Scott Joseph Fin v. Remy Baus Fin

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2019 CU 0566

SCOTT JOSEPH FIN

VERSUS

REMY BADS FIN

Judgment Rendered: BSEP 2 7 2019

On Appeal from the
20th Judicial District Court
In and for the Parish of West Feliciana
State of Louisiana
Trial Court No. 22, 762

Honorable William G. Carmichael, Judge Presiding

Deborah P. Gibbs Attorney for Plaintiff A
- ppellee,
Baton Rouge, LA Scott Joseph Fin

Natalie C. Neale Attorney for Defendant -Appellant,
Baton Rouge, LA Remy Baus Fin

BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

HIGGINBOTHAM, J.

In this child custody matter, the mother, Remy Fin, challenges a judgment of

the trial court designating the father, Scott Fin, as domiciliary parent.

FACTUAL AND PROCEDURAL HISTORY

Remy Fin and Scott Fin were married on April 16, 2006, and during their

marriage two children were born: Joseph Baus Fin (" Baus") born September 29,

2008 and Elena Eugenie Fin (" Lena") born March 20, 2010. On September 12,

2016, Scott filed a petition for divorce and for determination of incidental matters,

including a request for joint custody of the minor children and designation of him as

domiciliary parent. Remy answered the petition and filed a reconventional demand

also requesting joint custody and designation of her as the domiciliary parent.

On January 11, 2017, Remy and Scott entered into a consent judgment

awarding the parties joint custody without designation of a domiciliary parent. The

judgment also set out a holiday schedule, allowed for uninterrupted vacation time,

and provided that " all major decisions regarding the minor children shall be mutually

agreed upon by the parties including, but not limited to, changing schools for the

minor children, enrollment in school, medical decisions, and choice of third party

care providers, etc. The children shall remain at St. James until they graduate, unless

otherwise agreed to by the parties." On February 22, 2017, the parties were

divorced.

Thereafter, on October 29, 2018, Scott filed a " Rule to Modify Custody"

requesting that he be designated as domiciliary parent and that the custody schedule

be modified so that the children reside primarily with him during the school year. In

the alternative, Scott requested that he be awarded legal authority to make decisions

with regard to school enrollment for the minor children pursuant to La. R.S.

9: 335A( 3). In his rule, Scott pointed out that Baus was graduating from St. James

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in May 2019, and the parties had been unable to agree upon his school placement

after his graduation. Remy answered Scott' s rule to modify custody and filed a

reconventional demand requesting that custody of the children remain week to week,

and that she be designated as domiciliary parent. In the alternative, she requested

that she be granted the authority to make decisions regarding school enrollment for
the minor children.

Scott' s rule and Remy' s answer and reconventional demand came before the

trial court on January 22, 2019. Prior to the hearing, the parties entered into several

stipulations including: the continuation of week -to -week custody, a holiday

schedule, and that "
all major decisions regarding the children shall be discussed by

the parties including, but not limited to, changing schools for the minor children,

enrollment in school, medical decisions, and choice of third party care providers."

The parties also stipulated that the minor children should be enrolled in St. Luke' s

Episcopal School for the school year commencing August 2019.

Thus, the only issue that remained for the trial court to decide was the

designation of the domiciliary parent. After consideration of the evidence and

testimony of the witnesses, the trial court rendered judgment designating Scott as

the domiciliary parent. On February 28, 2019, the trial court signed a judgment that

included the stipulations of the parties as well as the trial court' s designation of Scott

as domiciliary parent. It is from this judgment that Remy appeals.

LAW AND ANALYSIS

In her first assignment of error, Remy contends that the trial court committed

legal error by applying the incorrect principles of law to the modification of an

existing custody decree. Specifically, Remy argues that the trial court' s failure to

determine whether a material change in circumstances has occurred since the

January 11, 2017 consent judgment before modifying the judgment constituted legal

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When a custody decree is, as herein, a stipulated or consensual judgment, a

party seeking modification of custody must prove that there has been a material

change in circumstances ( also referred to as a change in circumstances materially

affecting the welfare of the child) since the original decree, as well as prove that the

proposed modification is in the best interest of the children. See Cedotal v. Cedotal,

2005- 1524 ( La. App. 1st Cir. 11/ 4/ 05), 927 So. 2d 433, 436. As pointed out by

Justice Weimer (then Judge Weimer) in a concurrence in Shaffer v. Shaffer, 2000-

1251 ( La. App. 1st Cir. 9/ 13/ 00), 808 So. 2d 354, writ denied, 2000- 2838 ( La.

