Leslie Moran Harris v. Jerry L. Harris

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-604

LESLIE MORAN JACKSON

VERSUS

JERRY L. HARRIS

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ON APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 197,126
HONORABLE F. RAE SWENT, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

E. Grey Burnes Talley
711 Washington Street
Post Office Box 650
Alexandria, Louisiana 71309-0650
(318) 442-5231
COUNSEL FOR APPELLANT:
Leslie Moran Jackson

Michael H. Davis
Davis & Saybe, LLP
2017 MacArthur Drive
Building 4, Suite A
Alexandria, Louisiana 71301
(318) 445-3621
COUNSEL FOR APPELLEE:
Jerry L. Harris

COOKS, Judge.

STATEMENT OF THE CASE

Leslie Moran Jackson appeals the trial court’s denial of her Motion to Modify

the Joint Custody Implementation Order rendered on August 2, 2001. For the reasons

assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

Leslie Moran Jackson and Jerry L. Harris were married on February 14, 1996

and divorced on May 22, 2000. The couple have two children, Jeremy Harris, born

June 22, 1994 and Haley Harris, born June 9, 1995. A consent custody decree was

rendered on November 15, 1999. In December 2000, Ms. Jackson moved to Chicago,

Illinois taking the children with her. Shortly thereafter, Mr. Harris filed a Rule for

Contempt and Modification of Custody. A hearing was held before the Honorable

Donald Johnson. On June 21, 2001, the trial court maintained Ms. Jackson as the

primary domiciliary parent and ordered the parties to submit joint custody plans. A

Joint Custody Implementation Order was signed on August 2, 2001. The Order

provided for joint custody of the children and gave Mr. Harris physical custody

during the following times:

A. Beginning July 23, 2001, on the 1st and 3rd weekend of each month,
from the time school lets out (or, if school is not in session, from 6:00
p.m.) on Friday, until 6:00 p.m. on the following Sunday. A weekend
is the 1st weekend of the month if the Friday of the weekend is the 1st
Friday of the month. The exercise of this physical custody depends on
Jerry L. Harris traveling at his expense to the state of Illinois (so that the
minor children shall not have to travel). His physical custody shall be
exercised inside the state of Illinois (unless the parents agree for him to
take the minor children from the state.)

B. Beginning in 2002, during the summer, so that visitation
commences afer the children’s school year ends and terminates at least
five days prior to the start of school.

Additionally, Mr. Harris has custody of the children for Easter and

Thanksgiving on odd-numbered years, the Christmas/New Year’s Holiday for one

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week of the two weeks each year, on Father’s Day and on his birthday (July 25).

In June 2002, Ms. Jackson filed a Motion to Modify Custody/Visitation.

Following a hearing, on January 15, 2004, the trial court amended the order to require

Mr. Harris to give Ms. Jackson seven days notice of his intent to exercise visitation

and designated a location for the exchange of the children. In all other respects

relevant to this appeal, the custody order remained the same.

On October 26, 2004, Ms. Jackson filed another Motion to Modify Visitation.

Ms. Jackson contends there has been a substantial change in the amount of time

afforded the children for summer vacation. She contends when the original Joint

Custody Implementation Order was signed the children had only four to five weeks

of summer vacation. Now, the children have approximately eight to ten weeks of

summer vacation. She requests Mr. Harris’ summer custody be modified. Ms.

Jackson requests that the children remain with her for a week or two after school ends

and that they be returned to Chicago a week or two prior to the start of the new school

year (instead of five days, as designated in the custody order). She contends a week

or two after the school year will allow the children time to relax at home and the

additional time prior to school will be used for doctor’s appointments, physical exams

and other school related preparations. Ms. Jackson also requests alternating weekend

visitation with the children in the summer when she travels to Louisiana and at least

ten days notice of Mr. Harris’ intent to exercise visitation.

A hearing was held. The only witnesses called were Ms. Jackson and Mr.

Harris. At the close of trial, the trial court found no change in circumstances and

denied Ms. Jackson’s request for a modification of the custody order. The trial court

admonished the parties for their unwillingness to cooperate, accommodate or

communicate with each other. The court stated:

I can absolutely find no change in circumstances that would allow me

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to modify this Judgment. The school time was short. That was a change
in circumstances from the rest of the world. But an enlarged
summertime is what everybody gets. It’s not a change in circumstances
such as to warrant my modifying a decree. It, it’s very common. And
I can’t see that it alters anything other than, uh, gives an advantage to
the person who’s otherwise very disadvantaged by the move to Chicago.
There are a lot of things that disturb me about this case. But I certainly
don’t find that these appointments and the mother’s desire for summer
visitation, increased visitation of her own, to be a change in
circumstances. . . Now why it has to happen in your case tells me
something about the two of you. That you’re not communicating. That
you’re thinking me, me, me, me, me instead of what should we do about
these children. Now one is merely a pediatric visit. This man could get
a pediatric statement of health. But you know what, if you don’t send
him the notice until August when you got it in March you’re in violation
of what I read in that Order because the day you get the notice from
school of what’s required you are suppose[d] to send it to him. He could
get half of it just by an ordinary physician. . . Well, I don’t know you
both said I will not accommodate the other one. That’s what I heard
through this whole thing. I didn’t hear any change of circumstances. I
didn’t hear anything that would lead me to believe that I ought to modify
this. And that’s including the first and third weekends in the
summertime. . . I just didn’t hear anything that really led me to believe
that either of you are going to do anything more than not accommodate
the other and so you’re just stuck with it. . . I don’t think there’s anyway
to reach the best interest of children when both parties get on the stand
and say I’m not going to accommodate the other.

