Opinion
2023 CV 0087
06-02-2023
ERICA JENKINS v. KELVIN JENKINS
Jennifer Mayberry Counsel for Appellant Baton Rouge, Louisiana Plaintiff-Erica Jenkins ReAzalia Z. Allen Counsel for Appellee Baton Rouge, Louisiana Defendant-Kelvin Jenkins
Appealed From The Family Court Parish of East Baton Rouge State of Louisiana Docket Number 208772 Division C The Honorable Charlene Charlet Day, Presiding Judge
Jennifer Mayberry Counsel for Appellant Baton Rouge, Louisiana Plaintiff-Erica Jenkins
ReAzalia Z. Allen Counsel for Appellee Baton Rouge, Louisiana Defendant-Kelvin Jenkins
Before: Welch, Penzato, and Lanier, JJ.
WELCH, J.
In this child custody dispute, Erica Jenkins (now "Thomas") appeals a judgment that, among other things, modified the joint custodial arrangement between her and Kelvin Jenkins by dividing the domiciliary parent decision-making authority between them and awarding the parties equal physical custody of the child, and found Ms. Thomas in contempt of court. For reasons that follow, we amend the judgment of the trial court, and, as amended, the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORY
Ms. Thomas and Mr. Jenkins were married on November 27, 2011, and they had one child during their marriage, Z,OJ. In April 2017, Ms. Thomas filed a petition seeking a divorce from Mr. Jenkins. Thereafter, the parties entered into a consent judgment, which the trial court signed on May 3, 2017, providing that the parties would have joint custody of the child and that Ms. Thomas would be designated as the domiciliary parent, "subject to reasonable periods of physical custody in favor of [Mr.] Jenkins." The May 3,2017 consent judgment also provided that "[i]t [was] the express intention of the parties that the physical [custodial] schedule ... be an equal sharing of time, to the extent that it [was] in the minor child's best interest and reflecting the varied schedules of the parties."
On August 31,2018, Ms. Thomas filed a petition seeking, among other things, authority from the court to relocate her residence and that of the minor child to Tennessee. Mr. Jenkins objected to the relocation of the child's residence, which resulted in the parties entering into another consent judgment that was signed by the trial court on June 13, 2019. The June 13, 2019 consent judgment provided that the parties would have joint custody of the minor child and that Ms. Thomas would be designated as the domiciliary parent. The June 13, 2019 consent judgment further set Mr. Jenkins' physical custodial schedule during the school year, during the summer, and holidays. More specifically, during the school year, Mr. Jenkins was to have physical custody of the child every Tuesday and Thursday after school until 6:30 p.m. and on alternating weekends from Friday at 6:30 p.m. until Sunday at 6:30 p.m. During the summer months of June and July, Mr. Jenkins was to have physical custody of the child on alternating Tuesdays after childcare until Thursdays at 7:00 p.m. and on alternating weekends from Friday at 6:30 p.m. until Sunday at 6:30 p.m. Ms. Thomas was to have the child every year for the Thanksgiving and Easter holidays, and the parties were to alternate and equally share the Christmas and New Year's holidays. Additionally, Ms. Thomas would have Mother's Day weekend every year, and Mr. Jenkins was to have Father's Day weekend every year.
This judgment also contained provisions relative to child support. However, there are no issues on appeal with respect to child support.
Thereafter, on December 23, 2019, Mr. Jenkins filed a motion to modify physical custody, alleging that since the rendition of the June 13, 2019 consent judgment, there had been a change in circumstances such that a modification of the parties, physical custodial schedule was warranted. More specifically, Mr. Jenkins sought, in order to develop a more substantial and meaningful relationship with the child, to be awarded equal physical custody, or alternatively, that his custodial periods on Tuesdays, Thursdays, and alternating Sundays be overnight. Mr. Jenkins asserted that he desired to have a more active presence in the child's life and that the current custodial arrangement had proven not to be in the best interest of the child because it did not foster the relationship between him and the child, had caused significant distance in their relationship, did not give Mr. Jenkins and the child significant time together, and was not conducive to the growth and development of a meaningful relationship between the child and Mr. Jenkins.
We note that Mr. Jenkins filed an amended motion to modify custody to include the ancillary request for a modification of child support. However, as previously noted, there are no issues concerning child support on appeal herein.
A hearing on Mr. Jenkins' request for a modification of custody was scheduled for March 10, 2020. On that date, a status conference was held, and a case management schedule was issued setting the matter for trial on June 26, 2020. Following the statewide public health emergency related to the COVID-19 pandemic and the restrictions that were instituted, the trial court held another status conference on April 9, 2020, to provide the parties direction with regard to physical custody pending trial in light of the COVID-19 pandemic. Following the status conferences, the trial court issued an Interim Judgment that modified the parties' physical custodial arrangement pending trial and re-set the trial for October 16, 2020. The Interim Judgment provided that Mr. Jenkins would exercise physical custody every other Thursday at 6:30 p.m. until Sunday at 6:30 p.m., commencing the weekend of March 12-15, 2020. The Interim Judgment further provided that at the end of the school year, during the summer months and pending trial, the parties would exercise physical custody on a week-to-week basis from Sunday at 6:30 p.m. until the following Sunday at 6:30 p.m., commencing Sunday June 7, 2020, except on Father's Day, the minor child would be exchanged at 9:30 a.m.