11/ 13/ 00), 774 So. 2d 151, in determining whether there is a material change in

circumstances "[
i] t is the child upon whom we must focus. Life changes may occur,

but if the changes do not have an effect on the welfare of the child, then no change

in custody is justified." Shaffer, 808 So. 2d at 360. ( Weimer J., concurring.)

On October 29, 2018 and November 8, 2018 respectively, Scott and Remy

each filed a pleading requesting that the trial court designate him or her as

domiciliary parent. As they were both seeking a modification to the January 11,

2017 consent custody judgment that did not designate a domiciliary parent, they bore

the burden of proving that there had been a change in circumstances materially

affecting the welfare of the children since the judgment; and that the proposed

modification, i.e. designation of either Remy or Scott as domiciliary parent, was in

the best interest of the minor children. See Tinsley v. Tinsley, 2016- 0891 ( La. App.

1st Cir. 1/ 18/ 17), 211 So. 3d 405, 412.

Prior to the beginning of trial, the following discussion occurred:

The Court: the last time, I think, the parties reserved their right
to ask for the -- a designation of the — I don' t think there' s
anything in the former judgment about a custodial parent.

Counsel for Scott: There' s none.

The Court: -- or domiciliary parent —

Counsel for Scott: That' s correct.

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However, the prior judgment states " Scott Joseph Fin and Remy Baus Fin are

awarded the joint custody of the two minor children, Joseph Baus Fin and Elena

Eugenie Fin, without designation of a domiciliary parent, subject to a shared

custody plan to be agreed upon by the parties, reserving to the parties the right to

seek an Implementation Plan if necessary."

Further, the trial court in rendering its decision stated:

T] here' s been a lot of testimony about how terrible you are. And there
are good reasons why I shouldn' t appoint either one of you, and there
are good reasons why both of you should be appointed the domiciliary
based on the evidence I' ve heard and my reaction to that
parent...

evidence, Scott Joseph Fin will be designated the domiciliary parent.

After consideration of the transcript, we agree with Remy' s contention that

the trial court erred in not considering whether there was a material change in

circumstances since the January 11, 2017 consent judgment. Accordingly, we

reviewed the record to determine if there has been a material change of

circumstances affecting the welfare of the children since the January 11, 2017

judgment.

During his testimony, Scott requested that he be designated as domiciliary

parent as a " fallback apparatus" to be best prepared because he felt his decision

process is very stable and structured, and he does not like to leave things that can be

dealt with to chance. Scott expressed frustration that Remy started applying to

schools for Baus without communicating or consulting with him. He acknowledged

that the parties' discussion regarding school was contentious. Scott testified that he

provides more stability for the children and is primarily the parent who takes the

children to their doctor and dentist appointments.

Remy requested that she be designated as domiciliary parent mainly because

of a lack of communication between her and Scott, and a fear that if Scott is named

domiciliary parent, she will have less access to the kids and will not have any voice

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in decisions because he is controlling and does not consult her. Remy testified

regarding an art camp that Scott signed the children up for without consulting Remy,

a disagreement on where Lena would play soccer, a missed homework assignment

on Scott' s time, communion photographs Remy was not made aware of, and that

Scott did not always facilitate— and sometimes discouraged— the children from

contacting her on his time. Remy testified that Scott has been mean and rude to her

at times.

A review of the record reveals that the catalyst for Scott' s October 29, 2018,

Rule to Modify Custody" was the parties' inability to agree on a school for Baus to

attend after he graduated from St. James. However, prior to the trial, the parties were

able to agree on a new school for both children. Scott and Remy do not always

initially agree on what is right for the children, both admit to a lack of

communication, and both have occasionally signed the children up for activities

without discussion with the other parent. Nevertheless, in every post -separation

scenario Scott and Remy discussed, they were able to eventually agree and work out

the details to do what was in the best interest of their children. The record revealed

that while the parties do not necessarily get along with each other, there was no

evidence establishing that the issues Scott and Remy complained about regarding no

designation of a domiciliary parent were materially effecting Baus or Lena.

Therefore, we find that there was no evidence of a material change in circumstances

affecting the welfare of the children since the January 11, 2017 consent judgment.

Because the first requirement formodifying the consent judgment was not

satisfied, and the required change was not shown, the inquiry ends and there is no

basis for altering the physical custody decree. See Tinsley, 211 So. 3d at 418.

Consequently, we reverse the judgment of the trial court insofar as it named Scott as

domiciliary parent.

CONCLUSION

The portion of the February 28, 2019 judgment naming Scott Finn as

domiciliary parent is reversed, and the portion of the January 11, 2017 judgment not

designating a domiciliary parent is reinstated. All costs of this appeal are to be

divided between Scott Finn and Remy Finn.

REVERSED.