FREDDICK LAVA MOORE, SR.
CRYSTAL ANN MOORE
Appealed from the Twenty-Second Judicial District Court In
and for the Parish of St. Tammany State of Louisiana Docket
Number 2017-10975. Honorable Dawn Amacker, Judge Presiding
Erwin Potter Counsel for Plaintiff/Appellee, Freddick Lava
Leloashia H. Taylor Counsel for Defendant/Appellant, Crystal
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
custody matter, the mother, Crystal Ann Moore, appeals from a
judgment of the trial court awarding the parties joint
custody of their minor children and designating the father,
Freddick Lava Moore, Sr., as the domiciliary parent. For the
reasons that follow, we affirm.
AND PROCEDURAL HISTORY
Ann Moore ("Crystal") and Freddick Lava Moore, Sr.,
("Freddick") were married in St. Tammany Parish in
2004 and subsequently divorced in 2017. Two minor children
were born during the marriage: N.L.M., born in 2008, and
F.L.M., born in 2012.
April of 2017, the parties entered into a "Consent
Judgment" wherein they agreed: (1) to "joint and
shared" custody of the minor children; (2) that good
grounds existed to not designate a domiciliary parent; (3)
and that the minor children would be enrolled in the
mother's school district, unless the parties agreed
otherwise. The parties also agreed to a visitation schedule
and certain provisions governing the physical custody of the
January 26, 2018, Freddick filed a petition to modify
custody, contending that since the parties entered the
consent judgment, Crystal: illegally moved the children from
St. Tammany Parish and changed residences several times,
eventually living in a homeless shelter in St. Bernard
Parish; admitted that she has driven the children with a
suspended license; lost her job and failed to attain gainful
employment to support the children; and, upon information and
belief, has a prescription drug problem. Freddick thus asked
the court to order that: (1) the children remain in their
current schools in St. Tammany Parish; and (2) he be named
2, 2018, a hearing officer conference was held on
Freddick's rule to modify custody. The parties
appeared separately, as Crystal arrived very late after the
hearing had concluded and presented conflicting stories of
circumstances and facts. Thereafter, the hearing officer
recommended that the parties maintain joint custody with
Freddick designated as the domiciliary parent, and that
Crystal be awarded custody of the children on the 1st, 2nd,
and 4th weekend of every month from Friday after school, or
5:00 p.m. if there is no school, until Monday morning when
the children are returned to school, and that the parties
share equal custody on an weekly basis, with the caveat that
should Crystal move back to St. Tammany Parish, the parties
would resume joint custody under the schedule set forth in
the consent judgment. Following Crystal's objection to the
hearing officer's recommendations, the trial court
ordered that the hearing officer's recommendations would
remain in effect pending a hearing before the trial court.
matter was heard before the trial court on June 5, 2018, and
July 19, 2018. At the commencement of the hearing, the
parties entered the following stipulations on the record: (1)
that Freddick would transfer title of the Nissan to Crystal
upon her providing proof of insurance on the vehicle; (2)
that Crystal would reimburse Freddick for all speeding
tickets and citations she received while the vehicle was in
her possession; and (3) that the parties agreed to certain
provisions regarding custody and exchange of the children
pending the conclusion of the hearing. A partial consent
judgment conforming to these stipulations was signed by the
trial court on June 26, 2018. The trial court also ordered a
series of three drug tests for Crystal, including a hair test
and instant panel test.
conclusion of the hearing, the trial court rendered a
considered decree finding that there had been a "very
significant" material change in circumstances warranting
a change from the "joint shared custody
arrangement" to a "joint custody" with
Freddick designated as the domiciliary parent and Crystal
exercising physical custody as previously recommended by the
hearing officer. The trial court further ruled that in the
event that Crystal should move back to St. Tammany Parish,
she would have to return to court to seek to change the legal
custody regime as ordered, under the appropriate burden of
proof, and that custody would not automatically revert back
to joint shared custody. The trial court signed a written
judgment conforming to its reasons on August 17, 2018.
then filed the instant appeal, contending that the trial
court erred in: (1) making a best interest determination
under LSA-C.C. art. 134 before determining whether
Freddick's petition to modify custody was properly before
the court; (2) finding that Crystal's presence in St.