The Interim Judgment was signed by the trial court on October 15, 2020.
On December 11, 2020, Mr. Jenkins filed an ex-parte motion for custody and a motion for contempt. Therein, Mr. Jenkins alleged Ms. Thomas had taken physical custody of the child at the exchange on Sunday, November 15, 2020, but she failed to show up at the exchange on Sunday, November 22, 2020, to return the child to Mr. Jenkins' physical custody. Mr. Jenkins also alleged that since that time, Ms. Thomas had refused to provide him with any information concerning the child or the child's whereabouts, and that Ms. Thomas had secreted and alienated the child from him for over a month. Mr. Jenkins further alleged that Ms. Thomas had routinely interfered with and refused to allow Mr. Jenkins to exercise the periods of physical custody that he was entitled to under the Interim Judgment. Therefore, Mr. Jenkins requested that Ms. Thomas be ordered to return the child to Mr. Jenkins, that her custodial rights be suspended until further proceedings were held, and that a civil warrant be issued to return the child to Mr. Jenkins' custody. Mr. Jenkins also requested that Ms. Thomas be held in contempt of court and punished for her failure to allow Mr. Jenkins to exercise his physical custodial rights pursuant to the Interim Judgment. The trial court denied the request for ex-parte modification of custody, ordered the parties to follow the judgment that was currently in place, i.e. the Interim Judgment, and set the matter for a hearing.
Thereafter, on April 19, 2021, Mr. Jenkins filed an amended motion for contempt of court, attorney fees, and court cost, to allege additional instances/dates when Ms. Thomas had refused to allow Mr. Jenkins to exercise his physical custodial rights that were set forth in the Interim Judgment, including March 2020 (at the commencement of the institution of the COVID-19 pandemic restrictions), March 2021, and April 2021. The issues raised by Mr. Jenkins' motions were set to be heard with the trial on the merits.
A trial on Mr. Jenkins' pending motions for a change in custody and for contempt was held on May 26, 2021, June 3, 2021, August 13, 2021, September 24, 2021,February 4, 2022, and April 1, 2022. At the conclusion of trial on April 1, 2022,the trial court took the matter under advisement, and thereafter, the trial court rendered and signed a judgment on July 20, 2022.
Notably, during the pendency of trial, the parties entered into an Interim Consent Judgment, which the trial court signed on January 11, 2022. This Interim Consent Judgment provided that the parties would have joint custody of the minor child and that Ms. Thomas would be designated as the child's domiciliary parent. It also awarded Mr. Jenkins specific periods of physical custody for the then upcoming Thanksgiving and Christmas/New Year's 2021 holidays and for the months of December 2021 and January 2022, and set the parties' physical custodial schedule thereafter for holidays of Thanksgiving, Christmas, Easter, Mother's Day, and Father's Day.
In response to the July 20, 2022 judgment, Ms. Thomas filed a motion for new trial, which the trial court denied pursuant to a judgment signed on October 24, 2022. She also requested written reasons for judgment from the trial court, which the trial court issued on November 4, 2022.
The July 20, 2022 judgment contained numerous provisions concerning the legal authority and responsibilities of the parties with regard to the child, which included, among other things, that the parties would have joint custody of the child and would share equal physical custody of the child on an alternating weekly basis from Friday at 5:00 p.m. until the following Friday at 5:00 p.m. The judgment modified the previous domiciliary parent designation to provide that Ms. Thomas would be designated as the domiciliary parent with respect to education and health decisions and that Mr. Jenkins would be designated as the domiciliary parent with respect to extracurricular activities. The judgment also provided that the parties would alternate physical custody of the child for the major holidays of Easter, Thanksgiving, and Christmas, as well as the minor holidays of Mardi Gras, Memorial Day, 4th of July, and Labor Day, and that Ms. Thomas would have physical custody every Mother's Day weekend and that Mr. Jenkins would have physical custody every Father's Day weekend. The trial court found Ms. Thomas in contempt of court and ordered her to pay $240.00 in court costs for filing fees and $1,250.00 in attorney fees, which were incurred in connection with Mr. Jenkins' motion for contempt.
From the July 20, 2022 judgment, Ms. Thomas has appealed. On appeal, Ms. Thomas asserts that the trial court erred in finding her in contempt of court and in modifying the parties' custodial arrangement to provide for equal physical custody.
CONTEMPT
A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. There are two kinds of contempt of court: direct and constructive. Id. Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court constitutes a constructive contempt of court. La. C.C.P. art. 224(2).
