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Miller v. Dicherry

Court of Appeals of Louisiana, First Circuit

May 29, 2018

NICHOLAS MILLER
v.
TEAL DICHERRY

          On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana Docket No. 110, 689 Honorable Jason Verdigets, Judge Presiding

          Brian J. Prendergast Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Nicholas Miller.

          Natalie T. Robertson Baton Rouge, Louisiana Counsel for Defendant/ Appellant Teal Dicharry.

          Teal Dicharry Baton Rouge, Louisiana Defendant/ Appellant Pro Se.

          BEFORE: McCLENDON, WELCH, AND THE RIOT, JJ.

          McCLENDON, J.

         A mother appeals a trial court judgment that maintained a 50/50 custody arrangement with the child's father, granted the child's father authority to make medical decisions, and ordered the child be vaccinated. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         Teal Dicharry[1] and Nicholas Miller are the parents of the minor child, H.M. After the parents' relationship ended, Mr. Miller, on August 1, 2014, filed a petition that sought to set custody and support. The parties stipulated to a joint custody arrangement, which designated Ms. Dicharry as the domiciliary parent and granted Mr. Miller physical custody on alternating weekends and a four-hour visit once per month. Following various motions by the parties, the trial court eventually issued a ruling that maintained Ms. Dicharry as domiciliary parent, but granted joint custody of the minor child with physical custody to be shared equally. The ruling granting Mr. Miller joint custody was affirmed by this court in Miller v. Dicherry, 17-0699 (La.App. 1 Or. 9/27/17) (unpublished opinion) 2017 WL 4314358.

         On March 29, 2017, Mr. Miller filed a motion to modify the joint custody order wherein he sought, among other things, to be designated the domiciliary parent. Mr. Miller indicated that he requested to be named domiciliary parent in order to make medical decisions for H.M.

         On July 12, 2017, Ms. Dicharry filed a rule to modify visitation and child support, a motion for contempt, and a motion for a joint custody implementation plan. In her motions, Ms. Dicharry sought, among other things, modification of the 50/50 equal sharing to limit Mr. Miller's exercise of physical custody to every other weekend.

         Following a hearing on August 7, 2017 in which the parties' motions were considered, the trial court issued both written reasons for judgment and a judgment on September 15, 2017. In its judgment, the trial court maintained the 50/50 custody arrangement with Ms. Dicharry as domiciliary parent, but ordered that Mr. Miller would have full authority to make medical decisions and ordered that H.M. be vaccinated. Ms. Dicharry has appealed assigning the following as error:

1. The district court erred by not finding that Mr. Miller resides in Texas and allowing him to continue the 50/50 custody arrangement[.]
2. The district court erred by granting Mr. Miller the right to make medical decisions and ordering that the parties' minor child be vaccinated.

         The parties have filed multiple pleadings with the trial court since the rendition of the September 15, 2017 judgment. However, none of the pleadings filed or rulings made have affected the issues currently before this court on appeal.[2]

         DISCUSSION

         In her first assignment of error, Ms. Dicharry contends that the trial court erred in allowing the 50/50 custody arrangement to continue because Mr. Miller lives, works, and resides in Texas. Ms. Dicharry avers that Mr. Miller never provided verification from his employer to show when he is off from work and that he will be able to exercise physical custody in Louisiana. Ms. Dicharry avers that Mr. Miller, in accordance with past practice, will likely bring H.M. to Texas during his custodial week.

         The paramount consideration in any determination of child custody is the best interest of the child. LSA-C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Id.; Major v. Major, 02-2131 (La.App. 1 Cir. 2/14/03), 849 So.2d 547, 551. By contrast, an uncontested decree in which no evidence is presented as to the fitness of the parents is not a considered decree. Major, 849 So.2d at 552. When a trial court has made a considered decree of permanent custody, the party seeking a change 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 the change of environment is substantially outweighed by its advantages to the child." Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La. 1986). "Although the trial court retains a continuing power to modify a child custody order, there must be a showing of a change in circumstances materially affecting the welfare of the child before the court may consider making a significant change in the custody order." Bergeron, 492 So.2d at 1194.

         It is a well-recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Major, 849 So.2d at 550. Every child custody case must be viewed within its own peculiar set of facts. Id. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Id.

         The trial court noted that it rendered a considered decree of custody on August 9, 2016. Accordingly, the trial court recognized that the heightened standard enunciated in Bergeron applied. In its reasons for judgment, the trial court found that Mr. Miller had been temporarily living in Texas during a training program for his employment. However, the trial court also noted that Mr. Miller indicated that once his training period - which was near completion - was over, and assuming he was hired by the company, he would be working on a week on/week off rotation in Texas. Mr. Miller testified that he would be able to spend his custodial week in Louisiana and work in Texas during his non-custodial week. Because Mr. Miller could exercise physical custody of H.M. in Louisiana, the trial court did not find a material change in circumstances to warrant changing its prior 50/50 custody order.

         The trial court also acknowledged Ms. Dicharry's concerns about H.M. traveling to Texas and set limitations to alleviate those concerns. Specifically, the trial court ordered that physical custody be exercised in Louisiana. Additionally, the trial court ordered that if Mr. Miller was "called to work in Texas during his custodial period, Mr. Miller will give the right of first refusal to Ms. Dicharry." Considering the foregoing, we cannot conclude that the trial court was manifestly erroneous in its factual determination, nor did it abuse its discretion in declining to change its prior custody order. Accordingly, Ms. Dicharry's first assignment of error is without merit.

         In her second assignment of error, Ms. Dicharry contends that the trial court erred by granting Mr. Miller, the non-domiciliary parent, the right to make medical decisions and ordering immunizations for H.M. Ms. Dicharry notes that she has always been the domiciliary parent and her decisions are presumed to be in the best interest of the child, and Mr. Miller must demonstrate otherwise. See LSA-R.S. 9:335(B)(3).[3] Ms. Dicharry avers the mere fact that she is opposed to immunizations was not sufficient grounds to warrant granting Mr. Miller the right to make medical decisions.[4] Ms. Dicharry contends that the trial court did not find that her refusal to vaccinate ...


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