Underwood v. Underwood
| Decision Date | 21 October 2021 |
| Docket Number | 2021 CU 0277 |
| Citation | 332 So.3d 128 |
| Parties | Jason M. UNDERWOOD v. Leigh A. UNDERWOOD |
| Court | Court of Appeal of Louisiana — District of US |
Erik R. Noland, Felix A. Dejean, III, Baton Rouge, Louisiana, Counsel for Appellee Plaintiff—Jason M. Underwood
Namisha D. Patel, Roy H. Maughan, Jr., Joshua D. Roy, Baton Rouge, Louisiana, Counsel for Appellant Defendant—Leigh A. Underwood
Before: McClendon, Welch, and Theriot, JJ.
In this contentious child custody proceeding, Leigh A. Underwood (now "Texada"1 ) appeals a judgment that, among other things, modified the joint custodial arrangement between her and Jason M. Underwood by dividing the domiciliary parent decision-making authority between them, determined child support and related expenses, and found Mrs. Texada in contempt of court. For reasons that follow, we amend the judgment of the trial court, and, as amended, the judgment is affirmed.
Mrs. Texada and Mr. Underwood were married on December 17, 2011, and they had one child during their marriage, J.M.U., Jr. On June 23, 2013, when the child was approximately 9 ½ months old, the parties separated; four days later, June 27, 2013, Mr. Underwood filed a petition for divorce. Since that time, there has been extensive litigation between the parties concerning child custody, including matters incidental to child custody, which has resulted in the rendition of several interim judgments, three considered decrees/judgments, and one stipulated judgment. At issue in this appeal is the third considered decree, which was the result of several original, supplemental, and amended pleadings filed by the parties and five days of trial. In order to understand the factual and procedural posture of this appeal, it is necessary to review the relevant prior litigation over custody and related matters and the resulting judgments.
Shortly after the divorce proceedings commenced and after a hearing, the trial court issued an interim judgment on November 26, 2013, setting Mr. Underwood's monthly child support obligation at $400.00; awarding the parties joint custody of the child; designating Mrs. Texada as the domiciliary parent; awarding Mr. Underwood physical custody of the child every other weekend from Friday at 6 p.m. until Sunday at 6 p.m., every other Wednesday from 5 p.m. until Friday morning when the child was brought to child care, and every Tuesday evening from 5 p.m. until 8 p.m.; and ordering the parties to enroll in and utilize Our Family Wizard as their primary source for communication.2
Thereafter, a two-day trial on the issue of custody was held, resulting in a judgment that was signed by the trial court on August 8, 2014 (sometimes referred to as "the first considered decree"). This judgment granted the parties joint custody of the child, named Mrs. Texada as the domiciliary parent, and awarded the parties equal physical custody of the child on an alternating 2-day, 2-day, 3-day basis, with each party's 3-day period falling on the weekend. The trial court granted the parties the "right of first refusal" of three hours, in that if either party was not able to be with the child for a period in excess of three hours during their scheduled custodial time, even if the absence was due to work, then he/she was to offer to the other parent the right to keep the child during that period of time. The trial court specifically allowed Mr. Underwood's father to pick the child up at the start of Mr. Underwood's custodial time. The trial court also ordered the parties to communicate with each other on a reasonable and regular basis, to engage in at least four sessions with a parenting coordinator, and to continue to use Our Family Wizard to communicate with each other regarding the child. In this judgment, the trial court also ordered Mr. Underwood to pay child support in the amount of $128.19 per month, ordered Mrs. Texada to maintain the child on a policy of health insurance, and ordered that the child's extraordinary medical expenses be allocated 53.69% to Mrs. Texada and 46.31% to Mr. Underwood.
