As a preliminary matter, we deny the Appellant's motion to stay the appeal. We have reviewed the proceedings. There is nothing pending in the underlying matter, and we find no compelling reason to grant a continuance. Appellant's motion to stay the appeal is denied.
This matter arises from a custody dispute between the mother and father of two minor children. The trial court awarded custody to the father, assigned him as domiciliary parent, and ordered the mother to pay child support. It is this judgment that the mother appeals.
The matter before us involves the custody of two minor boys, Tyler and Noah Prejean (hereinafter "Tyler" and "Noah"). The boys' parents, Dionysia Prejean (hereinafter "Dodie") and Ronald Prejean (hereinafter "Ron") married on February 24, 2001. Tyler, born on August 6, 1995, is Dodie's biological son and Ron's adopted son. Tyler became a child of the marriage through an intra-family adoption which was concluded in October 2001. Tyler's biological father is Robert Arceneaux (hereinafter "Robert"). Noah, born October 8, 2007, is a child of Dodie's and Ron's marriage. The parties physically separated in November of 2008 and divorced on February 17, 2010.
After the parties separated, Ron began dating a woman named Jeanne. Ron and Jeanne moved in together in March of 2009 and got married on February 11, 2011. Ron has been employed at Our Lady of Lourdes Hospital for fifteen years. Jeanne was a registered nurse but quit working to assist with Ron's children after the breakup of his previous marriage. Jeanne is the mother of a five-year-old daughter, Lauren, by a prior marriage. Ron and his family reside in a three bedroom, two bathroom home in Youngsville, Louisiana. Tyler and Noah share a room together and Lauren has her own bedroom.
Dodie is currently unmarried. She was initially employed at Workplace Staffing as a manager, but resigned in January 2010. Thereafter, Dodie worked at a furniture store for several months and at KATC television station for approximately two months. Since the summer of 2010, Dodie has worked at Link Staffing in Crowley, Louisiana, working weekdays. Dodie remained in the family home after the divorce. She lives on a rural thirty acre tract of land in Egan, Louisiana in a three bedroom, two bathroom trailer. Dodie's parents live on the same property in a home about fifty yards away. Dodie's grandmother also lives in a home on the same land a couple of acres away from Dodie's home.
Tyler and Noah have been attending school in Acadia Parish. At the time of trial, Tyler was a freshman at Iota High School in Iota, Louisiana and played on the football team. Noah was in third grade at Egan Elementary School in Egan, Louisiana.
On January 5, 2009, Dodie filed a petition seeking divorce and incidental relief including joint custody, her being named domiciliary parent, child support, and use of the family home. A Hearing Officer Conference was held on February 19, 2009, and recommendations were made on the incidental matters. Ron filed an objection to the hearing officer's recommendations shortly thereafter. At the request of both Dodie and Ron, the recommendations were not made a temporary judgment. Instead, Ron's counsel advised the trial court that a consent judgment would be submitted.
A stipulation was entered on October 1, 2009 giving the parties joint custody and naming Dodie the domiciliary parent. The consent decree granted Ron visitation rights on alternating weekend periods. The Stipulated Judgment contained no holiday visitation schedule, other than a provision that said such matters would be agreed upon by the parties, nor did it contain provisions regarding the exchange of the children. The parties did not submit a joint custody plan to the court.
In March of 2010, Ron filed a Rule for Change of Custody and Contempt against Dodie seeking domiciliary status, contempt of court for not allowing court ordered visitation, and for child support. Later that month, Dodie filed a Rule to Show Cause Why Child Custody Should not be Modified and sought sole decision making authority regarding the children's health. On April 29, Dodie pursued child support enforcement services from Louisiana's Department of Social Services, which instituted a Rule to Increase Child Support on May 12, 2010.
A Hearing Officer conducted a conference on the pending rules, except child support, on May 10, 2010. The only recommendation issued suggested that Ron receive visitation rights on alternating weeks during the summer. The recommendation was made a Temporary Order on May 18, 2010.
