Lance Boudreaux v. Carley Webster

STATE OF LOUISIANA
tys

COURT OF APPEAL

FIRST CIRCUIT

2022 CU 1282

LANCE BOUDREAUX

VERSUS

JudgmentJudgment Rendered:Rendered:

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STATESTATE OFOF LOUISIANA LOUISIANA
DOCKETDOCKET NUMBER NUMBER 7923079230

VincentVincent A.A. SaffiottiSaffiotti AttorneysAttorneys forfor PlaintiffPlaintiff
- -AppellantAppellant
NatalieNatalie C.C. NealeNeale LanceLance BoudreauxBoudreaux
BatonBaton Rouge,Rouge, LALA

NicoleNicole DufreneDufrene StrevaStreva AttorneyAttorney forfor DefendantDefendant
- - AppelleeAppellee
MorganMorgan City,City, LALA CarleyCarley WebsterWebster

BEFORE:BEFORE: McCLENDON,McCLENDON, HOLDRIDGE,HOLDRIDGE, ANDAND GREENE,GREENE, J.J.

GREENE, J.

In this custody case, the father appeals a judgment that designated the mother

d father as co -domiciliary parents of the minor child, continued joint custody anV

weekly rotating physical custody, and decided other matters including selecting a

daycare for the minor child to attend near the mother. After review, we reverse in

part, amend in part, affirm in part, and remand the case for a hearing.

IVANEM11 01111W

Lance Boudreaux and Carley Webster had a romantic relationship and are the

parents of one child, Wyatt Paul Webster, born on August 18, 2019, in Thibodaux,

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NOTM. E RKIRINFIVIlm Il, 1 11M

Mr. Boudreaux lives in White Castle and Ms. Webster lives in Morgan City.

Ms. Webster has changed jobs several times in the last five years. She worked

Baton Rouge General Hospital in Baton Rouge, then moved to Kaplan' to work in a

pediatrician' s office, and then moved back to Morgan City. She testified at trial that

she worked in a bar three nights a week when she did not have physical custody, and

that she was keeping her options open, but would rather be a stay at home mother

than look for another job. She also testified that she had taken five nursing classes

online at Baton Rouge Community College in the Spring of 2022. In 2021 and

earlier in 2022, Ms. Webster had worked part-time posting nude photos of herself

on an adult website for compensation. She lives in her father' s home in Morgan

City. Her father, who works offshore, pays the household bills. When she needs a

babysitter, her mother, who also lives in Morgan City, babysits.

Mr. Boudreaux has worked as a welder at plants since the age of 18. At the

The hearing officer found that the move to Kaplan by Ms. Webster violated the relocation statutes. See
La. R.S. 9: 355. 1, et seq. Ms. Webster moved to Kaplan and enrolled Wyatt in daycare there without
consulting Mr. Boudreaux.
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home and pays his own bills. He testified that on work days he gets ready for work,

then brings Wyatt next door to his parents' house. His parents, who are retired, take

care of Wyatt while he is at work. He and Wyatt eat dinner with Mr. Boudreaux' s

parents after work and then go home. He testified that when he works turnarounds

at the plants, he works nights and his parents keep Wyatt for him.

The parties previously entered into a stipulated judgment on February 27,

2020, which awarded the parties joint custody, with Ms. Webster designated as the

domiciliary parent without prejudice to either party to seek modification of custody,

set child support at $ 1, 000.00 per month without prejudice to either party to seek

modification, and decided other matters. The parties entered into another stipulated

judgment on May 13, 2020, providing for alternate weekend visitation for Mr.

Thereafter, Mr. Boudreaux filed a rule to modify custody, and Ms. Webster

answered and reconvened, asking, in part, that the amount of monthly child support

be modified. The matter was heard on June 14, 2021, and the parties entered into

another stipulated judgment, which was signed by the trial court on October 21,

2021. This stipulated judgment provided for joint custody with equal shared

physical custody on a 2- 2- 5- 5 rotating schedule, and continued Ms. Webster as the

domiciliary parent without prejudice to the rights of either party to seek a

redetermination without having to show a change in circumstances. The stipulated

judgment provided a detailed holiday schedule, provided for exchanges of Wyatt at

Stazione' s in Pierre Part, modified child support to $650. 00 per month, and provided

for other matters.

On February 16, 2022, Mr. Boudreaux filed a rule to modify custody, asserting

a material change in circumstances. Mr. Boudreaux asserted, in part, that Ms.

