Lindsey Faith Richard v. William Oscar Clarke, II

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

i,
COURT OF APPEAL

FIRST CIRCUIT

2023 CU 1033

LINDSEY FAITH RICHARD

VERSUS

WILLIAM OSCAR CLARKE, II

Judgment Rendered:
FEB 2Z 2924

On Appeal from the Twenty -First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Docket No. 169091

Honorable Jeffery T. Oglesbee, Judge Presiding

Sherman Q. Mack Counsel for Plaintiff/Appellee
C. Glenn Westmoreland Lindsey Faith Richard
Albany, Louisiana

Jenel Guidry Secrease Counsel for Defendant/ Appellant
Ponchatoula, Louisiana William Oscar Clarke, II

BEFORE: McCLENDON, HESTER, AND MILLER, 33.

McCLENDON, 3.

In this child custody dispute, the father appeals a trial court judgment modifying

the previous consent judgment establishing physical custody of the minor child. For the

reasons that follow, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Lindsey Faith Richard, appellee, and William Oscar Clarke, II, appellant, are the

parents of A. C., born January 13, 2019. Ms. Richard filed a " Petition for Custody, to Set

Child Support[,] and for Partition of Jointly Owned Property" on January 7, 2021.

Thereafter, the parties entered into a consent judgment, which the trial court signed on

July 14, 2021( the July 14, 2021 consent judgment). The July 14, 2021 consent judgment

provided that the parties would generally share physical custody of A. C. on an alternating

weekly basis and exchange custody at 6: 00 p. m. on Fridays. The July 14, 2021 consent

judgment also provided an alternate physical custody schedule for periods when Mr.

Clarke was working out of town, pursuant to which he would enjoy physical custody every

other weekend from Friday at 6: 00 p. m. until Sunday at 6: 00 p. m. The July 14, 2021

consent judgment further designated Ms. Richard as the domiciliary parent, set forth the

holiday custody schedule, established co -parenting guidelines, and directed that Mr.

Clarke pay Ms. Richard $ 1, 200. 00 per month in child support.

On April 25, 2022, Mr. Clarke filed a " Motion to Decrease Support" seeking

modification of the child support order on the basis that his income had decreased. On

June 1, 2022, Ms. Richard filed a " Rule for Contempt, [ to] Make Arrears Executory, and

to] Modify Custody and Child Support."' On October 3, 2022, the parties stipulated that

they would continue to follow the July 14, 2021 consent judgment, subject to certain

modifications. A written judgment consistent therewith was signed by the trial court on

November 2, 2022 ( the November 2, 2022 consent judgment). The November 2, 2022

consent judgment provided, in pertinent part, that the parties " shall each offer the minor

Ms. Richard alleged that Mr. Clarke failed to make the required child support payments and was in arrears
in excess of thirteen thousand dollars. Thus, Ms. Richard sought an order making Mr. Clarkes child support
arrears executory, scheduling payment of the arrears, finding Mr. Clarke in contempt of court, and
sanctioning Mr. Clarke accordingly. Ms. Richard also sought an order directing Mr. Clarke to produce proof
of his income for recalculation of child support. Ms. Richard further requested additional co -parenting
guidelines and modification of Mr. Clarkes physical custody periods from alternating weeks to alternating
weekends.

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child to the other party for any overnight period that they cannot be present or need a

caretaker for an overnight period" ( the right of first refusal); that Mr. Clarke' s child

support obligation was reduced from $ 1, 200. 00 to $ 800. 00 per month, based on the

parties' gross incomes; that Mr. Clarke' s arrears through September 30, 2022 amounted

to $ 10, 000. 00, to be paid in a lump sum " when he receives inheritance money from the

sale of family land" ( inheritance); and that, until Mr. Clarke received the inheritance, he

would pay $ 50. 00 per month toward the arrears. The November 2, 2022 consent

judgment further provided that the parties " shall exchange the child the [ second] week

of August each year so that [ Ms. Richard] has the child the [ second] week." In other

respects, the parties would continue to follow the July 14, 2021 consent judgment.

On February 17, 2023, Mr. Clarke filed a " Rule for Contempt" alleging that Ms.

