Donald W. Cutts, Et Ux. v. Jeffrey Cutts

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-33

DONALD W. CUTTS, ET UX.

VERSUS

JEFFREY CUTTS, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 212,355
HONORABLE GEORGE CLARENCE METOYER JR., DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

Picket, J., dissents and assigns written reasons.

AFFIRMED.

Richard E. Lee
Attorney at Law
810 Main St.
Pineville, LA 71360
(318) 448-1391
Counsel for Defendant/Appellee:
Jeffrey Cutts
Karee Feazell Cutts

Randal Bryan Tannehill
Tannehill & Sylvester
2900 Military Hwy.
Pineville, LA 71360
(318) 641-1550
Counsel for Plaintiff/Appellant:
Donald W. Cutts
Gwendolyn Gail Cutts

SAUNDERS, Judge.

Paternal grandparents were awarded custody of a minor child pursuant to a

consent judgment. The child’s biological mother requested that the child be returned

to her custody. The grandparents refused and the mother filed a rule to change

custody. The trial court awarded custody to the child’s mother. This appeal

followed. We affirm.

FACTS AND PROCEDURAL HISTORY

On March, 11, 2003, Donald and Gwendolyn Cutts filed a petition for custody

of their granddaughter, Kaitlin Marie Cutts. Kaitlin was born on August 5, 1997 and

had been living with her grandparents for approximately three years. Jeffery Wayne

Cutts and Karee Feazell Cutts, the biological parents of Kaitlin, were the named

defendants. On March 20, 2003, Karee and her father met with the attorney for

appellants and signed an acceptance of service and waiver of citation. A consent

judgment was signed granting Donald and Gwendolyn Cutts custody of Kaitlin. Ms.

Feazell was allegedly informed that by so doing it would be easier to regain custody

of her child at a later time.

Subsequently, on July 25, 2005, Ms. Feazell’s attorney wrote to appellants

informing them that Karee wished to revoke her voluntary transfer of custody.

Appellants refused to return the child. Karee then filed a rule to change custody of

Kaitlin. After a hearing on the rule, the trial court concluded that the previous

consent judgment was a voluntary transfer of custody pursuant to which Ms. Feazell

could request that Kaitlin be returned to her. This appeal followed.

ASSIGNMENT OF ERROR

1) The trial court committed manifest error when it determined that the
previous consent judgment transferring custody of the minor to her
paternal grandparents was a voluntary transfer of custody which could
simply be withdrawn by the natural mother without a showing that there

has been a material change in circumstances since the custody decree
was rendered and whether a change in custody is in the best interests of
the minor child.

STANDARD OF REVIEW

Findings of the trial court are reviewable on appeal, and the appellate standard

of review has been clearly established. A trial judge’s findings of fact will not be

disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,

through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’

or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be

disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.

1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112.

DISCUSSION

Appellants argue that the previous consent judgment is not a voluntary transfer

of custody which allows the natural mother to revoke the transfer as provided for in

La.Ch.Code art. 1523. They contend that the judgment should be treated as any other

non-considered custody decree. As such, a showing that there has been a material

change in circumstances and a change in the custody regime of the child would be in

its best interests must be made to alter the regime. Because, appellants argue,

appellees did not make this showing, the trial court’s judgment must be reversed. We

disagree.

Appellants point to a previous case from this court wherein we held that a

parent must show a material change in circumstances and that a change of custody is

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in the best interests of the child to regain custody from a non-parent custodian

awarded custody by a consent judgment. Mayeaux v. Mayeaux, 93-1603 (La.App. 3

Cir. 6/1/94), 640 So.2d 686. In Mayeaux, however, we noted that the law governing

situations like the one presently before us was unclear. Id. Accordingly, we

examined jurisprudence from other circuits and relied upon the second circuit’s

reasoning in Hill v. Hill, 602 So.2d 287 (La.App. 2 Cir. 1992) in reaching our

decision. Those cases arose, however, before the most recent revisions to the codal

articles regarding custody became effective. Those revisions removed all other

considerations and focused custody awards solely on the basis of the best interests of

the child.

Following the revisions, the second circuit was presented with a factual

scenario similar to that present in Hill, Mayeaux, and the case sub judice. Tennessee

v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274. In that case, the

court examined prior jurisprudence in light of the revisions to child custody laws. Id.

