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Tinsley v. Tinsley

Court of Appeals of Louisiana, First Circuit

January 18, 2017

JASON LEE TINSLEY
v.
NICOLE RENE NUGENT TINSLEY NICOLE NUGENT TINSLEY
v.
JASON L. TINSLEY

         Appealed from the The Family Court In and for the Parish of East Baton Rouge, Louisiana Trial Court Numbers: 181184 and 181199 Honorable Hunter Greene, Judge.

          Deborah P. Gibbs Baton Rouge, LA Attorney for Appellant Nicole Tinsley.

          Mark D. Plaisance Thibodaux, LA Attorney for Appellee Jason Lee Tinsley.

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          WELCH, J.

         In this child custody dispute, the mother, Nicole Renee Nugent Tinsley, appeals a trial court judgment that, among other things, modified the parties' joint custodial arrangement to award the father, Jason Lee Tinsley, equal physical custody of the minor child, as well as certain decision making authority. For the reasons that follow, we reverse the judgment insofar as it modified the physical custodial arrangement and the authority of the domiciliary parent and we affirm the trial court's decision to deny Nicole Tinsley's request for injunctive relief.

         I. FACTUAL AND PROCEDURAL HISTORY

         The parties in this matter, Nicole Tinsley and Jason Tinsley, were married on March 10, 2001, and they had one child during their marriage: K.N.T., born February 27, 2002. On July 28, 2011, Jason Tinsley filed a petition for divorce, seeking among other things, that the parties be awarded joint custody of their minor child, with each party having physical custody of the child on an equal basis, and that child support be calculated and fixed according to the child support guidelines. On July 29, 2011, Nicole Tinsley filed a petition for divorce also requesting that the parties be awarded joint custody of their minor child, that she be designated as the child's domiciliary parent, subject to specific custodial periods by Jason Tinsley, and that she be awarded child support. The two suits were subsequently consolidated in the trial court.

         The parties subsequently entered into a stipulated (or consent) judgment providing that the parties would be awarded joint custody of the minor child, that Nicole Tinsley would be designated as the domiciliary parent, and that Jason Tinsley would have physical custody of the child in accordance with a specific schedule.[1] In addition, this judgment provided that Jason Tinsley would pay child support in the amount of $830.00 per month, as well as 80% of all out-of-pocket medical expenses, tuition (including registration and required school fees), and extracurricular activities agreed upon by the parties. The trial court signed this stipulated judgment regarding child custody and support on February 6, 2012, and a judgment of divorce was rendered and signed on August 7, 2012.

         On September 28, 2012, Jason Tinsley filed a rule for modification of custody, visitation, child support, and other ancillary matters. Therein, he claimed that there had been a material change in circumstances since the February 6, 2012 consent judgment and the filing of the rule and that it was in the best interest of the minor child to modify the physical custodial schedule so that the parties would share equal physical custody of the child. In response to this rule, the parties again entered into a stipulated judgment maintaining the award of joint custody with Nicole Tinsley designated as the domiciliary parent, but modifying Jason Tinsley's physical custodial schedule.[2] The trial court signed this stipulated judgment regarding child custody and support on February 21, 2013.

         On September 16, 2014, Jason Tinsley filed another rule for change in custody. In that rule, he alleged that since the February 21, 2013 stipulated judgment, there had been a material change in circumstances affecting the welfare of the minor child and that it was in the best interest of the minor child to modify the parties joint custody arrangement such that he should be designated as the minor child's domiciliary parent subject to specific physical custodial periods in favor of Nicole Tinsley, or alternatively, that the parties share equal physical custody of the minor child. In response, on January 20, 2015, Nicole Tinsley filed an answer generally denying the allegations of Jason Tinsley's rule and a reconventional demand requesting relief on various ancillary matters, including contempt for Jason Tinsley's failure to pay His pro-rata share of tutoring, counseling fees, and school registration for the child. Thereafter, on November 17, 2015, Nicole Tinsley also sought an injunction seeking to prohibit Jason Tinsley and his wife from posting embarrassing pictures of the minor child on their social media accounts.

         After a full trial on the merits, which took place on January 21 and February 12, 2016, the trial court took the matter under advisement. On February 29, 2016, the trial court rendered judgment (with written reasons assigned) finding that Jason Tinsley had proven that there had been a material change in circumstances since the rendition of the previous custody judgment and that a modification of the parties' custodial arrangement was in the best interest of the child. Based on that factual finding, the trial court modified the parties' custodial arrangement to provide that the parties would share physical custody of the child on a week to week schedule, i.e., on a 50/50 basis. Although the trial court maintained Nicole Tinsley as the domiciliary parent, it modified her authority as the domiciliary parent by requiring the parties to mutually agree on the child's high school selection and her Attention Deficit Disorder ("ADD") treatment and medication and by granting Jason Tinsley the right to select the tutor for the minor child, with each party being responsible for their pro rata percentage of the cost of tutoring. The trial court also declined to enjoin Jason Tinsley and his new wife from posting embarrassing pictures of the minor child on social media. A judgment in conformity with the trial court's written reasons was signed by the trial court on March 15, 2016, and it is from this judgment that Nicole Tinsley has appealed.

         II. ASSIGNMENTS OF ERROR

         On appeal, Nicole Tinsley asserts that the trial court, erred in: (1) finding that a change in circumstances materially affecting the welfare of the child had occurred since the February 21, 2013 stipulated judgment of custody; (2) applying an incorrect burden of proof to Jason Tinsley; (3) failing to give proper weight to the preference expressed by the minor child; (4) finding that it was in the minor child's best interest that physical custody be modified to an alternating week schedule; (5) ordering the parties to mutually agree on high school selection and ADD treatment and medication; (6) ordering that Jason Tinsley would have the right to select tutors for the minor child; (7) failing to enjoin Jason Tinsley and his new wife from posting embarrassing photos or comments about the minor child on social media;[3] and (8) limiting the testimony of Marcia Cox, the court appointed counselor for the minor child.

         III. LAW AND DISCUSSION

         A. Modification of Physical Custody and Authority of the Domiciliary Parent

         1. General Legal Precepts: Child Custody and Domiciliary Parent

         The paramount consideration in any determination of child custody is the best interest of the child. See La. C.C. art. 131; Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, 738. If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. La. C.C. art. 132. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. Id.

         In determining the best interest of the child, La. C.C. art. 134 enumerates twelve non-exclusive factors to be considered by the trial court, which include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) 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.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the ...

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