To find a person guilty of constructive contempt, the court must find that he or she violated the order of the court intentionally, knowingly, and purposely, without justifiable excuse. Rogers v. Pastureau, 2012-2008 (La.App. 1st Cir. 4/26/13), 117 So.3d 517, 532, writ denied, 2013-1833 (La. 8/8/13), 120 So.3d 247.
If the person charged with contempt is found guilty, the court shall render an order reciting the facts constituting the contempt, adjudging the person charged with contempt guilty thereof, and specifying the punishment imposed. La. C.C.P. art. 225(B). The trial court is vested with great discretion in determining whether a party should be held in contempt of court and its decision will be reversed only when the appellate court discerns a clear abuse of that great discretion. Rogers, 117 So.3d at 532.
The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in La. R.S. 13:4611. La, C.C.P. art. 227. Pertinent to the allegations of contempt at issue herein-the failure to obey an order for the right of custody or visitation-La. R.S. 13:461 l(1)(d)(i) provides that the trial court may punish a person adjudged guilty of a contempt of court "by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both." In addition to or in lieu of those penalties, the trial court may also order the payment of all court costs and reasonable attorney fees incurred by the other party. La. R.S. 13:461 l(1)(e)(iv). Furthermore, a pattern of willful and intentional violation of a custody or visitation order without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order. La. R.S. 13:461 l(1)(f).
In addition to these provisions, La. R.S. 9:346 provides, in pertinent part:
A. An action for the failure to exercise or to allow child visitation, custody or time rights pursuant to the terms of a court-ordered schedule may be instituted against a parent. The action shall be in the form of a rule to show cause why such parent should not be held in contempt for the failure and why the court should not further render judgment as provided in this Section.
C. If the action is for the failure to allow child custody, visitation, or time rights pursuant to a court-ordered schedule, and the petitioner is the prevailing party, the defendant shall be held in contempt of court and the court shall award to the petitioner:
(1)A reasonable sum for any actual expenses incurred by the petitioner by the loss of his visitation, custody or time rights.
(2)Additional visitation, custody or time rights with the child equal to the time lost.
(3)All attorney fees and costs of the proceeding.
(4)All costs for counseling for the child which may be necessitated by the defendant's failure to allow visitation, custody, or time rights with the child.
G. It shall be a defense that the failure to allow or exercise child visitation rights pursuant to a court-ordered schedule was by mutual consent, beyond the control of the defendant, or for other good cause shown.
H. A pattern of willful and intentional violation of this Section, without good cause, may be grounds for a modification of a custody or visitation decree.
J. The action authorized by this Section shall be in addition to any other action authorized by law.
As set forth above, in this case, the trial court's judgment found Ms. Thomas in contempt of court; however, it did not impose any punishment, fine, or sentence on Ms. Thomas. Rather, the trial court ordered her to pay $240.00 in court costs and $1,250.00 in attorney fees incurred by Mr. Jenkins in his motion for contempt. In its written reasons for judgment, the trial court found that Ms, Thomas was guilty of contempt for retaining the minor child from Mr. Jenkins in violation of its judgment, and that Ms. Thomas did not follow the trial court's order, even though Mr. Jenkins requested multiple times that he be allowed to exercise his custodial periods. Therefore, the trial court found that Ms. Thomas willfully and intentionally violated the Interim Judgment.
On appeal, Ms. Thomas contends that the trial court erred in finding her in contempt of court for violating the provisions of the Interim Judgment. In doing so, she does not dispute that she failed to follow the provisions of the Interim Judgment at the times complained of by Mr. Jenkins; rather, she argues that she had a justifiable excuse. However, based on our review of the record, we cannot say that the trial court abused its vast discretion in finding Ms. Thomas in contempt of court for intentionally, knowingly, and willfully violating orders or judgments of the court without justifiable excuse.
We note that Ms. Thomas also contends that the trial court erred in finding her in contempt because the Interim Judgment was invalid, as it was not a consent judgment and was not rendered after a hearing, but instead, issued by the trial court following an in-chambers conference with each party's counsel of record. Notably, Ms. Thomas does not allege, nor does the record reflect, that the Interim Judgment was absolutely null in accordance with La. C.C.P. art. 2002. As such, Ms. Thomas' arguments as to the validity of the Interim Judgment constitute an impermissible collateral attack on that judgment. Therefore, we decline to address those arguments. See Salles v. Salles, 2004-1449 (La.App. 1st Cir. 12/2/05), 928 So.2d 1, 5 (providing that a collateral attack is defined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it and that Louisiana law forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio).
According to the record, the first instance when Ms. Thomas failed to allow Mr. Jenkins his physical custodial rights occurred in March 2020, at the beginning of the institution of the COVID-19 pandemic restrictions. At that time, Ms. Thomas initially refused to let Mr. Jenkins have the periods of physical custody that he was entitled to under the June 13, 2019 judgment, i.e. Tuesday afternoons, Thursday afternoons, and alternating weekends. Ms. Thomas's testimony reveals that she refused to allow Mr. Jenkins to have physical custody because she wanted to keep the child safe and healthy, because of her interpretation of the Governor's press conference and his implementation of the stay-at-home policy, and because she wanted to discuss the matter with her attorney. Based on Ms. Thomas's actions, a status conference was held with the trial court, which resulted in the trial court issuing the Interim Judgment. Following that status conference, the parties began alternating physical custody of the child on a weekly basis.
