Appeal from the 21st Judicial District Court, Parish of
Livingston, State of Louisiana Trial Court No. 144618 The
Honorable Jeffrey Oglesbee, Judge Presiding
D. Plaisance Thibodaux, Louisiana Attorney for Plaintiff/
Appellant, Carmen Mikelyn (Bums) Hawkins.
E. Bankston Livingston, Louisiana Attorney for Defendant/
Appellee, Robert Arthur Bums, II.
BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
child custody dispute, the mother, Carmen Hawkins (formerly
Burns), appeals a judgment that modifies the parties'
joint custody arrangement to name the father, Robert Arthur
Burns II, as the domiciliary parent, and changes an
equal-sharing physical custody schedule to one where the
mother has physical custody only on alternating weekends and
one night every other week. We reverse and remand.
Hawkins and Robert Burns divorced in May 2014. They are the
parents of two children, born September 28, 2004, and October
26, 2005. In connection with their divorce, Hawkins and Burns
agreed to joint custody of the children, with Hawkins named
the domiciliary parent. They further agreed to exercise
physical custody in accordance with an alternating
"two/two/three plan, " alternating weekends, and
further alternating Mondays and Tuesdays, and Wednesdays and
Thursdays. A consent judgment was signed May 20,
2014, in accordance with the parties' agreement.
2016, Burns filed a motion to modify custody, seeking to
change the joint custody plan and have himself designated the
domiciliary parent. He alleged the change was warranted
because Hawkins moved with the children into her
boyfriend's residence and often left the children
"with random people while she attend[ed] events with her
boyfriend." Burns asserted that it was in the
children's best interest to reside primarily with him.
hearing on the motion was held on September 29, 2016. Burns,
his current wife, and Hawkins testified, and evidence was
introduced. At the conclusion of the hearing, the trial court
commented that the "two/two/three schedule [was not] in
the benefit of - of anybody, not the children and not the
parents." The trial court said a change of custody
required a material change in circumstances, and noted the
parties previously agreed that upon remarriage, either party
could seek modification of custody or visitation in
accordance with the law. The trial court found a modification
warranted because Burns remarried, Hawkins was engaged, and
"the parties both agree that the two/two/three schedule
is not workable at this time." After weighing the
factors in Louisiana Civil Code article 134, the trial court
determined it was in the children's best interest that
joint custody continue, but with Burns as the domiciliary
parent and Hawkins exercising physical custody during the
school year on alternating weekends and alternating Wednesday
nights. A custody schedule for the summer months and holidays
was created, and a judgment was signed on November 3, 2016.
appeals, alleging the trial court committed legal error by
applying the wrong burden of proof, requiring only a material
change in circumstances rather than a material change in
circumstances affecting the welfare of the children.
She further contends Burns' remarriage is not a material
change in circumstances affecting the welfare of the children
and there is insufficient evidence to support a modification
of the custody arrangement.
parties consent to a custodial arrangement and a consent
decree or stipulated judgment is rendered, a party seeking to
modify the custody plan is required to prove (1) a change in
circumstances materially affecting the welfare of the
children, and (2) the proposed modification is in the best
interest of the children. Tinsley v. Tinsley,
16-0891 (La.App. 1 Cir. 1/18/17), 211 So.3d 405, 412. The
trial court's determination regarding the required change
in circumstances is based heavily on factual findings and
cannot be set aside in the absence of manifest error or
unless it is clearly wrong. See Tinsley, 211 So.3d
at 415; Bonnecarrere v. Bonnecarrere, 09-1647
(La.App. 1 Cir. 4/14/10), 37 So.3d 1038, 1044, writ
denied, 10-1639 (La. 8/11/10), 42 So.3d 381. However,
where one or more legal errors interdict the fact-finding
process, the appellate court must perform a de novo
review of the record. Evans v. Lungrin, 97-0541 (La.
2/6/98), 708 So.2d 731, 735.
support of her contention that the trial court committed
legal error by applying an incorrect burden of proof, Hawkins
points to oral reasons for judgment where the trial court
concluded that a change in custody depended upon a finding
"that a material change in circumstances has occurred,
" omitting "the 'material change in
circumstances affecting the welfare of the child' burden
required by this circuit." Hawkins cites
Tinsley for the proposition that to change a consent
custody decree, the proponent of the change must prove (1) a
material change in circumstances, and (2) the change affects
the welfare of the child. While ...