nature of the original custody award dictates the burden of proof a party has when seeking to modify a prior permanent custody award. When the original custody decree is a stipulated or consensual judgment, any party seeking the modification of custody must prove that there has been a material change in circumstances since the original decree, as well as prove that the proposed modification is in the best interest of the child. Aucoin, 834 So.2d 1245.

The parties in this case were subject to a stipulated joint custody decree, and Mr. Goodger requested a modification of custody. Specifically, he requested that the court designate him as the primary, domiciliary parent of Hoyt, subject to reasonable visitation by Ms. Moss. Thus, the burden of proof to change the consensual agreement regarding Hoyt's physical custody fell on Mr. Goodger to show that (1) there had been a material change in circumstances affecting Hoyt's welfare since the original decree was entered and (2) his particular proposed modification was in Hoyt's best interest.

We find that that Mr. Goodger properly met his burden in seeking a modification of custody. Mr. Goodger showed that Ms. Moss failed to [3 Cir. 6]comply with the custody agreement, and he produced evidence that his modification would be in Hoyt's best interest.

The primary consideration in our analysis of a child custody determination is always the best interest of the child. La.Civ.Code art. 131. To determine the best interest of the child for a feasible sharing arrangement under La.R.S. 9:335(A)(2)(b), the trial court must weigh twelve nonexclusive factors that are enumerated in La.Civ.Code art. 134:

(1) The love, affection, and other emotional ties between...