Nora E. Whipple v. David J. Whipple

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 06-551

NORA E. WHIPPLE

VERSUS

DAVID J. WHIPPLE

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 75294
HONORABLE LESTER P. KEES, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.

AFFIRMED.

Nora E. Whipple
In Proper Person
148 Maurice Drive
Leesville, LA 71446
(217) 390-5460

David J. Whipple
In Proper Person
334 Willow Bend Circle
Leesville, LA 71446
(337) 537-3331

SAUNDERS, Judge.

Appellant, Nora E. Whipple, filed a petition to amend custody of her two minor

children on December 5, 2005. The petition sought to amend a custody decree

rendered February 18, 2005 in Champaign, Illinois, granting sole custody of the two

minor children to Appellee, David J. Whipple. On January 6, 2006, Appellant filed

an affidavit for emergency temporary custody in the 30th Judicial District Court of the

State of Louisiana. The motion was denied, as the judgment was foreign and not

recognized by the court. A hearing was set for March 6, 2006. After the

aforementioned hearing, the trial court dismissed Appellant’s petition, finding that

it did not recognize the original custody decree, as it was never properly made

executory. Further, the court pointed out that Appellant alleged no cause of action

in her petition, as she alleged no change in circumstances warranting a modification

in custody. We affirm.

FACTS AND PROCEDURAL HISTORY

Appellant, Nora E. Whipple, filed a petition to amend custody of her two minor

children, Carley A. Whipple and Benjamin O. Whipple, on December 5, 2005,

seeking modification of a custody decree rendered on February 18, 2005 in

Champaign, Illinois. In the custody decree, the trial court awarded sole custody of

the two minor children to Appellant’s former spouse, Appellee, David J. Whipple,

and granted Appellant reasonable visitation. Appellant and Appellee had been

granted a dissolution of marriage in Illinois on July 1, 2004. However, at the time of

the commencement of the custody proceedings, Appellee and the two minor children

were residents of the State of Louisiana.

On January 6, 2006, Appellant filed a pleading titled “Affidavit for Emergency

Temporary Custody” in the 30th Judicial District Court of the State of Louisiana. The

trial court denied her motion on January 10, 2006 on the basis that the foreign custody

judgment was not recognized by the court, and the modification hearing was set for

March 6, 2006. Appellant filed a response to the claim that the foreign judgment was

not recognized by the court on January 13, 2006. On the same day, she also filed an

affidavit for ex parte order of temporary custody.

On February 21, 2006, Appellant filed a pleading titled, “Request to Direct

Expert Witness Diana Lenix to Answer Interrogatories and Produce Documents as

Originally Asked for by Nora E. Whipple.” Ms. Lenix had been appointed as a

limited guardian ad litem in the original custody proceedings by the Illinois trial court

to conduct an investigation as to the best interests of the children and report her

findings to the judge. In a letter directed to the Illinois trial court judge, dated

January 20, 2004, Ms. Lenix stated that after speaking with both parties, both children

and three other people, whose names were given to her by the parties, as well as

written information from both police and medical sources that she recommended that

the children remain in the custody of Appellee on a permanent basis, as he was the

more stable of the two. Upon receiving Appellant’s request, Ms. Lenix objected on

the basis that she was not a party to the proceedings, and therefore, she could not be

compelled to answer interrogatories or produce documents.

The matter was heard on March 6, 2006, and after considering the pleadings

and the law, the trial court dismissed Appellant’s petition to modify custody,

rendering judgment in open court the same day. In giving its reasons for judgment,

the court stated that the modification petition, itself, contained no request or order

within it, nor was there a petition filed requesting that the Illinois custody judgment

be recognized by the Louisiana trial court. The court further pointed out that even

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had the judgment been properly made executory, Appellant’s petition would have

been dismissed, as it contained no allegations of any material change in circumstances

warranting a modification of custody. Accordingly, the trial court dismissed

Appellant’s petition. Appellant now appeals, seeking sole custody of both minor

children, allowing Appellee supervised visitation of Benjamin O. Whipple, but

allowing no visitation with Carley A. Whipple other than by mail, email, fax, or

telephone. She further requests that Appellee pay her permanent maintenance, that

he provide child support, that he be ordered to take parenting classes and undergo

therapy. Additionally, she requests the extradition of several non-parties to the

litigation. Finally, in her appellate brief, Appellant prays for a recommendation of

disbarment of a handful of attorneys, as well as the removal of several judges

involved in the original custody proceedings that took place in Illinois.

ASSIGNMENT OF ERROR

The trial court erred in denying the petition to amend the custody of Carley A.

Whipple and Benjamin O. Whipple.

STANDARD OF REVIEW

It is well established that an appellate court cannot overturn the factual findings

of a trial court unless, after careful review of the record as a whole, the appellate court

finds that the factual conclusions of the trier of fact were manifestly erroneous or

clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate standard of

review is both constitutionally based and jurisprudentially refined.

