Opinion
NUMBER 2012 CU 2009
03-22-2013
AARON MELVIN v. TAWANNA B. MELVIN
Richard Ducote Pittsburgh, PA Counsel for Defendant/Appellant, Tawanna B. Melvin Brian J. Prendergast Baton Rouge, LA Counsel for Defendant/Appellee, Aaron Melvin
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket Number 80,879
Honorable Jessie LeBlanc, Judge Presiding
Richard Ducote
Pittsburgh, PA
Counsel for Defendant/Appellant,
Tawanna B. Melvin
Brian J. Prendergast
Baton Rouge, LA
Counsel for Defendant/Appellee,
Aaron Melvin
BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
WHIPPLE , J.
In this protracted custody dispute, Tawanna B. Melvin Purpera appeals a judgment of the trial court dismissing her motion to modify custody and visitation on the basis that she failed to state a cause of action. For the following reasons, we affirm.
Tawanna Melvin remarried during the course of these proceedings and was subsequently referred to in the record below as "Tawanna Purpera" or "Lynn Purpera." Accordingly, we refer to her as "Mrs. Purpera" in this opinion.
FACTS AND PROCEDURAL HISTORY
Aaron Melvin and Mrs. Purpera were married in 1995 and subsequently divorced on March 6, 2006. Two children were born of the marriage. On March 30, 2009, the parties entered into a consent judgment wherein they were awarded joint custody of their minor children with Mr. Melvin designated as the primary domiciliary parent subject to visitation in favor of Mrs. Purpera every other weekend during the school year. Additionally, Mrs. Purpera was awarded visitation for the first two-week period and the last two-week period of the summer, and the parties alternated weekly visitation for the remaining weeks of the summer.
On January 21, 2011, Mrs. Purpera filed a motion to modify custody and visitation and for an appointed attorney for the children. Therein, Mrs. Purpera requested that she be awarded sole custody of the minor children and that Mr. Melvin be awarded "limited professionally supervised visitation." The matter was ultimately set for trial and heard on July 5, 7, and 29, 2011. On August 4, 2011, the trial court signed a judgment in favor of Mr. Melvin denying Mrs. Purpera's request for sole custody, awarding the parties joint custody of the minor children, naming Mr. Melvin as the primary domiciliary parent, and setting forth a visitation schedule for the parties.
Mrs. Purpera requested that Mr. Melvin's visitation with the children be restricted to supervised visitation conditioned upon his completion of a specialized treatment program for abusive parents, as Mrs. Purpera alleged that his home was "extremely abusive, neglectful, and intolerable for the children."
Mrs. Purpera filed a motion for appeal of the August 4, 2011 judgment, which was subsequently dismissed pursuant to her own motion to dismiss appeal filed January 4, 2012.
Thereafter, on October 21, 2011, only two and a half months after the trial court's considered decree of custody and visitation, Mrs. Purpera filed another motion to modify custody and visitation, again seeking sole custody of the children and restricted, Le., "limited professionally supervised visitation," for Mr. Melvin. Alternatively, she sought to be designated as domiciliary parent. In response, Mr. Melvin filed an exception of no cause of action, averring that Mrs. Purpera failed to allege any ground in her motion that would entitle her to modification of a prior considered custody decree. Thus, he sought dismissal of her motion.
The exception was submitted to the court on briefs, and by judgment dated March 8, 2012, the trial court maintained the exception, but granted Mrs. Purpera fifteen days to amend her motion to allege facts sufficient to meet the standard of Bergeron v. Bergeron, 492 So. 2d 1193, 1200 (La. 1986). No amendment was filed. Thus, on motion filed by Mr. Melvin, the trial court dismissed Mrs. Purpera's motion to modify custody and visitation, at her costs, by judgment dated October 10, 2012. From this judgment, Mrs. Purpera appeals.
DISCUSSION
The only issue at the trial of the peremptory exception of no cause of action is whether, on the face of the petition, accepting the well-pleaded allegations of fact as true, the plaintiff is legally entitled to the relief sought. Pinegar v. Harris, 2006-2489 (La. App. 1st Cir. 5/4/07), 961 So. 2d 1246, 1252. Because the exception of no cause of action raises a question of law and the trial court's decision is based only on the sufficiency of the petition, an appellate court conducts a de novo review. Pinegar, 961 So. 2d at 1252.
Once a considered decree of permanent custody has been rendered by a court, a party seeking to change custody must show not only that a change of circumstances materially affecting the welfare of the child has occurred, but he or she also "bears the heavy burden of proving that the continuation of the present custody 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." Gray v. Gray, 2011-548 (La. 7/1/11), 65 So. 3d 1247, 1258-1259, quoting Bergeron, 492 So. 2d at 1200.