The next incident when Mr. Jenkins did not receive his physical custodial time occurred in November and December 2020. According to the alternating weekly schedule provided in the Interim Judgment, Mr. Jenkins was scheduled to have custody of the child commencing Sunday, November 22, 2020. However, Ms.
Thomas failed to show up with the child, and did not respond to Mr. Jenkins' inquiries concerning the exchange of custody. According to Ms. Thomas, although the parties had been alternating physical custody on a weekly basis under the Interim Judgment, the week commencing Sunday, November 22, 2020, was Thanksgiving, the Interim Judgment did not provide a custodial schedule for the holidays, and pursuant to the June 13, 2019 consent judgment, she was entitled to the Thanksgiving holiday week. Ms. Thomas also testified that after the Thanksgiving holiday week, she was entitled to physical custody the following week (Sunday, November 29, 2020 through December 6, 2020) under the alternating weekly schedule. Thereafter, Mr. Jenkins attempted to pick up the child from dance lessons on Monday, December 7,2020. However, Ms. Thomas refused to allow Mr. Jenkins to do so and she advised the dance instructor that it was her custodial week. On December 11, 2020, Mr. Jenkins, having not seen the child since Sunday, November 15, 2020, filed his motion for ex-parte custody and motion for contempt.
Thereafter, Mr. Jenkins again did not receive his custodial time in late January/early February 2021. At that time, Ms. Thomas travelled to Tennessee with the child to visit her mother, who was in the hospital. Eventually, Ms. Thomas's mother passed away. Mr. Jenkins was not made aware of the situation until after Ms. Thomas and the child were already in Tennessee and just prior to the time when the parties were to exchange the child. Upon learning that Ms. Thomas and the child were in Tennessee and that Mr. Jenkins would not be receiving his custodial time, Mr. Jenkins requested to speak to the minor child and also attempted to call Ms. Thomas on January 24 and January 25,2021. However, Ms. Thomas did not respond to Mr. Jenkins' request until several days later. Ms. Thomas returned to Baton Rouge with the child on February 15, 2021, but did not return the child back to Mr. Jenkins' physical custody until February 22, 2021. According to Ms. Thomas, the delay in returning the child to Mr. Jenkins was attributable to the need to quarantine after the trip. As a result of this incident, Mr. Jenkins did not see the child for approximately four weeks. Mr. Jenkins testified that although he was fully supportive of the child being in Tennessee with her grandmother at the end of her life and for the funeral arrangements, Mr. Jenkins believed that Ms. Thomas should have made more of an effort to communicate with him regarding the timeframe that she would be gone.
In March 2021, at the time of the child's spring break, the same situation that occurred during Thanksgiving 2020 occurred-wherein Mr. Jenkins did not have physical custody of the child for approximately three weeks. Essentially, Ms. Thomas exercised her weekly physical custodial period under the Interim Judgment, followed by a week of physical custody for Easter week, which Ms. Thomas claimed that she was entitled to under the June 13, 2019 consent judgment, followed by a week of physical custody under the Interim Judgment.
Shortly thereafter, Mr. Jenkins was also deprived of physical custodial time from April through May 2021. According to Mr. Jenkins, he exchanged the child to Ms. Thomas on March 28, 2021. During Mr. Jenkins custodial time, Mr. Jenkins had taken the child to the eye-doctor because he noticed the child was exhibiting some sight-related issues. Ms. Thomas was displeased by Mr, Jenkins' actions, claiming that the child already had an eye doctor. In addition, while the child was in Mr. Jenkins' physical custody, the child received a spanking for throwing a temper tantrum in the store. Upon learning this, Ms. Thomas examined the child and believed the child had whelps. Therefore, she brought the child to the pediatrician. The pediatrician found no signs of bruising or abuse, but noted that the child had stretch marks. Ms. Thomas reported Mr. Jenkins to child protective services, but the charges were not validated. However, Ms. Thomas continued to withhold the child from Mr. Jenkins until trial commenced on May 26, 2021, based on the advice of her attorney. According to Mr. Jenkins, Ms. Thomas did not communicate any of the reasons for withholding physical custody to him.
The trial court was presented with several instances when Mr. Jenkins was entitled to have physical custody of the child, but Ms. Thomas failed to show up at the exchange, refused to allow Mr. Jenkins the periods of physical custody of the child that he was entitled to, and/or refused to communicate with Mr. Jenkins concerning the child's whereabouts or otherwise explain or communicate to him why she would not allow him to have the periods of physical custody to which he was entitled. Although Ms. Thomas presented the reasons why she failed to follow the judgments of the court, the trial court apparently found her actions were not justified. Having reviewed the judgments at issue and the testimony at trial, we find there is a reasonable factual basis for the trial court's determination that Ms. Thomas intentionally, knowingly, and willfully violated judgments of the court without justifiable excuse. Thus, we cannot say that the trial court abused its vast discretion with regard to its decision to find Ms. Thomas in contempt of court and its order that Ms. Thomas pay the court costs and attorney fees incurred by Mr. Jenkins in filing the motions for contempt. Therefore, this portion of the trial court judgment is affirmed.
