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Boesch v. Boesch

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

KELLY W. BOESCH
v.
DEBORAH SYLVESTER BOESCH

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 654-966, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, KELLY W. BOESCH Phyllis C. Coci

          COUNSEL FOR DEFENDANT/APPELLEE, DEBORAH SYLVESTER BOESCH Kristyl R. Treadaway

          Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg

         AFFIRMED

         HJL

         JGG

         RMM

          HANS J. LILJEBERG JUDGE

         In this child custody proceeding, the father appeals the trial court's judgment granting the mother's Rule to Modify Child Custody and awarding the parties joint custody, with the mother named as the domiciliary parent. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The parties, Kelly Boesch ("Kelly") and Deborah Boesch Corb ("Deborah"), were married on February 26, 2000. During their marriage, the parties had two children: Christian, born January 28, 2003; and Jaden, born April 1, 2005. Kelly filed for divorce in January of 2008, and a judgment of divorce was rendered on March 20, 2009.

         After a custody evaluation was performed, the parties entered into a consent judgment on December 16, 2008, which provided that the parties would have joint custody of the children, with both parents designated as co-domiciliary parents. Under their agreement, the children would live with the father, Kelly, and the mother, Deborah, would have visitation on her days off from work. Deborah was on active duty with the United States Air Force at that time.

         On November 30, 2009, the parties entered into a second consent judgment, which provided that upon Deborah's release from the military, the parties would continue to have joint custody of the children, with both designated as co-domiciliary parents, but with the parties having 50/50 shared custody on a week-to-week basis.

         On May 13, 2013, Deborah filed a Rule to Modify Child Custody, asserting that there had been a material change in circumstances to justify a custody modification, and that the shared physical custody schedule was no longer in the best interest of the children. In her pleading, Deborah requested that she be designated as the primary domiciliary parent and that the children reside with her, subject to visitation with Kelly every other weekend.

         Deborah set forth several assertions in support of her claim that a material change in circumstances had occurred. She noted that she was no longer in the military, had remarried, and was a stay-at-home mom, with much more time to care for the children, assist with their medical needs and hygiene, and provide a balanced diet. She claimed that she provided the children with a stable environment, whereas Kelly allowed the children to live in chaos and watch excessive television, which resulted in their failure to complete homework and caused stress and confusion for the children. Deborah further asserted that the parties' son, Christian, had started exhibiting behavioral problems at school, including bullying, which she believed was correlated with Kelly's "lack of parenting skills and poor example." She further raised issues pertaining to the children's hygiene during their time with Kelly. Finally, Deborah set forth several reasons why Kelly "makes it impossible" to co-parent the minor children, including that Kelly is hostile and bitter over their divorce and her remarriage, that Kelly refuses to administer Christian's allergy medicine, and that the parties cannot agree on a primary physician for the children, as well as other issues.

         On May 30, 2013, Kelly filed an Opposition to Deborah's Rule to Modify Child Custody, arguing that no material change in circumstances had occurred since the November 30, 2009 consent judgment. He further asserted that he and the children are "very bonded" and that he provides a stable and loving home for them. Kelly also denied failing to appropriately attend to the children's hygiene and homework, and he denied allowing them to watch excessive amounts of television. Finally, in his opposition, Kelly asserted that Deborah wants him to medicate Christian when he is not sick, Deborah's husband threatens the children with corporal punishment, and Deborah does not foster a relationship between him and the children.

         On June 7, 2013, the parties agreed to have Gail Pesses, M.S.W., L.C.S.W., perform an updated custody evaluation.[1] On December 9, 2013, Ms. Pesses completed her updated evaluation, recommending that the parties should have joint custody, with Deborah designated as the domiciliary parent. She recommended that the children live primarily with Deborah and have visitation with Kelly every other weekend from Thursday after school until Sunday night, and on Tuesdays after school when he has not had visitation the weekend before. Ms. Pesses made several additional recommendations pertaining to medical treatment, a holiday schedule, and other issues.

         On January 31, 2014, the domestic hearing officer recommended that the court adopt Ms. Pesses' recommendations until there was a ruling on Deborah's Rule to Modify Custody. This became an interim order of the court.

         On June 24, 2014, Deborah filed a Motion for Updated Child Custody Evaluation, which was granted by the trial court. Thereafter, on March 26, 2015, Deborah filed a Motion to Set Custody Trial and Amended Rule, requesting sole custody of ...


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