Generally, when a court can reasonably do so, it should maintain a petition so as to afford a litigant an opportunity to present his or her evidence. However, in enunciating the heavy burden of proof for a change of custody in Bergeron, the Supreme Court reasoned that "[t]he child has at stake an interest of transcending value in a custody modification suit- his best interest and welfare- which may be irreparably damaged not only by a mistaken change in custody but also by the effects of an attempted or threatened change of custody on grounds that are less than imperative." Bergeron, 492 So. 2d at 1200. (Emphasis added). Thus, the usual tendency of the courts to maintain a cause of action gives way to a stricter interpretation of actions to modify a considered decree of custody. Menge v. Menge, 545 So. 2d 674, 676 (La. App. 5th Cir. 1989).
As noted by the trial court in its reasons for judgment in maintaining the exception, "the allegations made in this motion are of the same nature as those made in [Mrs.] Purpera's previous motion to modify custody," with both motions even containing the "same language concerning the allegations of discord in the home, derogatory comments by [Mr. Melvin], and that 'the conditions in [Mr. Melvin's] home have caused the children extreme emotional distress, perpetual fear and anxiety, and a sense of hopelessness, all of which have long term detrimental consequences for the children.'" Indeed, as recognized by the trial court in its reasons for judgment, counsel for Mrs. Purpera, in "Defendant's Amended Opposition to Exception of No Cause of Action," admits that "the allegations [of Mrs. Purpera's current motion to change custody and visitation] describe facts and behavior in the Plaintiff's home which are similar to those alleged in the prior trial." Counsel further acknowledged therein that the allegations contained in Mrs. Purpera's most recent motion are "just new allegations of similar conduct." As the trial court aptly noted, "Counsel then goes on to argue that such similarity is inconsequential, without citing any jurisprudence to support this contention." Thus, the trial court rejected Mrs. Purpera's arguments. On review, we agree that Mrs. Purpera's allegations cannot support a claim of a "change in circumstances" materially affecting the welfare of the children as required by Bergeron. Instead, these are simply reallegations of conduct and circumstances previously addressed. See Gray, 65 So. 3d at 1258-1259, and Rome v. Bruce, 09-155 (La. App. 5th Cir. 10/13/09), 27 So. 3d 885, 889.
Moreover, we agree with the trial court that, even accepting the factual allegations contained in the motion as true, they do not set forth a cause of action under the heightened burden of Bergeron, which requires that the continuation of the present custody be so deleterious to the child as to justify a modification of custody or that the harm likely to be caused by a change of environment clearly and convincingly be substantially outweighed by its advantages to the children. Although Mrs. Purpera contended that the benefits of the requested modification would clearly outweigh any detriment, we are unable to find that the motion contains factual allegations to support that conclusory statement or to afford possible relief to her under the law. See D'Aquilla v. D'Aquilla, 2003-2212 (La. App. 1st Cir. 4/2/04), 879 So. 2d 145, 148-149, writ denied, 2004-1083 (La. 6/25/04), 876 So, 2d 838, Rome, 27 So. 3d at 889, and Menge, 545 So. 2d at 675-677.
We note that in brief to this court, Mr. Melvin seeks an award of damages and attorney's fees for frivolous appeal. The recovery of damages for frivolous appeal is authorized by LSA-C.C.P. art. 2164 and Rule 2-19 of the Uniform Rules—Court of Appeal. However, LSA-C.C.P. art. 2133 specifically states that an appellee "must file an answer to the appeal" if "he demands damages against the appellant." Although an answer to an appeal is the ordinary vehicle for asserting a claim for frivolous appeal damages, the jurisprudence has also recognized an independent appeal as an alternate vehicle. Jackson National Life Insurance Company v. Kennedy-Fagan, 2003-0054 (La. App. 1st Cir. 2/6/04), 873 So. 2d 44, 51, writ denied, 2004-0600 (La. 4/23/04), 870 So. 2d 307. Mr. Melvin did not answer Mrs! Purpera's appeal or file an independent appeal to claim such damages. Therefore, his request for damages and attorney's fees for frivolous appeal is not properly before this court and, accordingly, must be denied.
--------
CONCLUSION
For the above and foregoing reasons, the trial court's October 10, 2012 judgment, dismissing Mrs. Purpera's motion to modify custody and visitation, is hereby affirmed. Costs of this appeal are assessed against Mrs. Purpera.
AFFIRMED.