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O'Neal v. Addis

Court of Appeals of Louisiana, Second Circuit

September 26, 2018

TIFFANY O'NEAL Plaintiff-Appellant
v.
BRANDON ADDIS Defendant-Appellee

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 582, 929, Honorable Charles G. Tutt, Judge.

          BREEDLOVE LAW FIRM By: Pamela N. Breedlove Counsel for Appellant.

          SUSAN D. SCOTT Counsel for Appellee.

          Before BROWN, MOORE, and GARRETT, JJ.

          BROWN, C.J.

         Plaintiff, Tiffany O'Neal ("the mother"), appeals from a judgment denying a modification of custody for her daughter, HLA. The mother has shared custody with HLA's father, Defendant, Brandon Addis ("the father"), under a shared joint custody implementation plan previously rendered with a consent judgment. The mother seeks joint custody with her named as domiciliary parent. For the following reasons, we affirm in part, reverse in part, and remand.

         FACTS AND PROCEDURAL HISTORY

         The mother filed a petition to establish custody on February 26, 2015, for HLA (DOB: September 11, 2011). A consent judgment was entered on April 15, 2015, providing for shared custody of HLA rotating on a weekly basis. The mother filed two rules for contempt for noncompliance with the joint custody plan against the father and then filed a rule to modify custody on September 15, 2016.

         In the rule to modify custody, the mother alleged that there had been material changes in circumstances warranting a modification of custody. Specifically, the mother asserted that: 1) the father refused to communicate with the mother regarding school choice for HLA and refused to pay preschool expenses; 2) the father leaves HLA with his mother much of the time during his custody periods; and, 3) the father refuses to share in the expenses for the minor child, and child support needs to be set. The mother intended at that time to move to Dallas, Texas, at the conclusion of her education to become a nurse practitioner, [1] and she wanted to be named as HLA's domiciliary parent.

         The court issued an interim order signed on November 30, 2016. The trial court continued the shared custody arrangement and appointed Shelley Booker to conduct a mental health evaluation of the parties and HLA and to submit a written report to the court. Ms. Booker completed her report in May of 2017.[2] The trial court held a hearing on November 16, 2017.

         At the hearing, the father testified that, when the original custody plan was set, he lived with his parents in Bossier Parish. The father moved to West Monroe for work in May/June 2017 without telling the mother. The father has a managerial position at a restaurant in West Monroe and has a varying work schedule that involves working nights and weekends, in addition to days. He also works as a referee at high school football games. HLA stays with her paternal grandparents in Haughton during the father's custodial periods, and he travels back and forth from West Monroe to Haughton to see his daughter as his work and referee schedules allow.

         The father testified that he did not take HLA to Young Years preschool every day when he had custody of her, and he did not discuss with the mother what elementary school HLA should attend, even after the mother requested his input. The father testified that he was not always able to participate in HLA's school events, but his mother would attend instead. He also stated that he assisted HLA in a school project regarding HLA's family tree wherein he included his then-girlfriend, but not the mother. The father stated that he and the mother communicate mostly through text messages. The father gets benefits with his work, but at the time of the hearing, he had not added HLA to his health insurance. The father also testified that he wants to be able to claim HLA on his taxes.

         The mother married her current husband ("the stepfather") about four months prior to the hearing. The stepfather testified at the hearing about his conviction in federal court for possession of methamphetamine[3] and the time he served in federal prison for that offense. At the time of the hearing, HLA's stepfather was on probation for the possession offense. He also testified about prior arrests. HLA's stepfather began dating the mother five months after he was released from prison.

         The mother testified that she completed her schooling to become a nurse practitioner in December 2016. At the time of the hearing, she was working as a registered nurse because she could not find work as a nurse practitioner in the Shreveport job market. The mother testified that she did not tell the father that she was going to have HLA tested for the magnet school program prior to HLA being tested. She also testified that she made the decision about where to place HLA for preschool and elementary school after trying to get the father's input.

         The mother testified that she thinks she and the father need to have better communication. The mother stated that there have been times when the father is exercising his week of custody, and, in order for the mother to find out why HLA was not at preschool, she had to call the paternal grandmother to find out what was going on. The mother stated that HLA is living a split life in which there is little consistency between each half. The mother sought joint custody with her named as domiciliary parent and the father exercising custody on alternating weekends. The mother testified that she was aware that the father worked Saturdays and Sundays when proposing that custody arrangement.

         At the hearing, the judge stated that the child was leading separate lives with each parent because the mother and the father were not communicating with each other. The trial judge pointed out that the mother and the father do not really know each other. The judge opined that the father living in West Monroe and the father's week of custody with HLA being mostly exercised by the paternal grandmother could be a problem. The trial judge stated that the parents agreed to joint custody of HLA, and observed that the reasons for the mother wanting to modify the custody arrangement had to do with HLA's homework and HLA living with her paternal grandmother. The best interest of the child factors still favor joint custody in this case.

         The trial court maintained the week on-week off custody arrangement and ordered the parents to attend parenting classes and register and communicate through the Our Family Wizard program instead of through text messages. The court ordered the father to pay for half of HLA's health insurance costs and school fees. The trial court ordered the family to return to the court for a progress review hearing six months later.

         The shared joint custody implementation plan was signed by the court on December 8, 2017. The plan provided for week on/week off shared custody with neither parent named as domiciliary parent. The plan provided a holiday and summer custody schedule with each parent providing HLA with unlimited telephone access to the other parent. The parents were ordered to exchange all medical information regarding the child with each other. Other provisions were made for accessing HLA's educational information, progress and calendar and HLA's transportation. The mother has appealed from the court's ruling, assigning the following errors:

1. Whether the trial court erred in holding the mother to a higher standard due to a prior consent judgment to shared custody prior to the child starting school.
2. Whether the trial court erred in holding the mother to a higher standard due to a prior consent judgment to shared custody prior ...

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