The trial court had set a hearing on the pending rules on May 25, 2010, but that hearing was continued upon a motion by Dodie's then counsel. The hearing was reset for June 22, 2010. The hearing resulted in a stipulation, where Ron and Tyler would engage in reconciliation counseling at Dodie's cost. The stipulation further provided that Noah would undergo an evaluation for autism spectrum disorders, including Asperger's Disorder, at Dodie's expense. Both parties' counsel agreed that Dodie's lawyer would prepare a judgment approved as to form and content by both parties to resolve the remaining issues, but no judgment was ever submitted. Dodie substituted counsel on August 13, 2010.
A Hearing Officer conducted a conference on the rule to increase child support on July 29, 2010. Afterwards, Ron's child support obligation was increased from $312.97 per month to $575.00 per month, plus a five percent collection fee. Ron did not object to that recommendation, and the court signed the immediate income assignment order on August 6, 2010.
On August 18, 2010, Ron filed a Motion and Order for Ex Parte Temporary Custody and a Rule for Custody and Supervised Visitation, and a Motion and Order for Drug Testing. Thereafter, the court granted Ron temporary custody of the children and ordered that Dodie's visitations be supervised by her parents, pending a hearing scheduled for September 14, 2010.
At the September 14, 2010 hearing, the court maintained Ron's temporary custody and Dodie's supervised visitation. The court removed Dodie's parents as visitation supervisors due to their behavior, and replaced them with Dodie's grandmother. The court also ordered a custody evaluation of the parties and the children.
On September 24, 2010, the parties presented an Order for Mental Health Evaluation to the court, agreeing to appoint Jennifer Moore, LPC, MS (hereinafter "Moore") to conduct a custody evaluation. Ron and Dodie also submitted a "judgment" wherein they agreed that Dodie's visitation would be supervised by Dodie's grandmother and/or would take place at the Avec Les Enfants Visitation Center in Lafayette, Louisiana, and that Noah would be evaluated by Dr. Scott Eckholdt, PhD, M.P. (hereinafter "Dr. Eckholdt") for Asperger's Disorder and ADHD. This stipulation lacked details as to how the children would be transferred between the parties and details regarding Dr. Eckholdt's evaluation. The court signed the order and judgment that same day. Dr. Eckholdt's report to the court was finalized on November 11, 2010. Moore submitted her report on January 6, 2011.
In December 2010, the parties submitted rules for contempt against each other. Ron filed a Rule for Child Support and Contempt against Dodie, alleging that her visitations had not been supervised by her grandmother. Thereafter, Dodie filed a Rule for Contempt against Ron alleging that he impeded upon her visitation privileges.
Trial was held on all pending issues on January 11, 2011, February 25, 2011, and March 14, 15, and 18, 2011. At the trial's conclusion, the court lifted the provision requiring Dodie's visitation be supervised. Further, the parties agreed that Dodie's alternating visitation would commence when she was to pick up Noah from school until Monday morning when she was to return him to school. Additionally, the parties were to alternate custody of the children on a weekly basis during the summer. The court made Ron the domiciliary parent, ordered Dodie to pay child support, and assessed costs to her. It is from this judgment that Dodie appeals.
On December 19, 2011, while the underlying judgment was on appeal but not yet lodged with this court, Dodie filed a Motion to Annul Judgment and Request for an Expedited Hearing. There, she alleged that Ron and Robert Arceneaux, Tyler's biological father, conspired to remove the children from her custody and influenced Tyler to lie in his testimony. Also on December 19, 2010, Dodie filed a Motion to Recuse, requesting that the trial judge recuse himself. Both motions were denied.
It is clearly stated by this court that the standard of review in matters involving custody is an abuse of discretion:
Stewart v. Stewart, 11-1334, p. 2 (La.App. 3 Cir. 3/7/12), ___ So.3d ___.