Webster often left Wyatt with third parties, was possibly using illicit drugs, exposed

herself on an adult website for compensation, had scheduled surgery for Wyatt to

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have tubes put in his ears without allowing Mr. Boudreaux to attend, was unable to

maintain steady employment, and had violated the relocation statute by moving to

Kaplan to be with a boyfriend. Mr.
Boudreaux sought to be designated tI

domiciliary parent and to modify physical custody so that Wyatt would primarily

reside with him. Ms. Webster filed a responsive pleading and averred that the parties

had agreed to an extrajudicial 7- 7 ( week -to -week) rotating custody schedule and that

Wyatt would soon be school age.' She asserted, in part, that Mr. Boudreaux often

left Wyatt in the care of his parents, sister, or niece, that he and his parents refused

to cooperate with her attempts to potty -train Wyatt, that Mr. Boudreaux was

interrogating Wyatt regarding what went on in her home, and that Mr. Boudreaux' s

mother was Wyatt' s primary caregiver when Wyatt was in Mr. Boudreaux' s care.

Ms. Webster requested that physical custody be modified and that Wyatt be allowed

to reside primarily with her during the school year and spend alternate weekends

with Mr. Boudreaux.

The matter proceeded to a trial on August 1, 2022. At the conclusion, the trial

court ordered that joint custody continue, with continuing equal physical custody on

an alternating weekly basis, and designated Mr. Boudreaux and Ms. Webster as co -

domiciliary parents. The trial court signed the judgment on September 1, 2022. The

the daycare/ preK-3 expenses for Wyatt to attend Central Catholic School.' Further,

the judgment provides: that the parties meet to exchange Wyatt at the Pierre Part

Store in the morning and after school during Mr. Boudreaux' s week to have physical

custody; that the parties be able to Facetime/talk with Wyatt at noon on Saturday

and Sunday when Wyatt is with the other parent; that neither party talk negatively

Ms. Webster testified at trial that the parties switched to a 7- 7 rotating physical custody by mutual
agreement soon after the 2- 2- 5- 5 schedule was implemented.

3 Central Catholic School is located in Morgan City,

about the other party; that each party notify the other of a dating partner that will be

around Wyatt; that Mr. Boudreaux establish a direct deposit into Ms. Webster' s

checking account for child support on a biweekly basis; that the parties communicate

via Our Family Wizard; that Mr. Boudreaux remit $ 85. 00 for a medical bill

reimbursement to Ms. Webster within five days; and that a review of the matter, and

the issue of school attendance, shall take place by status conference on April 27,

assignments of error:

1.
The trial court legally erred in designating [ Mr. Boudreaux and Ms.
Webster] " co -domiciliary parents" of the minor child in derogation of
La. R.S. 9: 335 and the Louisiana Supreme Court decision in Hodges v.
Hodges.

2. The trial court legally erred in failing to allocate legal authority and
responsibility to the parties or otherwise find good cause for failing to
designate one domiciliary parent as required by La. R.S. 9: 335 and the
Louisiana Supreme Court decision in Hodges v. Hodges.

3. The trial court legally erred in failing to determine whether a
material change in circumstances warranting a modification of the
present custody arrangement had occurred since the original custody
decree.

4. The trial court legally erred and/ or abused its discretion [ in]
implicitly modifying the custodial exchanges of the minor child and
making a determination on the minor child' s daycare without

consideration or determination of a material change in circumstances
or the best interest of the child.

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In assignments of error numbers one and two, Mr. Boudreaux maintains that

the trial court erred in designating the parties as co -domiciliary parents. Louisiana

Revised Statute 9: 335 provides in part:

4 MS. Webster argues in her brief that the judgment should be changed in her favor; however, she did not
appeal the judgment, nor did she file an answer to the appeal. An appeal is the exercise of the right of a
party to have ajudgment of a trial court revised, modified, set aside, or reversed by an appellate court. La.
C.C.P. art. 2082. An appellate court cannot amend ajudgment in favor of a patty who has neither appealed
nor complained by way of an answer to the appeal. Williams v. City of Baton Rouge, 2002- 0339 ( La.
App. I Cir. 2/ 14/ 03), 848 So. 2d 9, 14; see Carranza v. Carranza, 2018- 971 ( La. App. 3 Cir. 6/ 5/ 19), 276
So. 3d 1028, 1032- 1033; Bowden v. Brown, 48, 268 ( La. App. 2 Cir. 5/ 15/ 13), 114 So. 3d 1194, 1206.

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A. ( 1)
In a proceeding in which joint custody is decreed, the court shall
render a joint custody implementation order except for good cause
shown.

2)(a) The implementation order shall allocate the time periods during
which each parent shall have physical custody of the child so that the
child is assured of frequent and continuing contact with both parents.

b) To the extent it is feasible and in the best interest of the child,
physical custody of the children should be shared equally.

3) The implementation order shall allocate the legal authority and
responsibility of the parents.

B. ( 1) In a decree ofjoint custody the court shall designate a domiciliary
parent except when there is an implementation order to the contrary or
for other good cause shown.

2) The domiciliary parent is the parent with whom the child shall
primarily reside, but the other parent shall have physical custody during
time periods that assure that the child has frequent and continuing
contact with both parents.

3) The domiciliary parent shall have authority to make all decisions
affecting the child unless an implementation order provides otherwise.
All major decisions made by the domiciliary parent concerning the
child shall be subject to review by the court upon motion of the other
parent. It shall be presumed that all major decisions made by the
domiciliary parent are in the best interest of the child.

