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Beckman v. Coon Devillier

Court of Appeals of Louisiana, Second Circuit

April 3, 2019

LESLIE N. BECKMAN AND BRUCE M. BECKMAN Plaintiffs-Appellees
v.
TARA RHEANNON COON DEVILLIER AND ERIC DAVID DEVILLIER Defendants-Appellants

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 589884 Honorable Roy L. Brun, Judge

          KAMMER & HUCKABAY, LTD (A.P.L.C.) By: Charles H. Kammer, III Counsel for Appellant, Tara Rheannon Coon Devillier

          ERIC DAVID DEVILLIER In Proper Person

          JOSEPH WILLIAM HENDRIX Counsel for Appellees, Leslie N. and Bruce M. Beckman

          Before MOORE, STONE, and BLEICH (Pro Tempore), JJ.

          BLEICH, J. (Pro Tempore), concurs in part and dissents in part with written reasons.

          STONE, J.

         In this custody dispute, appellant, Tara Rheannon Coon Devillier, seeks the reversal of the trial court judgment that granted sole custody of her two children to the maternal grandparents, appellees, Leslie N. Beckman and Bruce M. Beckman, and found her in contempt of court for failure to pay child support and for violating a court order which prohibited the presence of members of the opposite sex during her exercise of visitation.

         For the following reasons, we affirm that portion of the trial court judgment that awards sole custody of the two children to the appellees, and finds the appellant in contempt for allowing a member of the opposite sex to be present during her exercise of visitation. We reverse that portion of the trial court judgment which found the appellant in contempt for failure to pay child support.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         This appeal arises from litigation initiated by the maternal grandparents, Leslie N. Beckman ("Leslie") and Bruce M. Beckman ("Bruce") (collectively referred to as the "Beckmans"), seeking custody of their maternal grandchildren, A.C.D. and A.G.D. Tara Rheannon Coon Devillier ("Rheannon")[1] and Eric David Devillier ("Eric") (collectively known as the "Devilliers") are the natural parents of A.C.D. and A.G.D.

         On December 21, 2015, Leslie filed a petition for protection from abuse in the Juvenile Court of Caddo Parish wherein she alleged a myriad of concerns regarding the care of A.C.D. and A.G.D. In her petition, Leslie alleged that both parents of the minor children were using illegal drugs, including medications prescribed to the children; that the utilities in the home were no longer in service; that the mother failed to comply with the medical care for her developmentally delayed child; that the home contained black mold and feces; that Eric possessed an explosive temper which scared one of the children; and that both parents have tested positive for work-related drug screenings. On December 23, 2015, an order of protection was rendered in the proceedings, granting Leslie temporary custody of A.C.D and A.G.D. through January 7, 2016.

         On January 7, 2016, the Beckmans and the Devilliers filed a joint motion to establish child custody by consent of the parties in which all parties agreed to grant custody of A.C.D. and A.G.D. to the Beckmans. On January 14, 2016, judgment on the joint motion was rendered which, inter alia, granted custody of A.C.D. and A.G.D. to the Beckmans; required the Devilliers to submit to random drug screenings at the request of the Beckmans; granted supervised visitation to the Devilliers until they have tested negative for all nonprescription drugs; ordered substance abuse treatment for the Devilliers; required the Devilliers to deposit $440 per month in an account established by the Beckmans for child support; and stipulated that this matter may be reviewed by any party after January 1, 2017.

         On January 10, 2017, Rheannon filed a rule for custody seeking the reinstatement of her parental rights, as well as sole custody of A.C.D. and A.G.D. Subsequently, on March 14, 2017, the Beckmans also filed a rule for custody where they alleged the extensive medical needs of the minor children; the Devilliers' failure to provide proper medical care; A.C.D.'s controlled, schedule II stimulant medication unaccounted for after visitation with Rheannon; the unkempt condition of Rheannon's home; and the child support arrears in the amount of $2, 398.47.

         After a hearing on May 30, 2017, an interim order was issued allowing the Beckmans to maintain sole custody of A.C.D. and A.G.D. and awarding Rheannon visitation every other weekend. Additionally, the interim order held Rheannon in contempt of court for failure to pay child support and ordered her to pay $421.21 per week in an attempt to purge the arrears; prohibited the presence of any boyfriends during Rheannon's visitation with A.C.D. and A.G.D.; required Rheannon to submit to random drug screenings upon demand by the Beckmans; required the Beckmans to provide school and medical information to Rheannon; and provided that this matter may be reviewed in four months.

         On October 10, 2017, four months after the interim order was issued, Rheannon filed a motion and order to set rule date seeking a review of the interim order, alleging that she has successfully complied with the requirements set forth by the judgment and the Beckmans. After a hearing on November 9, 2017, the trial court issued an interim order which increased visitation to Wednesday after school until Friday morning before school in addition to every other weekend.

