Winzor v. Winzor

• Decision Date: 01 October 2003
• Docket Number: No. 2003-329.,2003-329.
• Citation: 856 So.2d 107
• Parties: Ramona Ann Marcantel WINZOR v. Robert Wade WINZOR.
• Court: Court of Appeal of Louisiana — District of US

856 So.2d 107

Ramona Ann Marcantel WINZOR v. Robert Wade WINZOR.

No. 2003-329.

Court of Appeal of Louisiana, Third Circuit.

October 1, 2003.

K. Ray Rush, Attorney at Law, Oakdale, LA, for Plaintiff/Appellee, Ramona Ann Marcantel Winzor.

W. Mitchell Redd, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Robert Wade Winzor.

Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.

SULLIVAN, Judge.

Robert Wade Winzor appeals the trial court's denial of his request to become the domiciliary parent of his three children. For the following reasons, we affirm.

Facts

Robert Wade Winzor (Wade) and Ramona DeBarge were previously married to each other. While married they had three children, T.A.W., born December 21, 1988; M.W.W., born December 28, 1993; and A.K.W., born January 28, 1997. The couple separated June 15, 1997, when Wade left the marital domicile in Monroe, Louisiana. Ramona, having no family in Monroe, returned to her hometown of Kinder to be near her family for support. They were divorced in October 1998. On February 8, 1999, pursuant to stipulations by the parties, a consent judgment, approving a joint custody plan, support payments, and medical expense reimbursement was signed. The custody plan provided for Wade and Ramona to share joint custody of the children with Ramona being the domiciliary parent and Wade having visitation privileges which were outlined in the plan.

In June 2002, the children went to Wade's home in Reeves for summer visitation. During that time, T.A.W. requested of Ramona that she be allowed to live with her father. While initially refusing, Ramona agreed to the request in early July. With Ramona's knowledge, Wade registered T.A.W. to attend school in Beauregard Parish. After school started, Wade asked Ramona to amend the custody plan to reflect that he was the domiciliary parent of T.A.W. Ramona refused and thereafter requested that Wade return T.A.W. to her home. At trial, Ramona testified that, prior to allowing T.A.W. to move to Wade's, she told Wade and T.A.W. that her permission was for a trial basis only. This was not disputed. On August 27, 2002, she filed a report with the Allen Parish Sheriff's Department because Wade refused to return T.A.W. to her. T.A.W. was scheduled to visit Ramona the weekend of August 30, 2002. That evening, Wade's mother and uncle brought T.A.W. to the parties' usual exchange location, but T.A.W. refused to go with Ramona. Ramona sought the assistance of the Allen Parish Sheriff's Department to obtain custody of T.A.W., but the Sheriff's Department would not remove T.A.W. from Wade's custody without a court order, and Wade would not force T.A.W. to go with Ramona. On September 5, 2002, Ramona filed a rule for contempt, and Wade filed a rule to modify the custody plan: Ramona sought to enforce the 1999 custody plan; to have the court order Wade to pay his share of the children's medical expenses; and to hold Wade in contempt, and Wade sought to amend the custody plan to designate him as domiciliary parent of the children. Wade obtained an order allowing T.A.W. to live with him until a hearing on the rules could be held. After the hearing, the trial court designated Ramona as domiciliary parent of the children and ordered that Wade reimburse her $2,556.62 in medical expenses. The trial court did not hold Wade in contempt.

When this matter was tried, T.A.W. was thirteen years old, M.W.W. was almost nine years old, and A.K.W. was five years old. T.A.W. is a bright, intelligent, normal young lady. She testified in chambers and expressed her desire to live with Wade. M.W.W. has been diagnosed as globally developmentally delayed and has slight mental retardation. He has some autistic characteristics and some anger-control problems. Teaching M.W.W. and caring for him requires much patience and persistence. A.K.W. has a serious heart defect which has required two open-heart surgeries and one closed-heart surgery. The first surgery was performed when she was four-weeks old. Her most recent surgery was during the summer of 2001. Her activities, medications, meals, and physical status must be closely monitored. Ramona testified that M.W.W. and A.K.W., especially A.K.W., missed T.A.W. while she lived with Wade.