C. If a domiciliary parent is not designated in the joint custody decree
and an implementation order does not provide otherwise, joint custody
confers upon the parents the same rights and responsibilities as are
conferred on them by the provisions of Title VII of Book I of the Civil
Code.

The plain language of La. R.S. 9: 335 manifests the legislature' s clear intent

to establish a custodial system in which a child has a domiciliary parent and no more

than one such parent. The text is clear. Although each parent can share physical

custody, the court can only designate a single domiciliary parent. Hodges v.

Hodges, 2015- 0585 ( La. 11/ 23/ 15), 181 So. 3d 700, 706. Therefore, we reverse the

trial court' s designation of Mr. Boudreaux and Ms. Webster as co- domiciliarl

parents.
Accordingly, we remand the matter to the trial court for a prompt hearing

and determination of a domiciliary parent unless there is an implementation order to

rel

the contrary or for other good cause shown. La R.S. 9: 335( B); Hodges, 181 So. 3d

711 -712.

In assignments of error numbers three and four, Mr. Boudreaux maintains that

the trial court legally erred in failing to determine whether a material change in

circumstances warranting a modification of the present custody arrangement had

occurred since the original custody decree, and legally erred or abused its discretion

in modifying the custodial exchanges of Wyatt and making a determination of

A trial court' s determination regarding child custody will not be

iisturbed absent a clear abuse of discretion. Martello v. Martello, 2006- 0594 ( La.

App. I Cir. 3/ 23/ 07), 960 So.2d 186, 191- 92. The best interest of the child is the

sole criterion to be met in making a custody award, as the trial court sits as a sort of

fiduciary on behalf of the child and must pursue actively that course of conduct

which will be of the greatest benefit to the child. C.M.J. v. L.M.C., 2014- 1119 ( La.

10/ 15/ 14), 156 So. 3d 16, 28, citing Turner v. Turner, 455 o.2d 1374, 1378 ( La.

1984). It is the child' s emotional, physical, material and social well-being and health

that are the court' s very purpose in child custody cases; the court must protect the

child from the real possibility that the parents are engaged in a bitter, vengeful, and

highly emotional conflict. The legislature has mandated that the court look only to

the child' s interests so that the court can fulfill its obligations to the child. Hodges,

The factors to be used in determining the best interest of the child are set out

in La. C. C. art. 134, which provides in pertinent part:

A. Except as provided in Paragraph B of this Article, the court shall
consider all relevant factors in determining the best interest of the child,
including:

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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 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 welfare of
the child.

8) The history of substance abuse, violence, or criminal activity of any
party.

9) The mental and physical health of each party. Evidence that an
abused parent suffers from the effects of past abuse by the other parent
shall not be grounds for denying that parent custody.

10) The home, school, and community history of the child.

11) The reasonable preference of the child, if the court deems the child
to be of sufficient age to express a preference.

12) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and the
other party, except when objectively substantial evidence of specific
abusive, reckless, or illegal conduct has caused one party to have
reasonable concerns for the child' s safety or well-being while in the
care of the other party.

13) The distance between the respective residences of the parties.

14) The responsibility for the care and rearing of the child previously
exercised by each party.

The trial court determined that Wyatt shall attend a daycare/preK-3 in Morgan

City while his parents have 50- 50 rotating weekly custody and live one hour away
from each other. The result is that Wyatt has a minimum daily one- hour trip each

91

way to and from a Morgan City daycare/preK-3 every other week giving Mr.

Boudreaux less than 50- 50 physical custody of Wyatt. While the trial court has vast

discretion in deciding matters of child custody and visitation, we find that this

excessive travel is not in Wyatt' s best interest, and that the trial court abused its

discretion in ordering that the parties shall meet in the morning and after school each

day during Mr. Boudreaux' s physical custody week to exchange Wyatt for

daycare/ preK-3. 1 Therefore, we amend the judgment to order that Mr. Boudreaux

shall not be required to send Wyatt to daycare/ preK-3 on the days Wyatt resides

primarily with him. Mr. Boudreaux remains responsible for his equal share of the

daycare/ preK- 3 expenses as provided for in the trial court judgment.

For the foregoing reasons, we reverse the trial court' s designation of Lance

Boudreaux and Carley Webster as co -domiciliary parents, we amend the judgment

to order that Lance Boudreaux shall not be required to send Wyatt to daycare/ preK-

3 on the days Wyatt resides primarily with him. We remand the case for a prompt

hearing for the determination of a domiciliary parent or an implementation order in

accordance with La. R.S. 9: 335. In all other aspects, the trial court judgment is

affirmed.
Costs of this appeal are assessed against Carley Webster.

REVERSED IN PART.) AMENDED IN PART, AFFIRMED IN PART,
AND REMANDED.

We note that Mr. Boudreaux has free child care from his parents while he is working. Further, we note
that preK attendance is not mandated by the State. See La. R.S. 17: 221.
M