In her first assignment of error, Dodie argues that the trial court erred in awarding ex parte temporary sole custody of the children to Ron and limiting Dodie's visitation with Noah to supervised visits every other weekend from Saturday morning at 9:00 a.m. to Sunday afternoon at 5:00 p.m. and for failing to sanction Ron for his false and slanderous allegations against Dodie. Specifically, Dodie asserts that Ron's allegations of abuse and neglect were found invalid by the Department of Children and Family Services (hereinafter "OCS"), and that the Hearing Officer recommended that Ron's allegations be dismissed if the court were to find no merit to them. As a result, she argues, the trial court should not have awarded Ron temporary custody in August of 2010. Dodie also requests that the trial court's judgment on temporary custody and supervision be thrown out, and for the evidence to be reviewed de novo. We reject these contentions.
Ron, in his brief, argues that the Hearing Officer's report contained recommendations to the trial court and should not be dispositive of whether the trial court's judgment should be upheld. Ron points to evidence, outside of the allegations contained in the Hearing Officer's report, which supports the decision of the trial court to award Ron temporary custody and to order that Dodie's visitation be supervised. Ron asserts that Dodie decided without consulting him to reacquaint Tyler with his biological father, Robert. Ron argues that this decision and Dodie's comments and behavior caused Ron and Tyler to become estranged. Dodie admitted to inappropriately disciplining Tyler by pinching his nipples on one occasion, and on another pushing him, causing him to fall onto the bed.
In its Reasons for Ruling, the trial court stated:
The court goes on to describe Dodie's erratic and explosive behavior towards Tyler and Ron, and that Noah called Ron after locking himself in a closet due to a fight between Tyler and Dodie's father. Further, the evidence shows that Ron encouraged Tyler to try to make amends with Dodie. The evidence also shows that Dodie sometimes forbade Tyler from speaking to Ron and became angry when Robert allowed Tyler to do so. Tyler described an incident where he went to a friends's home to call Ron, Dodie found out, and she hit Tyler and started yelling at him and calling him and Ron names in the presence of Tyler's friend and the friend's mother.
After a review of the record, we reject Dodie's assignment of error. It is clear that even without considering the allegations in the OCS report, there is ample evidence to support the decision of the trial court. The evidence shows that the trial court was reasonable in its decision to award temporary custody to Ron and to order that Dodie's visitation be supervised. The trial court did not abuse its discretion in so finding.
Dodie contends that the trial court erred in finding a material change of circumstances occurred between the time of the October 1, 2009 Stipulated Judgment and the March 24, 2010 Rule for Change of Custody filed by Ron. Alternatively, the trial court erred in finding a material change of circumstances occurred between the time of the October 1, 2009 Stipulated Judgment and the August 18, 2010 Motion for Ex Parte Custody.
Modification of custody is governed by the following rules:
Winzor v. Winzor, 03-329, pp. 3-4 (La.App. 3 Cir. 10/1/03), 856 So.2d 107, 111.
Smith v. Smith, 615 So.2d 926, 931 (La.App. 1 Cir.) writ denied, 617 So.2d 916 (La.1993).
Dodie argues that "the trial court spent an inordinate amount of time on discussing events that pre-dated the October 1, 2009 Stipulated Judgment," and that the evidence that postdates the judgment can be explained by her attempts to control her out-of-control teenage son, Tyler. Also, Dodie claims that Ron and Robert conspired together to wrest custody from Dodie, by lying and influencing Tyler to lie when testifying. For these reasons, she argues, the trial court was manifestly erroneous in finding that there was a material change in circumstances that warranted a modification of custody. We reject this argument.
In regards to the evidence the court used to make its custody determination, Dodie testified that many of the problems she experienced with Tyler escalated when she quit her job in January of 2010, which occurred after the October 2009 judgment. The record indicates that other incidents occurred after the stipulated judgment was entered. Between early 2010 and March 2010, Noah related accounts of fighting between Tyler, Dodie, and Dodie's father to Ron. It seems that on or about May 2010, Dodie began to encourage Tyler to contact Ron, and they experienced a brief period of harmony. However, matters deteriorated again. In one instance, Dodie became angry when Robert allowed Tyler to contact Ron, and Tyler stayed with his grandparents for several days as a result.