MODIFICATION OF CUSTODY
Every child custody case must be viewed in light of its own particular set of facts and circumstances. Underwood v. Underwood,
2021-0277 (La.App. 1st Cir. 10/21/21), 332 So.3d 128, 139. The paramount consideration in any determination of child custody is the best interest of the child. Id.; Evans v. Lungrin,
97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, 738; see La. C.C. art. 131. This applies not only in actions setting custody initially, but also in actions to change custody. Underwood, 332 So.3d at 139. It is the child's emotional, physical, material, and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. Id.
Louisiana Civil Code article 134 provides a non-exclusive list of factors that the trial court shall consider, along with all other relevant factors for the determination of the best interest of the child. Id. These non-exclusive factors include:
(1) The potential for the child to be abused, as defined by [La. Ch.C. art.] 603, which shall be the primary consideration.
(2)The love, affection, and other emotional ties between each party and the child.
(3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(4)The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(7)The moral fitness of each party, insofar as it affects the welfare of the child.
(8)The history of substance abuse, violence, or criminal activity of any party.
(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
(10)The home, school, and community history of the child.
(11)The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
(13)The distance between the respective residences of the parties.
(14)The responsibility for the care and rearing of the child previously exercised by each party.
The determination of the weight to be given each factor set forth in La. C.C. art. 134 is left to the discretion of the trial court. Underwood, 332 So.3d at 139; Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d700,703. "The illustrative nature of the listing of factors contained in [La. C.C. art.] 134 gives the court freedom to consider additional factors; and, in general, the court should consider the totality of the facts and circumstances of the individual case." Hodges, 181 So.3d at 703. The consideration of all relevant factors under La. C.C. art. 134 should be followed in actions to change custody, as well as in those to fix custody initially. Underwood, 332 So.3d at 140; La. C.C. art. 134,1993 Revision Comment (d). However, the trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Underwood, 332 So.3d at 140.
In addition to consideration of the best interest of the child, in actions to change a custody plan ordered pursuant to a non-considered decree or consent judgment, a party seeking a modification must prove: (1) that there has been a change in circumstances materially affecting the welfare of the child since the original (or previous) custody decree was entered; and (2) that the proposed modification is in the best interest of the child. Evans, 708 So.2d at 738; Elliott, 49 So.3d at 413; see also Richard v. Richard, 2009-0299 (La.App. 1st Cir. 6/12/09), 20 So.3d 1061, 1066.
There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and of that needed to change a custody plan ordered pursuant to a non-considered decree. Elliott v. Elliott, 2010-0755 (La.App. 1st Cir. 9/10/10), 49 So.3d 407, 412, writ denied. 2010-2260 (La. 10/27/10), 48 So.3d 1088; see also Evans, 708 So.2d at 738. A "considered decree" is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Elliott, 49 So.3d at 412. By contrast, a non-considered decree or uncontested decree is one in which no evidence is presented as to the fitness of the parents, such as one that is entered by default, by stipulation or consent of the parties, or is otherwise not contested. Id.
In this case, the trial court maintained the award of joint custody set forth in the parties' June 13, 2019 consent judgment. However, the trial court modified (1) the physical custodial periods set forth in the June 13, 2019 consent judgment to provide for an award of equal physical custody and (2) the prior designation of Ms. Thomas as the domiciliary parent by specifically allocating the legal authority and responsibility of the parents. Physical custody is a separate matter from legal authority and responsibility over a child. Underwood, 332 So.3d at 140; Hodges , 181 So.3d at 705. Once a trial court awards legal joint custody, La. R.S. 9:335 governs the details of that custodial arrangement, including physical custody, as well as the legal authority and responsibility of the parents. Underwood, 332 So.3d at 141; see also Hodges. 181 So.3dat703.
Louisiana Revised Statutes La. R.S. 9:335 provides, in pertinent part:
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
* * *
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other
parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
In addition, La. R.S. 9:336 provides that "[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority."
Thus, in a case involving joint custody, La. R.S. 9:335(B)(1) provides for the designation of a domiciliary parent, except when there is an implementation order to the contrary or for other good cause shown; the domiciliary parent is defined as "the parent with whom the child shall primarily reside," and "shall have authority to make all decisions affecting the child, unless an implementation order provides otherwise." La. R.S. 9:335(B)(2) and (3). However, in exercising this decisionmaking authority, the parents must confer with each other. La. R.S. 9:336.