Bernard Parish constituted a relocation and was therefore a
material change in circumstances materially affecting the
welfare of the minor children since implementation of the
prior custody decree; (3) finding that Crystal had issues
with opioids and/or substance abuse; (4) implementing a
physical custody order that does not assure Crystal
continuing and frequent contact with her minor children; and
(5) finding that it was in the best interest of the children
that Freddick be designated as the domiciliary parent.
child custody matters, each case must be viewed in light of
its own particular set of facts and circumstances. Major
v. Major, 2002-2131 (La.App. 1st Cir. 2/14/03), 849
So.2d 547, 550. The best interests of the child is always the
paramount consideration in determining child custody.
LSA-C.C. art. 131; Evans v. Lungrin, 97-0541,
97-0577 (La. 2/6/98), 708 So.2d 731, 738.
court's determination of a child's best interests is
usually based heavily on factual findings. Henry v.
Henry, 2008-0689 (La.App. 1st Cir. 9/23/08), 995 So.2d
643, 645. The trial court is in the best position to
ascertain the best interests of the child given the 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. Major v. Major, 849 So.2d at 550.
well settled that an appellate court cannot set aside a trial
court's factual findings in the absence of manifest error
or unless the findings are clearly wrong. Rosell v.
ESCO, 549 So.2d 840, 844 (La. 1989). If the trial
court's findings are reasonable in light of the record
reviewed in its entirety, an appellate court may not reverse
those findings even though convinced it would have weighed
the evidence differently had it been the trier of fact.
Rosell v. ESCO, 549 So.2d at 844. In order to
reverse a fact finder's determination of fact, an
appellate court must review the record in its entirety and
(1) find that a reasonable factual basis does not exist for
the finding, and (2) further determine that the record
clearly establishes that the fact finder is clearly wrong or
manifestly erroneous. Stobart v. State, Department of
Transportation and Development, 617 So.2d 880, 882 (La.
regard to issues concerning the credibility of witnesses, we
recognize where there is conflict in testimony, reasonable
evaluations of credibility and reasonable inferences of fact
made by the trial court are not to be disturbed. Olivier
v. Olivier, 2011-0579 (La.App. 1st Cir. 11/9/11), 81
So.3d 22, 28, citing Stobart v. State, Department of
Transportation and Development, 617 So.2d at 882-883.
When a fact finder is presented with two permissible views of
the evidence, the fact finder's choice between them
cannot be manifestly erroneous or clearly wrong. Stobart
v. State, Department of Transportation and Development,
617 So.2d at 883. Additionally, where the fact finder's
conclusions are based on determinations regarding the
credibility of witnesses, the manifest error standard demands
great deference to the trier of fact because only the trier
of fact can be aware of the variations in demeanor and tone
of voice that bear so heavily on the listener's
understanding and belief in what is said. Rosell v.
ESCO, 549 So.2d at 844.
cases, such as the instant case, where the underlying custody
decree is a stipulated judgment, a party seeking a
modification must prove that: (1) there has been a change in
circumstances materially affecting the welfare of the
children since the original (or previous) custody decree was
entered; and (2) that the proposed modification is in the
best interest of the children. Tinsley v. Tinsley,
2016-0891 (La.App. 1st Cir. 1/18/17), 211 So.3d 405, 412.
Thus, the burden of proof to change the consensual agreement
fell on Freddick to show that there had been a material
change of circumstances affecting the children's welfare
since the original custody decree was entered, and that the
particular proposed modification was in the best interest of
the children. See Harang v. Ponder, 2009-2182
(La.App. 1st Cir. 3/26/10), 36 So.3d 954, 961, writ
denied, 2010-0926 (La. 5/19/10), 36 So.3d 219.
determining whether a proposed modification is in the best
interest of a child, LSA-C.C. art. 134(A) enumerates the
following non-exclusive factors to be considered by the
(1) The potential for the child to be abused, as defined by
Children's Code Article 603, which shall be the primary
(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
(5) The length of time the child has lived in a stable,
adequate environment, and the desirability of maintaining