Richard had refused to allow his weekend visitation since January 29, 2023, based on

him working out of town. Mr. Clarke further alleged that Ms. Richard was " threatening to

not allow him to have his Mardi Gras visitation." Thus, Mr. Clarke requested that Ms.

Richard be found in contempt and cast with all court costs and attorney's fees.

On March 7, 2023, Ms. Richard filed a " Second Rule for Contempt[,] for Non

Payment of Child Support[,] and Arrears[.]" Ms. Richard alleged Mr. Clarke paid $ 400. 00

in child support since November of 2022, but he failed to pay the $ 10, 000. 00 arrearage

despite receiving the inheritance. Thus, Ms. Richard requested an assignment of wages;

that any and all amounts defined as arrearages be made executory; that Mr. Clarke be

held in contempt and sanctioned; and that Mr. Clarke be cast with all court costs and

attorney's fees.

Pertinent to this appeal, Ms. Richard' s second rule for contempt also alleged that

a change in circumstances warranted modification of the physical custody schedule set

forth in the July 14, 2021 and November 2, 2022 consent judgments ( sometimes

collectively, " the consent judgments'). Specifically, Ms. Richard argued that A.C. was not

of school age when the prior judgment was entered, and that because A.C. would be

attending school in August of 2023, she needed a more routine schedule. Ms. Richard

also contended that while the consent judgments anticipated that Mr. Clarke would only

work out of town occasionally, he had been working out of town "a majority of the time[.]"

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Both parties' rules were set for trial on April 27, 2023. After hearing testimony

from both parties, the trial court found both parties in contempt, and consequently, did

not award attorney's fees and court costs. Regarding child support, the trial court found

Mr. Clarke owed Ms. Richard $ 2, 400. 00 in addition to the prior arrearages, and made

same executory. With respect to the physical custody periods Ms. Richard denied Mr.

Clarke, the trial court awarded Mr. Clarke makeup time for the physical custody periods

he missed. The trial court further granted Ms. Richard' s rule to modify custody and

awarded Mr. Clarke physical custody of A.C. the first, third, and fourth weekends of each

month, from Thursday at 5: 00 p. m. until Sunday at 5: 00 p.m., and the first and third

weeks of June and July from Sunday at 5: 00 p. m. until the following Sunday at 5: 00 p. m.
The trial court stated, in pertinent part:

In support of her request to modify custody, Ms. Richard has
specified to the fact that the minor child, [ A. C.], will be starting pre -k 4.
Although I didn' t hear exactly which school, presumably its in East Baton
Rouge Parish where she currently resides. Mr. Clarke resides here in
Livingston Parish. Her concern is that upon [ A. C.] starting formal schooling
that it would be in her best interest to have a more routine and stable
schedule and she has concerns about Mr. Clarke being able to get the minor
child to school.

Mr. Clarke has testified that he would rely on some assistance from
his fiancee or his soon-to- be mother-in- law to help with the transportation
due to his work schedule. Currently he works Monday through Thursday,
ten hours a day, with the occasional overtime or turnaround schedule,
depending on the needs that come up. Both parties have other minor
children in their household. Ms. Richard has two minor, minor ( sic) children
who are currently babies, and Mr. Clarke has an older child who is eleven
years old who attends school in Livingston Parish.

Mr. Clarke, sir, I do have some concerns about how you would be
able to accomplish getting two different children to two different schools
during your custodial time. If they were going to the same school or the
schools were located close to each other that would alleviate some of my
concerns. But I do have some sincere concerns about that going forward
beginning in the fall. However, I do acknowledge that you've been doing a
shared custody schedule. You both testified that it's been working well. The
concern is when school starts.

I - - I don' t want to deprive you of your custodial time, but I do have
to acknowledge that I think it would be a concern of mine when school
starts that it would not necessarily be in the best interest of [ A. C.] to
maintain the week -to -week custodial schedule.