A physical altercation occurred when Tyler called Ron from his friend's home in August 2010, where Dodie struck Tyler with a paint stick and yelled at him in front of friends. In September of 2010, following Tyler's football game, Dodie arrived to pick up Tyler for visitation. After realizing that Ron and Jeanne were there with Tyler, Dodie and her father became aggressive towards Ron, Noah began to cry, and the police interfered, all of which occurred in front of sixty or seventy people at Tyler's high school. The record, then, supports the decision of the trial court in finding a material change in circumstances warranting a change in custody. Because the trial court did not base its decision on improper or irrelevant evidence, it did not abuse its discretion.
Dodie also claims that Ron and Robert conspired against her, made false allegations about her, and influenced Tyler to lie. The trial court, in its Reasons for Ruling, stated:
In light of the record before us, the evidence supports these findings. The trial court did not abuse its discretion in finding a lack of conspiracy between Ron and Robert.
Dodie argues that the trial court erred in finding it was in the best interest of the children for Ron to be named domiciliary parent and in its failure to grant exclusive medical authority to Dodie.
It is clearly established in Louisiana than courts shall award custody according to the best interest of the child. La.Civ.Code art. 131. Louisiana Civil Code Article 134 mandates that the trial court shall consider all relevant factors in determining the best interest of the child. Those factors may include:
La.Civ.Code art. 134.
In her brief, Dodie discusses each factor and opines that it is in the best interest of Tyler and Noah that they remain with her. She states, inter alia, that the boys had not lived with anyone else before the divorce, that Ron interfered with Dodie's attempts to get Noah tested and diagnosed for Asperger's Disorder, that she could provide a stable home environment, and that Ron's home is far from Tyler and Noah's school. Ron, on the other hand, asserts that he and Jeanne, who reside with Jeanne's young daughter, can provide a more stable and familial environment for Tyler and Noah, and that they have both excelled since living with him.
The trial court conducted an in-depth analysis of the best interest of the child:
The evidence before us, including that which shows Noah's social and self-esteem improvement, the stability of Ron's home, Tyler and Dodie's history, and the fact that Tyler and Dodie remain estranged, indicates that the trial court's decision to name Ron the domiciliary parent was reasonable. The trial court did not abuse its discretion in its decision.
We now turn to Dodie's contention that the trial court erred by failing to give her exclusive authority over medical decisions involving Noah. Dodie claims that Ron excluded her from a conference with the court-appointed evaluator, Dr. Eckholdt, and that Ron gave him a false history of Dodie's abuse and neglect of Noah. She also argues that Dr. Eckholdt did not consult Noah's previous doctor and that he improperly administered the Asperger's diagnostic test. Ron argues that he, as domiciliary parent, should have sole discretion as affects Noah's medical treatment.
For the reasons discussed above, the trial court was reasonable in appointing Ron as domiciliary parent. The evidence supports that this arrangement is in the best interest of the children. For the same reasons, the court was reasonable in failing to place sole authority over Noah's medical treatment in the hands of Dodie.
We also note Dodie's complaints about Dr. Eckholdt's testing procedure. Dr. Eckholdt has a Ph.D. in counseling and psychology and a post-doctoral Master's degree in medical psychology. He is a licensed psychologist and medical psychologist in Louisiana. Dr. Eckholdt also has specialized training in developmental disabilities including Asperger's Disorder. The trial court stated its reasons for accepting Dr. Eckholdt's testing procedure and findings:
Because of Dr. Eckholdt's education and background, and because other psychological professionals made similar findings, we agree with the decision of the trial court accepting Dr. Eckholdt's testing procedure and findings.
Dodie avers that the trial court erred in ordering reconciliation counseling for her and Tyler, and in ordering Noah counseling. In her brief, Dodie cites Griffith v. Latiolais, 10-0754 (La. 10/19/10), 48 So.3d 1058, in support of her claim that ordering counseling for her and Tyler and for Noah on his own is outside the trial court's scope of authority. However, Griffith is distinct from the underlying case, insofar as the court there ordered co-parenting counseling sessions as opposed to parent-child sessions or sessions for a child on his own:
Griffith, 48 So.3d at 1071.