Shortly thereafter, Mrs. Texada sought a modification of the first considered decree, i.e. a reduction in Mr. Underwood's periods of physical custody and a recalculation of the child support obligation. Mr. Underwood responded with a request for Mrs. Texada to be held in contempt of court due to several alleged violations of the first considered decree, such as her refusal to allow Mr. Underwood's father to pick up the child at the start of Mr. Underwood's custodial time. After a three-day trial, the trial court signed a judgment on November 10, 2015 (sometimes referred to as "the second considered decree"). Therein, the trial court specifically denied Mrs. Texada's request for a modification of custody/decrease in Mr. Underwood's physical custodial time and maintained the award of joint custody to the parties, the designation of Mrs. Texada as the domiciliary parent, and the 2-day, 2-day, 3-day equal physical custody schedule. The trial court changed the 3-hour right of first refusal set forth in the first considered decree to a 4-hour right of first refusal and further "require[d] the parties to exercise flexibility in the custodial schedule so that the minor child [was] not deprived of time with either parent." The trial court ordered the parties to continue to use Our Family Wizard to communicate with each other and to turn on all functions of that system and appointed Leslie Todd as the parenting coordinator for the parties.
In addition, retroactive to October 2, 2014, the trial court ordered Mrs. Texada to pay child support to Mr. Underwood in the amount of $136.42 and terminated Mr. Underwood's obligation to pay child support to Mrs. Texada. The trial court further ordered that Mrs. Texada was to maintain health insurance on the child and that Mrs. Texada would be responsible for 61.48% and Mr. Underwood responsible for 38.52% of the child's extraordinary medical and other expenses. The trial court found Mrs. Texada in contempt of court for failing to allow Mr. Underwood's father to pick up the child as provided in the previous judgment and ordered her to pay attorney fees.
The trial court specifically ordered that there be no negative communication between the parties and that the parent who did not have physical custody be allowed to talk to the child by telephone, with the party having physical custody of the child being required to answer the telephone and to tell the child that the other parent was on the telephone.
Mrs. Texada subsequently filed a rule for contempt, alleging that Mr. Underwood violated various provisions of the second considered decree. Mr. Underwood responded with rules for contempt, alleging that Mrs. Texada was in arrears in her child support obligation and that she had also violated various provisions of the second considered decree. Mrs. Texada sought a reduction in child support and amended her rule for contempt to include allegations that Mr. Underwood failed to pay his percentage share of the child's extraordinary and other expenses. Mr. Underwood then amended his rule for contempt to allege additional violations of the second considered decree by Mrs. Texada, including her failure to utilize the services of Leslie Todd, the parties’ parenting coordinator, her failure to maintain the child on a policy of health insurance, and her abuse of her title as domiciliary parent.
Based on these outstanding issues, the parties entered into a stipulated judgment, which was signed by the trial court on May 19, 2017 ("the stipulated judgment"). The stipulated judgment continued the parties’ previous joint custodial arrangement, the designation of Mrs. Texada as the domiciliary parent, and allocation of equal periods of physical custody. However, by agreement of the parties, the physical custodial schedule was changed from an alternating 2-day, 2-day, 3-day schedule to alternating on a weekly basis, i.e. Friday at 8:30 a.m. until the following Friday at 8:30 a.m. The parties agreed that for the 2017-2018 school year, the child would attend Jefferson United Methodist Preschool; thereafter, for the 2018-2019 school year, when the child entered kindergarten, the child would attend The Dunham School.
The parties also agreed that the 4-hour right of first refusal would continue until the child started kindergarten; thereafter, the right of first refusal would be changed to overnight. The parties further agreed that neither party would pay child support to the other; that each party would pay 50% of the child's school tuition (registration, tuition, fees, and other school-related expenses), unpaid extraordinary medical/dental expenses not covered by insurance, and extracurricular activities; and that Mrs. Texada would maintain the child on a policy of health insurance. The parties agreed to dismiss all pending motions before the trial court, and that neither party owed the other any outstanding child support and/or reimbursement of expenses related to the child as of May 5, 2017. Lastly, the stipulated judgment provided that any previous orders not in conflict with the terms of the stipulated judgment would remain in full force and effect.
Approximately nine months after the stipulated judgment, on February 27, 2018, Mrs. Texada sought to modify custody again by decreasing Mr. Underwood's physical custodial time from alternating weeks to every other weekend, as well as another rule for contempt. Therein, Mrs. Texada alleged that a modification of the custodial arrangement was warranted because she had remarried, had stable part-time employment and a stable home, allowing her to more fully provide for the temporal, emotional, spiritual, and physical needs of the child, including but not limited to food, shelter, education, clothing, medical care, education, and other material...
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