The June 13, 2019 judgment designated Ms. Thomas as the domiciliary parent, and thus, granted her exclusive authority to make all decisions affecting the child. The June 13, 2019 judgment also awarded Mr. Jenkins specific periods of physical custody of the child, i.e., alternating weekends, Tuesday and Thursday evenings during the school year, Tuesday through Thursday on alternating weeks during the summer months of June and July, and equal, alternating Christmas and New Year's holidays. Therefore, in order to modify the parties' custodial arrangement to award the parties equal physical custody and to allocate the decisionmaking authority with respect to extracurricular activities to Mr. Jenkins, the trial court had to find that (1) a material change in circumstances affecting the welfare of the child had occurred since the rendition of the June 13, 2019 consent judgment; and (2) that this modification was in the best interest of the child. See Evans, 708 So.2d at 738; Elliott, 49 So.3d at 413.
The trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Tinsley v. Tinsley, 2016-0891 (La.App. 1st Cir. 1/8/17), 211 So.3d 405, 411. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Id. In this case, and as in most child custody cases, the trial court's determination was based heavily on factual findings. Id. It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Id., citing Roseil v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.
On appeal, Ms. Thomas contends that the trial court erred in modifying the parties' prior custodial arrangement because Mr. Jenkins failed to allege in his motion to modify custody that a material change in circumstances affecting the welfare of the child had occurred since the rendition of the June 13, 2019 consent judgment. Notably, in response to Mr. Jenkins' motion for modification of custody, Ms. Thomas did not file a peremptory exception raising the objection of no cause of action. Rather, she argues that the trial court should have noticed the peremptory exception raising the objection of no cause of action on its own motion, and further, that this Court should notice the objection on its own motion.
We recognize that La. C.C.P. art, 927(B) provides that both an appellate court and a trial court "may" notice the objection of no cause of action on its own motion. See La. C.C.P. art. 927(B). The use of the word "may" in this article establishes that the decision to notice the objection on the court's own motion is discretionary, not mandatory. Based on our review of Mr. Jenkins' motion for modification of custody, we cannot say that the trial court abused its discretion in failing to notice the objection of no cause of action on its own motion, and this Court likewise declines to notice same.
Mr. Jenkins' motion for modification of custody clearly alleged that "[s]ince the rendition of [the June 13, 2019 consent] judgment, there has been a change in circumstances, outlined herein, which requires a modification of the [physical] custody schedule between the parties and the minor child." More particularly, Mr. Jenkins claimed that the physical custodial arrangement set forth in the June 13,2019 consent judgment was not fostering the relationship between the child and Mr. Jenkins and had caused significant distance in their relationship because they did not have sufficient time together. Mr. Jenkins also alleged that a modification was in the child's best interest.
Thus, Mr. Jenkins made the necessary allegations of fact regarding a change of circumstances since the rendition of the June 13, 2019 consent judgment warranting a modification and claimed that the modification would be in the best interest of the child. Therefore, we cannot say that Mr. Jenkins' motion for modification of custody failed to state a cause of action. To the extent that Ms. Thomas argues that Mr. Jenkins' factual allegations of a change in circumstance were insufficient to warrant a modification of custody, that issue is more appropriately directed to the trial on the merits of Mr. Jenkins' motion-not to the determination of whether Mr. Jenkins has stated a cause of action. Furthermore, since a trial has already occurred, Mr. Jenkins' entitlement to the relief requested and granted by the trial court is now a matter of whether he proved that a change in circumstances materially affecting the welfare of the child had occurred since the rendition of the June 13, 2019 judgment.
Next on appeal, Ms. Thomas contends that Mr. Jenkins failed to prove a material change in circumstances affecting the welfare of the child had occurred since the rendition of the June 13, 2019 consent judgment and the date his request for a modification was filed. She argues that the testimony at trial with regard to the issue of a change in circumstance consisted of events that occurred after Mr. Jenkins filed his request for modification, during the instant custody litigation, and relating to the fallout between the parties as a result of Mr. Jenkins requests for a modification. Therefore, Ms. Thomas contends that Mr. Jenkins failed to meet his burden of proof in this regard. We find no merit to this contention.
Contrary to Ms. Thomas's argument, Mr. Jenkins' burden was not to prove a change in circumstance materially affecting the welfare of the child between the rendition of the June 13, 2019 consent judgment and the date he filed his motion for a modification. Rather, the jurisprudence is clear that Mr. Jenkins' burden of proof at trial was to establish (1) a material change in circumstances affecting the welfare of the child had occurred since the rendition of the June 13, 2019 consent judgment; and (2) that the modification sought was in the best interest of the child. See Evans, 708 So.2d at 738; Elliott, 49 So.3d at 413.
Nonetheless, we find that, in accordance with the allegations Mr. Jenkins made in his motions to modify custody, he presented evidence at trial that following the June 13, 2019 judgment through the date he filed his motions for modification, the relationship that he had with the child had become distant and that he and the child did not have sufficient time together. Notably, the consent judgment in effect prior to the June 13, 2019 judgment (the May 3, 2017 consent judgment) provided that Mr. Jenkins would have reasonable periods of physical custody and that the parties intended that the physical custodial schedule be an equal sharing of time. Thus, the June 13, 2019 consent judgment, having decreased Mr. Jenkins' potential physical custodial time, caused significant distance in the relationship that the child and Mr. Jenkins had, and as such, constitutes a material change in circumstance affecting the welfare of the child.