Here, the trial court actually did order a parenting coordinator for Ron and Dodie in accordance with La.R.S. 9:358. However, that order is not at issue in Dodie's appeal. Instead, Dodie objects to the court-ordered counseling sessions for her and Tyler, and for Noah on his own. Given the recent tumultuous and acrimonious history between Dodie and her minor son Tyler, it is reasonable that the trial court ordered counseling for them with the goal of reconciliation. In regards to Noah's counseling, since both Ms. Moore and Dr. Eckholdt recommended an appropriate counselor to aid Noah with his anxiety disorder, the trial court was also reasonable in so ordering. Therefore, the trial court did not abuse its discretion in ordering counseling in its custody decree.
In the next assignments of error, Dodie states that the trial court erred in finding her to be voluntarily underemployed and to have an earning capacity of $2,988.36 per month, an amount that she had not earned for eighteen months prior to the Judgment and was not capable of earning at the time of trial. She also argues that the trial court erred in awarding Ron child support in the amount of $807.33 per month.
Specifically, Dodie claims that she left her previous job at Workplace Staffing Solutions, where she reportedly made $2,988.36 per month, because she could not keep up with the hours and demands of the job and also care for her children, especially Noah. She states that she struggled to find permanent employment afterwards, but finally found a full-time job at Link Staffing Services. At the time of trial, she testified that she made $2,000.00 per month. She points out that she does not have a college degree and that she could not get her job back at Workplace Staffing Solutions. We reject these arguments.
Louisiana Revised Statute 9:315.11 states in pertinent part:
La.R.S. 9:315.11.
Ron argues that Dodie voluntarily resigned from her job and pointed out that she had held the job for six years. He states that the trial court correctly determined that Dodie was voluntarily underemployed based on Dodie's credibility and on factual considerations.
The trial court describes an instance when Dodie lied about her income while she was temporarily employed by KATC television, in the interim between her job at Workplace Staffing Solutions and Link Staffing Services:
The trial court found that Ron earns $2,383.00 per month, and that Dodie quit her employment in January or February of 2010, when she was earning $2,988.36 per month, which the court found to be her earning capacity. The trial court attached an Obligation Worksheet A form to its Reasons for Ruling, wherein it outlines the parties' earnings, their percentage of shared income, the basic and total child support obligations, and calculates each parties' obligations. Dodie's child support obligation is calculated at $807.33, and Ron's is calculated at $643.66. Based on Dodie's credibility and the fact that she resigned from a job she held for six years, we agree with the trial court's determinations and affirm this aspect of the final judgment.
Dodie contends that the trial court erred in assessing Dodie with all costs of the proceedings except the costs of her rule for contempt. She states that she sought her Rule for Modification of Custody, where she sought sole authority over the children's health, thereby prolonging litigation, in order to get Noah the medical treatment and diagnosis he needs to succeed. Ron argues that the court did not err in assessing costs to Dodie.
A court may assess costs on its own discretion: "[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable." La.Code Civ.P. art. 1920. In the underlying case, based on the events described in the record and Dodie's credibility, the trial court did not abuse its discretion in assessing Dodie with costs. We affirm this ruling of the trial court.
As a preliminary matter, we deny the Appellant's motion to stay the appeal. We affirm the trial court's judgment in its entirety. We agree that a material change in circumstances has occurred such that Ron should be the domiciliary parent. We affirm the ruling ordering Appellant Dionysia Prejean and Tyler go to rehabilitation counseling and that Noah go to counseling for his anxiety issues. We affirm the rulings designating Ms. Prejean as voluntarily underemployed and approve the calculation of earnings and child support obligations. Finally, we affirm the assessment of trial court costs to Ms. Prejean. All costs of the appeal are assessed to Appellant, Dionysia Prejean.