The court stated that:

In the past, the law has been unclear as to who bears
the burden of proof and what proof is necessary at a
subsequent hearing by a parent against a nonparent to
modify a “nonconsidered” custody decree, and the lack of
clarity has caused this court difficulty. Compare Hill v.
Hill, 602 So.2d 287 (La.App. 2d Cir.1992), and Hughes v.
McKenzie, supra. However, we note that our prior
decisions were made before the most recent revisions to the
Civil Code's child custody articles under which this appeal
is decided. Article 131 now simply provides that the court
shall award custody in accordance with “the best interest of
the child”; this standard is the basic principle governing
Articles 131 through 136. See Revision Comment (a) to
Article 131. The articles that follow Article 131 are
adaptations of the basic principle to specific circumstances
relating to custody disputes, much as the articles following
Article 2315 apply its basic tort principle to particular
situations. Article 132 provides for application of the

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“best interest of the child” standard in determining an
award of custody as between the parents; Article 133
applies this same standard in reconciling custody disputes
between parents and nonparents.

Article 133 states:
If an award of joint custody or of sole custody to either
parent would result in substantial harm to the child, the
court shall award custody to another person with whom the
child has been living in a wholesome and stable
environment, or otherwise to any other person able to
provide an adequate and stable environment.

In addition, Revision Comment (b) to Article 133
recognizes the parent's paramount right to custody of his
child as against any nonparent, stating:[I]t is clear that the
heart of the parental primacy concept, the rule that a
nonparent always bears the burden of proof in a custody
contest with a parent, ... has not been affected by this
revision.

The article and comment implicitly show that the best
interest of the child often is best served by parental
custody, even when the child has been in a “wholesome
and stable environment” with a nonparent. Thus, proof of
“substantial harm” is needed to show otherwise.

The importance of a parent's right to custody of the child is
not a new idea in Louisiana jurisprudence. In his
concurring opinion in State v. Peniston, 235 La. 579, 105
So.2d 228 (1958), the late Justice Tate recognized this
most important right:

The right of a parent to his child existed
before governments or other social
institutions of mankind. This natural right
proceeds from our Creator and exists
independently of the state; the state ... does
not in my humble opinion possess the power
to take away in favor of a stranger the God-
given right of a parent to his child, in the
absence of the parent's forfeiture or
abandonment of such right or of positive
detriment to the child.

Id. 105 So.2d at 232.

Indeed, the parent's right to custody of the child is based

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upon our society's recognition of the special bond between
the child and parent as a cornerstone of the continuing
institution of the American family. Therefore, this concept
of parental primacy and “the best interest of the child”
standard are in essence two sides of the same coin: the
same reasons supporting parental primacy also underlie the
idea that the best interest of the child will be served by
parental custody.

In recognizing these principles, we note that Article 134
provides factors for the court to consider in determining the
best interest of the child. However, the Revision
Comments to this article point out that these factors are
illustrative, and not exclusive. Certainly the special
considerations of the parent/nonparent custody dispute will
not be properly weighed by looking only to the factors
enumerated in Article 134, which were designed to aid in
determining the best interest of the child primarily in
disputes between two parents.

We therefore conclude that in determining the best interest
of the child, the nonparent bears the burden of proof in an
action to change custody awarded by a “nonconsidered”
decree, and must show that an award of custody to the
parent would result in substantial harm to the child.

Id. at 1278-79. We find this reasoning compelling.

In LaPointe v. Menard, 412 So.2d 223 (La.App. 3 Cir. 1982), we, like our

brethren in the second circuit, adopted Justice Tate’s eloquent concurrence in State

ex rel. Paul v. Peniston, 105 So.2d 228 (La. 1958). Like the second circuit, we are

bound by the revisions to the civil code articles regarding child custody. Given these

considerations, we hold that a parent does not have to show a material change in

circumstances and that a change is in the best interests of a child when disputing

custody with a non-parent. Rather, the non-parent must show that an award of

custody to the parent will result in substantial harm to the child. Accordingly, it is

immaterial whether or not the consent judgment in this matter is deemed a voluntary

transfer of custody because, in either case, the burden in a custody dispute between

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a parent and non-parent does not rest with the parent. This must be the case if we are

to view parental primacy as a primary factor in determining the best interests of a

child as set forth in Justice Tate’s watershed concurrence in State ex rel. Paul v.