Furthermore, as pointed out by Ms. Thomas, there was a significant amount of evidence concerning events that occurred after Mr. Jenkins filed his request for a modification of custody, during the instant custody litigation, and that related to the fallout between the parties as a result of Mr. Jenkins' requests for a modification. This evidence included numerous instances of Ms. Thomas's admitted failure and/or refusal to communicate with Mr. Jenkins and her failure to foster a relationship between Mr. Jenkins and the child. The trial court, in its reasons for judgment, specifically noted that Ms. Thomas testified that she stopped trying to facilitate a relationship between Mr. Jenkins and the child and that she kept the child away from Mr. Jenkins for three to four weeks at a time. The trial court's factual findings in this regard are fully supported by the testimony of Mr. Jenkins and Ms. Thomas at trial. To the extent that Ms. Thomas contends that the trial court erred in considering these events in determining that a change in circumstance materially affecting the welfare of the child had occurred, we find no merit to this contention.
Custody proceedings do not operate in a vacuum. Proof of any change in circumstances materially affecting the welfare of the child is proof of a change in circumstances materially affecting the welfare of the child-whether such change occurs prior to the filing of a request to modify custody or during the custody proceedings itself. This comports with the statutory and jurisprudential mandate that the best interest of the child is always the paramount consideration in any in any determination of child custody. See Evans, 708 So.2d at 738; La. C.C. art. 131.
We recognize that in filing a request for a modification of custody, a party must make factual allegations of a change in circumstances materially affecting the welfare of the child. However, in the event those factual allegations are not proven at trial or are insufficient to constitute a change in circumstances materially affecting the welfare of the child, nothing precludes the trial court from considering any other facts or events established at trial that constitute a change in circumstance materially affecting the welfare of the child in determining whether a modification of custody is warranted.
Lastly, with respect to a change in circumstance materially affecting the welfare of the child, as previously set forth with regard to the contempt proceedings, both La. R.S. 9:346(H) and 13:4611(1)(f) provide that a pattern of willful and intentional violation of a custody or visitation order without good cause may be grounds for or constitute a material change in circumstances warranting a modification of an existing custody or visitation order. The trial court was presented with several instances, detailed above, wherein Ms. Thomas failed to abide by the parties' physical custodial schedule that was set forth in the judgments of the trial court. Based on that evidence, the trial court found that Ms. Thomas's actions were willful, intentional, and without good cause or justifiable excuse. Furthermore, this Court has reviewed those findings and found no manifest error or abuse of the trial court's discretion. As such, the factual finding that Ms. Thomas, on several occasions, willfully, intentionally, and without good cause or justifiable excuse failed to abide by the parties' physical custodial schedule set forth in the judgments of the court constitutes a change in circumstances warranting a modification of custody.
Insofar as the best interest of the child is concerned, Ms. Thomas contends that the trial court erred in finding that equal physical custody was in the best interest of the child and that it gave improper weight to its finding of contempt against Ms. Thomas. However, as previously set forth, the determination of the weight to be given each factor set forth in La. C.C. art. 134 is left to the discretion of the trial court. Hodges, 181 So.3d 700 at 703; Underwood, 332 So.3d at 139. Furthermore, in determining that equal physical custody was in the child's best interest, the trial court's reasons for judgment reflect that it carefully considered all of the evidence in light of the relevant factors set forth in La. C.C. art. 134.
With respect to the first factor (the potential for the child to be abused), the trial court found that there had been no abuse of the child. The trial court noted that there was testimony that Mr. Jenkins gave the child a spanking, that the incident was reported to child protective services by Ms. Thomas, that it was investigated by child protective services, but that the allegations of abuse were not validated. The trial court further noted that in order to avoid future allegations of abuse, it ordered that there be no corporal punishment of the child.
As to factor number two (the love, affection, and other emotional ties between each party and the child), the trial court found that Ms. Thomas seemed to have stronger ties with the child, and Mr. Jenkins was more of a disciplinarian. However, the trial court found that he had strong love, affection, and emotional ties to the child. The trial court noted that although the ways in which Mr. Jenkins and Ms. Thomas showed their love for the child was vastly different, both of them loved their child.
The trial court found the evidence weighed in favor of both parties as to factor number three (the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child), factor number four (the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs), and factor number six (the permanence, as a family unit, of the existing or proposed custodial home or homes). The trial court found that factor number seven (moral fitness of each party insofar as it affects the welfare of the child), factor number eight (history of substance abuse, violence, or criminal activity of any party), and factor number nine (mental and physical health of each party) were not at issue. However, with respect to factor number nine, the trial court stated that it was alarmed by Ms. Thomas's failure to realize that keeping the minor child away from Mr. Jenkins for three to four weeks at a time would be harmful to the child, and that in order for joint custody and co-parenting to be successful, the parties had to ensure that the child had a meaningful and continuing relationship with the other parent.
