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Moore v. Moore

Court of Appeals of Louisiana, First Circuit

May 1, 2019

FREDDICK LAVA MOORE, SR.
v.
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

          Andrea Erwin Potter Counsel for Plaintiff/Appellee, Freddick Lava Moore, Sr.

          Leloashia H. Taylor Counsel for Defendant/Appellant, Crystal Ann Moore

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         Crystal 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.[1]

         In April of 2017, the parties entered into a "Consent Judgment" wherein they agreed: (1) to "joint and shared" custody of the minor children;[2] (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 children.

         On 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 domiciliary parent.

         On May 2, 2018, a hearing officer conference was held on Freddick's rule to modify custody.[3] 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.[4] 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.

         The 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.[5]

         At the 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.

         Crystal 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.

         DISCUSSION

         In 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.

         A trial 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.

         It is 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. 1993).

         With 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.

         In 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.

         In 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 court:[6]

(1) The potential for the child to be abused, as defined by Children's Code Article 603, 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 ...

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