Peniston, 105 So.2d 228 (La. 1958). Ms. Feazell, therefore, did not fail to meet her

burden and the record is void of any evidence indicating that Kaitlin’s best interests

would not be served by returning her to her mother. Rather, Ms. Feazell, unlike

before, is now in the financial position to provide a stable home for her and her

daughter. Accordingly, we find no merit in appellants assignment of error.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

against appellants.

AFFIRMED.

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NUMBER 06-33

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

DONALD W. CUTTS, ET UX.

VERSUS

JEFFREY WAYNE CUTTS, ET AL.

Pickett, Judge, dissenting.

This is a custody dispute between the paternal grandparents and the mother of

an eight-year-old child. The paternal grandparents, Donald and Gwendolyn Cutts,

have had custody of the child since she was two. In 2003, they filed a Petition for

Custody against the mother, Karee Feazell Cutts, and the father, Jeffrey Cutts, who

were divorced. Both parents waived appearances and acquiesced to the request by

Donald and Gwendolyn. On April 7, 2003, Karee, Jeffrey, Donald and Gwendolyn,

as well as the presiding judge, filed a Consent Judgment which awarded Donald and

Gwendolyn sole custody of the child subject to reasonable visitation by Karee and

Jeffrey.

On August 1, 2005, Karee filed a Rule for Change of Custody seeking

revocation of the consent judgment and a judgment awarding custody to her.

Following a hearing, the trial court found that the Consent Judgment constituted a

voluntary transfer pursuant to La.Ch.Code art. 1510 et seq. Thus, the trial court held

that the Karee revoked the voluntary transfer by filing the Rule for Change of

Custody, and awarded custody to Karee without any determination of the best

interests of the child. The grandparents have appealed.

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The majority proposes to affirm the trial court. It decides that is unnecessary

to determine if the original Consent Judgment is a voluntary transfer of custody or a

non-considered decree. It finds that in either case, the grandparents bear the burden

of proving that returning the child to Karee would cause substantial harm to the child,

and that Karee does not bear the burden of proving that a change of custody is in the

bests interests of the child. Finding the record devoid of evidence that Karee would

do substantial harm to the child, the majority proposes to affirm.

The question becomes whether the consent judgment should be treated as a

voluntary transfer. I have concluded that the answer is unequivocally no. The

Children’s Code defines “voluntary transfer of custody” in article 1511(4) as follows:

“Voluntary transfer of custody” is a parent’s knowing and voluntary
relinquishment of legal custody or guardianship to an agency,
institution, or individual, subject to residual parental rights retained by
the parent and under such terms and conditions that enable the child to
receive adequate care and treatment.

Articles 1513 through 1519 explain the procedure to be used in effecting a voluntary

transfer. Importantly for this case, article 1515 very specifically sets forth the form

of the petition, and article 1516 requires that the individuals accepting custody

execute an affidavit indicating that they accept any conditions upon which the

transfer of custody is conditioned. Neither form was executed in this matter. The

comments indicate that the purpose of these specific forms of pleading is to minimize

later disputes. Furthermore, article 1520 is very specific as to the form of the

judgment granting a voluntary transfer:

A. The court shall render a written judgment granting or denying
the transfer of custody.

B. If the court grants the transfer of custody, the judgment shall
recite that:

(1) All necessary parties are involved.

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(2) The transfer is knowing and voluntary.

(3) There is a legitimate purpose and a factual basis
to support that purpose.

(4) All parties have been advised of and understand
the nature and extent of the transfer, including any terms
and conditions, and of their respective rights.

(5) The proposed change of custody is in the best
interests of the child.

C. In addition, if the order grants the transfer of custody, the
judgment shall order the transfer of custody and recite such terms and
conditions as requested by the parties.

Even assuming, arguendo, that this could be construed as a voluntary transfer

of custody, La.Ch.Code art. 1523 clearly states that if the custodians fail to return the

child upon revocation of the voluntary transfer, there shall be a contradictory hearing

at which the bests interests of the child are determined.

Since there is no voluntary transfer, the consent judgment is properly

considered a non-considered decree, and should be analyzed under the provisions of

La.Civ.Code art. 133. I would remand for a hearing to determine the best interests

of the child. For these reasons, I respectfully dissent.

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