Therefore after carefully considering the factors contained in civil
article 134 ( sic), particularly factor ten, the home, school, community
history of the minor child; factor 13, the distance between the respective
residences of the parties; and then factor 14 the responsibility care and
rearing of the child previously exercised by each part, the court finds that
it would be in the best interest of the minor child that the custodial schedule

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be modified, effective August the 1s, 2023, maintaining joint custody, with
Ms. Richard as domiciliary parent. During the months of August through
May, the school - - which would cover the school year - - the school months
Mr. Clarke will enjoy custodial time the first, third, and fourth weekends
of the month from Thursday at 5: 00 until Sunday at 5: 00. Basically, sir,
although I' m reducing some of your days, I'm maintaining almost all of your
days with the minor child and these are the days that you' re actually off
from work. Ms. Richard, Mr. Clarke' s testified that he' s off on Fridays so that
will alleviate my concerns about him getting the minor child to and from
school on those Friday[ s]. During the summer months of June and July the
parties will - - Mr. Clarke will have the first and third weeks of the months
from the first and third Sunday of the month at 5: 00 until the following
Sunday at 5: 00. The parties are to equally share the major school holidays
of Christmas, Thanksgiving, Easter, and Mardi Gras / spring break, with
those being equally shared between the parties with the halves rotating on
an annual basis.

The trial court signed a written judgment in conformity with its oral reasons on May 24,

2023. Mr. Clarke has appealed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Clarke argues that the trial court erred in modifying the physical

custody schedule because Ms. Richard failed to prove a change in circumstances

materially affecting A. C.' s welfare. Mr. Clarke maintains the only change in circumstances

Ms. Richard established was that A.C. would soon be beginning pre -k 4, and that Ms.

Richard failed to establish how or why that change materially affected A.C.' s welfare.

Specifically, Mr. Clarke asserts that Ms. Richard' s request for modification of custody was

based solely on her speculative concerns that he would not be able to timely transport

A.C. to and from a new school, and she failed to substantiate those concerns in any way.

Mr. Clarke also argues that the trial court erred in modifying the physical custody schedule

because the evidence established that the previous physical custody schedule was both

feasible and in A. C.' s best interest.

BURDEN OF PROOF: MODIFICATION OF CUSTODY

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 child. Fin v. Fin, 2019- 0566 ( La. App. 1 Cir.

9/ 27/ 19), 288 So. 3d 142, 144. As pointed out by Justice Weimer ( then Judge Weimer) in

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a concurrence in Shaffer v. Shaffer, 2000- 1251 ( La. App. 1 Cir. 9/ 13/ 00), 808 So. 2d

354, writ denied, 2000- 2838 ( La. 11/ 13/ 00), 774 So. 2d 1517 which this court favorably

cited in Fin, 288 So. 3d at 144 and in Tinsley v. Tinsley, 2016- 0891 ( La. App. 1 Cir.

1/ 18/ 17), 211 So. 3d 405, 413, in determining whether there is a material change in

circumstances, "[ ilt 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 I., concurring).

DISCUSSION

The record before us reflects that Ms. Richard testified Mr. Clarke and A. C. " have

a very good relationshi p[, I" and Mr. Clarke testified Ms. Richard was " [a] bsolutely" a good

mother. The parties' testimony further established that A. C. has her own room and a

similar household routine in both homes, as both parents stated she would typically bathe

and eat before going to bed around 8: 30 p. m. The record also reflects that A.C. has

positive relationships with her siblings in both of her parents' homes: Mr. Clarke testified

that he had physical custody of his older daughter, then eleven years old, on the same

week -to -week schedule as A.C., and Ms. Richard testified that she had two other children,

a fifteen -month- old and a three -month- old. Ms. Richard testified:

A.C. is] very involved with both of our families. She has siblings. . . in both
families, younger and older. So she likes to play with them a lot. She spends
a lot of time with them. We like to include everyone. There are times when
we have done stuff together, both of our families, in order to include all the
children.

Moreover, Ms. Richard described the parties as " great communicators. "2 When asked

whether she had any issues with the current custody schedule, Ms. Richard answered,

Not majorly. There have been times where we've, or he' s given up sometime ( sic) to do

things, but I' ve also done the same. So we just give each other first right of refusal for

both."