         Further, the interim order prohibited the presence of any boyfriends or members of the opposite sex, not related by blood or marriage, during Rheannon's visitation with A.C.D. and A.G.D.; provided the terms of visitation on holidays and during summer months; and allowed the Beckmans the right of first refusal to babysit while A.C.D. and A.G.D. are in Rheannon's custody in the event a babysitter is needed for a period of two hours or greater.

         On January 8, 2018, the trial court issued an immediate income assignment order for child support directing Rheannon's employer to withhold $1, 608.58 a month and a past due amount of $5, 980.88 through weekly payments of $421.21.[2] On April 30, 2018, the Beckmans filed a rule for sole custody, to modify visitation, to reset all of plaintiff's motions, and for contempt ("Rule for Sole Custody") seeking sole custody of A.C.D. and A.G.D. and to modify the terms of visitation with Rheannon. In the rule for sole custody, the Beckmans alleged that the minor children were experiencing significant behavioral, medical, and emotional problems as a result of the increase in visitation.

         The trial took place on June 6, 2018, where testimony was heard by the court. Rheannon offered her own testimony; as well as the testimony of her Alcoholics Anonymous sponsor, Gina Jenkins; licensed professional counselor, Dr. Mickey Jones; and longtime friend, Rebecca Harper. Similarly, the Beckmans offered the testimony of Leslie and Dr. Mickey Jones. At the conclusion of the trial, the trial court rendered judgment awarding the Beckmans sole custody of A.C.D. and A.G.D., and awarding Rheannon visitation every other weekend.

         In addition, the judgment set forth the terms of visitation during the Christmas and Thanksgiving holidays, and spring and summer breaks; found Rheannon in contempt of court for failure to pay child support in arrears of $1, 608.58 and for allowing the presence of Kenneth Jenkins during Rheannon's exercise of visitation with the children; and prohibited any means of communication with Kenneth Jenkins. This appeal ensued.

         DISCUSSION

         On appeal, Rheannon cites several assignments of error regarding the trial court's custody award; however, we find that, fundamentally, the substance of each assignment of error is dependent upon whether the trial court erred in awarding sole custody of the children to the Beckmans. After a careful review of the record, we cannot conclude that the trial court abused its discretion in awarding sole custody of A.C.D. and A.G.D. to the Beckmans.

         Standard of Review

         The trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Galjour v. Harris, 2000-2696 (La.App. 1 Cir. 3/28/01), 795 So.2d 350, 354, writ denied, 2001-1238 (La. 6/1/01), 793 So.2d 1229, writ denied, 2001-1273 (La. 6/1/01), 793 So.2d 1230. The determination of the trial judge in child custody matters is entitled to great weight, and his or her discretion will not be disturbed on review in the absence of a clear showing of abuse. See Leard v. Schenker, 2006-1116 (La. 6/16/06), 931 So.2d 355, quoting AEB v. JBE, 99-2668 (La. 11/30/99), 752 So.2d 756.

         Custody Award

         A parent has the paramount right to the custody of her child and may be deprived of that custody only when there are compelling reasons. Wood v. Beard, 290 So.2d 675 (La. 1974). In Tracie F. v. Francisco D., 2015-1812 (La. 3/15/16), 188 So.3d 231, the Louisiana Supreme Court set forth the standard and burden of proof when a biological parent seeks greater custodial rights and seeks to modify a stipulated custody award, stating:

[W]e hold that the overarching inquiry in an action to change custody is "the best interest of the child." Moreover, consistent with our prior jurisprudence regarding stipulated custody awards, we further hold that a biological parent with joint custody, who seeks modification of a stipulated custody award to obtain greater custodial rights, must prove: (1) there has been a material change in circumstances after the original custody award; and (2) the proposed modification is in the best interest of the child. See also Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731; Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986).

         In this case, the initial custody award was a stipulated judgment in which Rheannon voluntarily consented to the Beckmans having custody of A.C.D. and A.G.D. With this in mind, once Rheannon sought to modify the prior stipulated judgment, at trial, she had the burden of proving that (1) there has been a material change in circumstances after the original custody award; and (2) the proposed modification is in the best interest of the child.

         We first consider the best interest of A.C.D. and A.G.D., as this is the overarching inquiry and paramount consideration of this appeal. The best interest of the child is the guiding principle in all custody determinations. The factors set forth in La. Civ. Code art. 134 for determining the best interest of the child "should be followed in actions to change custody, as well as in those to fix it initially." Tracie F. v. Francisco D., 2015-1812 (La. 3/15/16), 188 So.3d 231; see also La. C. C. arts. 131, 134; Mills v. Wilkerson, 34, 694 (La.App. 2 Cir. 3/26/01), 785 So.2d 69; Street v. May, 35, 589 (La.App. 2 Cir. 12/5/01), 803 So.2d 312.

         As listed in La. C. C. art. 134, the factors for ascertaining the best interest are as follows:

         The court shall consider all relevant factors in determining the best interest of the child, including:

(1) The potential for the child to be abused, as defined by Children's Code Article 603, [3] which shall be the primary consideration.
(2) The love, affection, and other emotional ties between each party and the child.
(3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(7) The moral fitness of each party, insofar as it affects the ...

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