Wade appeals only the denial of his request for change in domiciliary designation. He assigns six errors by the trial court. Five of the assigned errors relate to factors enumerated in La.Civ.Code art. 134. Specifically, he asserts that the trial court failed to consider the facts of the case as they relate to factors (1), (4) and (9), (5), (10), and (12). His last assignment is that the trial court erred in finding that the best interest of the children is served by living together. In the alternative, Wade seeks custody of T.A.W. individually.

Law and Discussion

On appeal, a trial court's ruling on a change of custody request may only be disturbed if the reviewing court determines that the trial court abused its discretion in making its ruling. In addition, a reviewing court may set aside the trial court's finding of fact only upon determining that the trial court was manifestly erroneous or clearly wrong. The issue is whether the trial court's conclusion was reasonable in light of the entire record.

Hillman v. Davis, 02-685, pp. 5-6 (La. App. 3 Cir. 12/11/02), 834 So.2d 594, 598 (citations omitted).

A party seeking to modify a custody decree which was a stipulated judgment 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, 97-541, 97-577, p. 13 (La.2/6/98), 708 So.2d 731, 738. If the original custody decree is a considered decree, i.e., one for which the trial court received evidence of parental fitness, the party seeking a modification must prove that continuation of the present situation is "so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child." Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

Because the Winzors' custody decree is a consent judgment, Wade does not have to meet the heavier burden of Bergeron. He must, however, prove both prongs of the Evans standard, i.e., that a material change in circumstances has occurred since the entry of the consent judgment and that his proposed modification is in the children's best interest.

Material Change in Circumstances

The trial court performed only a best-interest analysis under La.Civ.Code art. 134; it did not make a specific finding of a material change in circumstances. Therefore, we must determine de novo whether a material change in circumstances that triggers a best-interest analysis under Article 134 has occurred. When Wade and Ramona separated, they lived in Monroe where Wade was working for the Union Pacific Railroad. After the separation, in an effort to move closer to the children, Wade arranged new work assignments and relocations with his employer. Eventually, he achieved his goal and was assigned to the Lake Charles area. He currently lives in DeQuincy, which is relatively close to Kinder, where the children live with Ramona, and is much more involved in the children's lives than he was previously. He and Ramona have both remarried.

Wade has established that there has been a material change in circumstances of the parties and the children and will now address his assignments of error regarding the trial court's consideration and analysis of the Article 134 factors.

Best Interest of the Children

In its analysis, the trial court considered Wade's involvement and presence in the children's lives and his financial support of them; the stability of Ramona's presence in the lives of the children and their living arrangements; M.W.W.'s mental limitations and educational needs; A.K.W.'s health problems; T.A.W.'s desire to live with Wade; the desires of M.W.W. and A.K.W. for T.A.W. to continue living with them; and the best interest of all three children. The trial court did not, however, correlate each factor that it discussed with an Article 134 factor, but it is not required to do so.

In Weaver v. Weaver, 01-1656, p. 5 (La.App. 3 Cir. 5/29/02), 824 So.2d 438, 442, this court observed that "[t]he factors under Article 134, are just that—a series of guidelines the trial court may use in determining which parent can better provide for the best interests of the child." When determining the best interest of the children, the trial court must weigh and balance factors favoring or opposing custody on the basis of the evidence presented in each case. McKinley v. McKinley, 25,365 (La.App. 2 Cir. 1/19/94), 631 So.2d 45. The weight to be given each factor is left to the discretion of the trial court. Jones v. Rodrigue, 00-899, 00-900 (La.App. 1 Cir. 11/3/00), 771 So.2d 275.

The trial court's consideration of these factors were in favor of Ramona, except on the issue of housing, which it determined was equal.

Assignment of Error Number 1

Wade's first assignment of error is that the trial court failed to consider the facts presented as they relate to factor (3) of Article 134 which provides:

The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

The trial court determined that Ramona has provided most of the support to the children with Wade contributing only a small part of assistance to her. In its discussion, the trial court referenced "occasional visits" by Wade from 1998 until 2000. Wade takes issue with this statement contending that he saw the children monthly during that time and that Ramona's relocation to Kinder from Monroe contributed to his infrequent visits. Ramona testified that Wade did not see...