Ms. Jackson filed this appeal. We affirm.

LAW AND DISCUSSION

Ms. Jackson contends the trial court erred in applying the “substantial change

in material circumstance” burden of proof to Ms. Jackson’s request for a modification

of visitation. Ms. Jackson contends this standard, as articulated in Bergeron v.

Bergeron, 492 So.2d 1193 (La.1986), applies only to a change in physical custody.

When a party seeks a modification of visitation, the appropriate standard is the “best

interest of the child”, which is a lesser burden of proof.

On August 2, 2001, the parties entered into a Joint Custody Implementation

Order, which document provided Ms. Jackson and Mr. Harris “shall have joint

custody of the minor children.” Ms. Jackson was given domiciliary custody and Mr.

Harris was given physical custody during specified times of the year. Louisiana

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Revised Statute 9:335(B)(2) governs joint custody decrees and provides, in relevant

part:

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.

Louisiana Civil Code Article 136(A) provides, in relevant part:

A parent not granted custody or joint custody of a child is entitled
to reasonable visitation rights unless the court finds, after a hearing, that
visitation would not be in the best interest of the child.

In the present case, since both parents were given joint custody, La.Civ.Code

art. 136(A) is inapplicable and Ms. Jackson must prove that a continuation of the

present custody is so deleterious to the children as to justify a modification of the

custody order. Bergeron, 492 So.2d 1193; Desoto v. Desoto, 04-1248 (La.App. 3 Cir.

2/2/05), 893 So.2d 175; Francois v. Leon, 02-0460 (La.App. 3 Cir. 11/27/02), 834

So.2d 1109. This burden of proof, articulated in Bergeron, 492 So.2d at 1200, was

designed to “protect children from the detrimental effects of too liberal standards in

custody change cases.” Under Bergeron , in order to justify a modification in custody

“the showing of overall or net benefit to the child must be clear.” Id. See also

Newcomb v. Newcomb, 01-1530 (La.App. 3 Cir. 3/6/02), 810 So.2d 1269.

We find Ms. Jackson has failed to meet her burden under any standard of proof.

Ms. Jackson is designated as the domiciliary parent in the custody order. She has

custody of the children during the entire school year. Although Mr. Harris is allowed

weekend visitation, as a practical matter, the only opportunity Mr. Harris has to spend

substantial time with his children is during the summer months in Louisiana. Mr.

Harris is not in a financial position to fly or drive to Chicago on a regular basis. He

has a lawn service business and often works six or seven days a week. Ms. Jackson’s

move to Chicago virtually foreclosed any opportunity for the children to have regular

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interaction with their father. Now, Ms. Jackson is seeking to further reduce Mr.

Harris’ physical custody of his children. Her only justification for seeking the change

is to allow for physician appointments prior to school. However, as noted by the trial

court, had Ms. Jackson communicated with Mr. Harris, these appointments and other

necessary school preparations could have been accomplished in Louisiana prior to the

start of school.

Ms. Jackson is also seeking another modification. She requests weekend

visitation during the summer when she is in Louisiana because “I just wanted it [the

custody order] to say exactly what it said for him.” The trial court concluded Ms.

Jackson’s request for weekend visitation was not based on any change in

circumstance or even the best interest of the children; it was rather based on her

animosity toward Mr. Harris. The trial court summarized her testimony: “She just

said I want it if he’s got it.” The court found, and we agree, this is not justification

enough to modify a consent custody decree.

The trial court heard the testimony and observed the demeanor of both parties.

The trial court’s factual findings are afforded vast discretion and its determinations

will not be overturned absent a clear showing of abuse of discretion. Francois v.

Leon, 02-0460 (La.App. 3 Cir. 11/27/02), 834 So.2d 1109; Muller v. Muller, 94-

281(La.App. 3 Cir. 10/5/94), 643 So.2d 478. We have reviewed the record and find

no error in the trial court’s evaluation of the situation between the parties and

circumstances which brought these parties back to court. We have also reviewed the

Joint Custody Implementation Order and find, as did the trial court, that Ms. Jackson

has failed to carry her burden of proving the current custody provisions are so

detrimental to the welfare of the children as to warrant a modification. Accordingly,

we affirm the decision of the trial court.

DECREE

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Based on the foregoing review of the record, we affirm the decision of the trial

court. All costs of this appeal are assessed to Leslie Moran Jackson.

AFFIRMED.

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