According to Ms. Richard, the parties' homes are about thirty to thirty-five minutes

apart. Ms. Richard lives with her mother. Ms. Richard testified that she usually works 9: 30

2 We note that Ms. Richard complained of "communication issues" with Mr. Clarke' s fiancee during her trial
testimony. She testified, " For one, I am blocked on social media and I also am not able to communicate in
person or in text message. I just don't get a response." However, Mr. Clarke recalled Ms. Richard bringing
this alleged issue to his attention " once[ J'

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a. m. to 5: 00 p. m., Monday, Wednesday, and Friday, as the office manager at Dynamic

Power Sports. She takes A.C. to and from daycare five days a week. Ms. Richard testified

that when A. C. started school, she would be able to pick A. C. up from school and bring

her back to her workplace, and, " If not, I do have my mother who can watch her, or we

can still keep her in daycare if that would be better for everyone. That is an option. One

of the schools does drop off and pick up from the daycare."

Regarding Mr. Clarke working out of town in the past, Ms. Richard initially testified

that he did so " Every now and then. Not often." She testified that over the past six

months, Mr. Clarke had been out of town working, " Like a month or maybe six weeks."

Ms. Richard' s testimony on cross- examination clarified that Mr. Clarke was actually only

out of town about six weeks out of the past eighteen months to two years. Ms. Richard

also acknowledged that because the consent judgments anticipated that Mr, Clarke would

work out of town on occasion and provided that he would have physical custody every

other weekend under those circumstances, Ms. Richard would be able to take A. C. to and

from school in those instances. Mr. Clarke testified that he had only worked out of town

twice since the beginning of this case, when the parties " first went to court in April of '21

and then this past job in Texas.' 3 Both instances lasted about six weeks.

Mr. Clarke testified that his current position as a welder in Geismar, Louisiana,

would "very rarely" involve travel and that he took the position "to be home." His schedule

at the time of trial was " four tens, working 6: 00 AM to 4: 30 PM[,]" Monday through

Thursday. Mr. Clarke acknowledged that he would probably not be able to take A. C. to

school himself because of his work schedule, but testified that his fiancee and her mother

would be able to take A. C. to and from school. Mr. Clarke further testified that he had

shared custody of his older daughter since she was about A.C.' s age, and he had not had

any problems getting her to school on time. Mr. Clarke admitted he had kept A.C. home

from daycare on occasion so she could spend time with him or her sister, but testified he

would not do that if she was enrolled in regular school. Mr. Clarke also testified he would

3 Mr. Clarke testified that when he works turnarounds, he would normally work seven days a week, for ten
to twelve hours. The turnaround he worked during the time period Ms. Richard denied his visitation was
for five or six weeks, and he worked seven twelve- hour days. He was initially staying with a friend, but
rented a cabin to have space for his children to come visit.

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be able to take A.C. to the doctor and help her with homework. Mr. Clarke did not recall

Ms. Richard bringing up any issues with him about A. C.' s attendance at daycare. When

asked, " What assurances can you give to [ Ms. Richard] and the court that [ A. C.] would

continue to have stability in your home for school?" Mr. Clarke replied, " I don' t know how

to give assurances on that, but I haven' t - - I haven't not done it since I've had her. So I

don' t feel there should be a reason that she doesn't believe it."

At the time of trial, A. C. was doing very well in a " pre -k 3" program at her daycare.

Regarding Ms. Richard' s request to modify custody, Ms. Richard explained, " I' d like to

modify it due to her starting school in August and do ( sic) pre -k 4. And my concerns are

how she would get to and from school due to [ Mr. Clarkes] work schedule." When

questioned further, Ms. Richard continued to repeat this sentiment, stating that her " top

concern" was A. C. " getting to and from school in a timely manner." However, Ms. Richard

did not testify to any factual event or occurrence that substantiated her concerns. To the

contrary, when asked whether Mr. Clarke currently managed to get A. C. to and from

daycare every day during his custody periods, Ms. Richard conceded that he did, though

she qualified that he did so " with assistance" from his fiancee or his fiancee's mother.

Moreover, when Ms. Richard was asked if she had a problem with Mr. Clarke' s fiancee or

her mother helping Mr. Clarke with A.C., she responded, " No, I don't have a problem with

that at all." Ms. Richard also admitted that the grounds for her concerns were speculative:

when asked, " So you want to modify custody because you' re speculating that maybe he

won't be able to get her to school?" Ms. Richard responded, " Yes."

When asked what schedule she believed would be in A.C.' s best interest during

the school term, Ms. Richard responded, " I feel her going every other weekend to his

house and maybe even a night during the week would be beneficial to her." Ms. Richard

testified that during the summer, she would like a shared week -to -week schedule. When

asked whether the proposed modification in the custody schedule would impact Mr.