As to factor number five (the length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment), the trial court noted that although Mr. Jenkins had attempted to show this factor weighed in his favor because Ms. Thomas deprived him of some of his custodial time, it believed that the parties could learn to work together to provide a stable and adequate environment for the child and that alternating custody on a week to week basis would help establish this stability within each household.
Concerning factor number ten (the home, school, and community history of the child), the trial court found that the child was primarily living with Ms. Thomas when these proceedings commenced, but following counseling, had resumed custodial time with Mr. Jenkins. The trial court also noted that there was no testimony presented that the child was having difficulty in school. With regard to factor number thirteen (the distance between the respective residences of the parties), the trial court noted that the parties lived approximately five to ten minutes away from each other.
Insofar as factor number eleven was concerned (the reasonable preference of the child), the trial court opined that the child, who was eight years old, was not of an adequate age and discernibility to be allowed to choose which parent she wished to live with, although the trial court did note that, during its interviews of the child, the child had expressed the preference to live with Ms. Thomas. As to the twelfth factor (the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party), the trial court found the evidence weighed in favor of Mr. Jenkins. The trial court noted that while both parties testified that they could facilitate a relationship between the child and the other party, Mr. Jenkins had convinced the court he was better suited to do so because Ms. Thomas testified several times that since these proceedings had started, she had stopped trying to facilitate such a relationship.
Lastly, as to factor number fourteen (the responsibility for the care and rearing of the child previously exercised by each party), the trial court acknowledged that Ms. Thomas had exercised more responsibility for the care and rearing of the child; however, that was due to the fact that she had deprived Mr. Jenkins of his custodial time. The trial court also found that while Ms. Thomas had historically provided more care and rearing of the child because she had more physical custody of the child, Mr. Jenkins was more than capable of providing care for and rearing the child.
Considering all of the evidence and weighing the relevant factors, the trial court determined that an award of equal custody with the parties alternating physical custody on a weekly basis, subject to a specific holiday physical custodial schedule, was in the best interest of the child. The trial court also found that it was in the best interest of the child that Ms. Thomas be designated as the parent with decisionmaking authority with respect to education and health decisions and that Mr. Jenkins be designated as the parent with decision making-authority regarding extracurricular activities. Based on our review of the record, this factual finding is reasonably supported by the record and is not clearly wrong. Thus, we cannot say that the trial court's abused its vast discretion with regard to its custody determination or its modification of the June 13, 2019 consent judgment.
While we find no error or abuse of discretion in the trial court's decision to modify the June 13, 2019 consent judgment by dividing the decision-making authority between the parties in the manner that it did, we find the trial court's use of the term "domiciliary parent" in its judgment before the allocation of both parent's decision-making authority to be both unnecessary and improper based on the Louisiana Supreme Court's holding in Hodges, 181 So.3d at 706-710, as well as this Court's holding in Underwood , 332 So.3d at 147-149.
In Underwood , 332 So.3d at 147-149, this Court examined Hodges in conjunction with the review of a similar split decision-making authority provision in a judgment. This Court concluded that, when a judgment provides for joint custody, specifically allocates the time periods during which each parent has physical custody of the child, and specifically allocates the legal authority and responsibility of the parties, including the decision-making authority, the trial court's judgment meets all requirements for a joint custody implementation order. Id. at 148. This Court further concluded that in such cases, it is both unnecessary and contrary to the plain language of La. R.S. 9:335 to designate each party as a domiciliary parent when allocating each parent's specific parental decision-making authority and responsibility. Id. Therefore, this Court amended the trial court's judgment to correct this error by deleting all references to a "domiciliary parent." Id. at 148-149.
As previously set forth, the trial court's judgment in this case provides that Ms. Thomas "is designated as [d]omiciliary [p]arent with respect to [education and [h]ealth decisions" and Mr. Jenkins "is designated [as] [d]omiciliary [p]arent regarding [e]xtracurricular [a]ctivities." As in Underwood, although the trial court's judgment does not utilize the term "co-domiciliary parents," it effectively designates two domiciliary parents, contrary to the holding of Hodges , 181 So.3d at 706, that "the court can only designate a single domiciliary parent." See Underwood, 332 So.3d at 148.
Accordingly, we amend the trial court's judgment to delete all references to "[d]omiciliary [p]arent"-both in regards to Ms. Thomas's decision-making authority regarding education and health decisions, and Mr. Jenkins' decisionmaking authority regarding extracurricular activities. See La. C.C.P. art. 2164; Underwood , 332 So.3d at 149. As amended, we affirm the trial court's judgment awarding the parties equal physical custody on an alternating weekly basis and its specific allocation of decision-making authority.
CONCLUSION
For all of the above and foregoing reasons, the July 20, 2022 judgment of the trial court is amended to delete all references to domiciliary parent. In all other respects, the judgment is affirmed. All costs of this appeal are assessed to the appellant, Erica Thomas.
AMENDED AND AFFIRMED AS AMENDED.