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Burns v. Burns

Court of Appeals of Louisiana, First Circuit

November 3, 2017

CARMEN MIKELYN BURNS
v.
ROBERT ARTHUR BURNS, II

         On Appeal from the 21st Judicial District Court, Parish of Livingston, State of Louisiana Trial Court No. 144618 The Honorable Jeffrey Oglesbee, Judge Presiding

          Mark D. Plaisance Thibodaux, Louisiana Attorney for Plaintiff/ Appellant, Carmen Mikelyn (Bums) Hawkins.

          Wyman E. Bankston Livingston, Louisiana Attorney for Defendant/ Appellee, Robert Arthur Bums, II.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         In this 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.

         FACTS

         Carmen 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.[1] A consent judgment was signed May 20, 2014, in accordance with the parties' agreement.

         In June 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.

         A 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.

         Hawkins 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.

         DISCUSSION

         Where 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.

         In 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 ...


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