Clarke' s relationship with A.C., Ms. Richard testified, " I don' t feel it would impact their

relationship. I feel it would impact the time spent together." Ms. Richard admitted that

altering the custody schedule would limit the time A.C. spent with her other siblings.

As set forth above, in this matter, as the party seeking a modification of custody,

Ms. Richard was required to prove that there has been a material change in circumstances

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

proposed modification is in the best interest of the child. See Fin, 288 So. 3d at 144.

Having thoroughly reviewed the record before us and considering the applicable law, we

find that Ms. Richard failed to meet her burden of proof, and the trial court erred in

modifying the custody schedule.

We begin by pointing out that Ms. Richard' s March 7, 2023 request to modify

custody was filed approximately four months after the parties executed the November 2,

2022 consent judgment. Further, her request was based on speculative concerns that

A.C.' s commencement of pre -k could potentially result in Mr. Clarke failing to transport

A.C. to and from school in a timely manner. However, the only actual change Ms. Richard

established was that A. C. would soon be beginning pre -k 4. Ms. Richard did not offer any

evidence of the name or location of the school, or that Mr. Clarke would be unable to

transport A.C. to and from school in a timely manner. Additionally, there was no evidence

that timely transportation to and from daycare had been an issue in the past, and there

was no evidence in the record supporting Ms. Richards concerns that such problems

would develop. To the contrary, as Mr. Clarke argues, there was only speculation that

A. C. leaving daycare and beginning pre -k 4 may create a timeliness problem.

Consequently, in the present case, the trial court was asked to make a decision based

only upon anticipated facts that could possibly have a negative impact on A. C.

See Hensgens v. Hensgens, 94- 1200 ( La. App. 3 Cir. 3/ 15/ 95), 653 So. 2d 48, 53, writ

denied, 95- 1488 ( La. 9/ 22/ 95), 660 So. 2d 478.

Further, when Ms. Richard was discussing what her plans would be when A. C.

started school, she stated, " One of the schools does drop off and pick up from the

daycare." Similarly, the trial court acknowledged in its oral reasons that no school had

been identified, stating, " I didn' t hear exactly which school[. j" These statements reflect

that the issue of where A.C. would attend school had not been decided at the time of

trial, making the likelihood that difficulties with transportation may develop even more

suppositional. Thus, we find that Ms. Richard' s claims before the trial court were purely

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speculative, and the issue of a modification of child custody was not ripe for adjudication

before the tribunal.4 Accordingly, we find that the trial court improperly modified a

custody decree without a showing of a material change of circumstances.

Because the first requirement for modifying 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. Fin, 288 So. 3d at 146. Thus, the trial court

abused its discretion in modifying the physical custodial arrangement set forth in the July

14, 2021 and November 2, 2022 consent judgments. Accordingly, the May 24, 2023

judgment of the trial court is reversed insofar as it modified the parties' physical custodial

schedule. See Tinsley, 211 So. 3d at 418.

CONCLUSION

For the foregoing reasons, that portion of the May 24, 2023 judgment of the trial

court granting Ms. Richard' s motion to modify custody is reversed. The physical custody

schedule set forth in the 3uly 14, 2021 and November 2, 2022 consent judgments is

reinstated. In all other respects, the May 24, 2023 judgment is affirmed.

REVERSED IN PART AND AFFIRMED IN PART.

4 We find this case to be distinguishable from Shaffer, 808 So -2d 354. In Shaffer, this court found that:

The original custody decree providing that [ the minor child] would spend the first week of
every month with her father in Baton Rouge and the remaining three weeks with her
mother in Lafayette is no longer, a practical schedule given: the fact that [ the minor child]
has reached school age... Under the particular facts of this case, we agree that once [ the
minor child] reached school age, her need to attend one school in one location requires a
modification of the original custody decree.
Shaffer, 808 So. 2d at 357- 58. However, in Shaffer, the child reaching school age rendered the existing
custody schedule unworkable because the parties lived in Baton Rouge and Lafayette. In this matter,
according to Ms. Richard, the parties live about thirty minutes apart, and both parties were able to
successfully arrange for A. C. to be transported to and from daycare at the same location with no issues.

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