This state’s appellate review standard, which is constitutionally based and

jurisprudentially driven, is that a court of appeal may not overturn a judgment of a

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trial court absent an error of law or a factual finding which is manifestly erroneous

or clearly wrong. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880

(La.1993).

If there is conflict in the testimony, the appellate court cannot substitute its own

judgment. The appellate court can only review the record as a whole to ensure that

the judgment of the trial court was reasonable. “[T]he issue to be resolved by a

reviewing court is not whether the trier of fact was right or wrong, but whether the

factfinder’s conclusion was a reasonable one.” Id. at 882. (Citations omitted.)

[I]f the trial court or jury 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. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong.

Rosell. 549 So.2d at 844. (Citations omitted.)

LAW AND ANALYSIS

Appellant argues that the trial court erred in dismissing the petition to amend

custody of the two minor children, Carley A. Whipple and Benjamin O. Whipple, by

ignoring the Uniform Interstate Family Support Act and additionally ignoring the

Illinois Domestic Violence Act and the Illinois Abused and Neglected Child

Reporting Act. When the trial court rendered its reasons for judgment in open court

on March 6, 2006, the court stated that Appellant never filed a petition requesting that

the original custody decree from Illinois be recognized as a valid judgment in

Louisiana pursuant to La.Code Civ.P. art. 2541 before she proceeded with her

attempts to have the Louisiana court amend the decree. Louisiana Code of Civil

Procedure Article 2541 states:

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A. A party seeking recognition or execution by a
Louisiana court of a judgment or decree of a court of the
United States or a territory thereof, or of any other state, or
of any other foreign country may either seek enforcement
pursuant to R.S. 13:4241, et seq., or bring an ordinary
proceeding against the judgment debtor in the proper
Louisiana court, to have the judgment or decree recognized
and made the judgment of the Louisiana court.

B. In the latter case, a duly authenticated copy of the
judgment or decree must be annexed to the petition.

Louisiana Revised Statutes 13:4242 states in pertinent part:

A copy of any foreign judgment authenticated in
accordance with an act of congress or the statutes of this
state may be annexed to and filed with an ex parte petition
complying tithe Code of Civil Procedure Article 891 and
praying that the judgment be made executory in a court of
this state. The foreign judgment shall be treated in the
same manner as a judgment of a court of this state. It shall
have the same effect and be subject to the same procedures,
defenses, for reopening, vacating, or staying as a judgment
of a court of this state and may be enforced in the same
manner.

Indeed, Appellant’s petition contains no request that the custody decree of the

Illinois court be made executory, nor is there any evidence in the record that

Appellant filed such a request. Therefore, because Appellant did not undertake the

required procedural steps pursuant to La.Code Civ.P. art. 2541 and La.R.S. 13:4242,

the Louisiana trial court could not recognize the foreign judgment and, in turn, could

not modify it.

The trial court next pointed out in its reasons for judgment that even had the

court recognized the judgment, the petition would still have been dismissed, as a

party must allege in its petition a change of circumstances to warrant such

modification. In Louisiana, there are two distinct burdens of proof required to modify

a custody agreement, which are determined based upon the type of custody decree

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entered into by the parties. In order to modify a consent custody decree, in which the

parties have agreed to the terms, the party seeking the modification must prove only

that there has been a material change of circumstances, and that the proposed

modification is in the best interest of the child. Evans v. Lungrin, 97-541 (La.

2/6/98), 708 So.2d 731. However, if the custody decision was rendered as a

“considered decree,” in which the trial court considered evidence of parental fitness,

the proponent has a higher burden of proof, and must prove that “the continuation of

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

custody decree, or of proving by clear and convincing evidence that the harm likely

to be caused by a change of environment is substantially outweighed by its

advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

The trial court found that Appellant stated no cause of action for a modification

of custody, as she did not allege a material change in circumstance based on facts or

incidents that occurred subsequent to the rendition of the Illinois custody decree. We

agree. Appellant alleges several extraneous causes of action in her petition.

However, they all occurred before the rendition of the decree and many are alleged

against persons who are not named parties to the instant litigation, including judges

and lawyers involved in the initial custody proceedings that occurred in Illinois. As

the trial court pointed out, Louisiana courts have no jurisdiction over matters that

occurred in Illinois at the trial court level; those issues must be litigated in the Illinois

judicial system. In the instant case, the custody decree granting sole custody of the

two minor children to Appellee would appear to fall under our definition of

“considered decree,” as the court appointed Ms. Lenix to conduct an investigation

regarding the dispute, considered the evidence, and subsequently made a ruling on

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the matter. However, whether the decree was consensual or considered is immaterial,

as Appellant does not allege or present adequate evidence to meet the lesser burden

of proving a material change in circumstances since the rendition of the original

custody decree.

Therefore, we find that the trial court did not err in holding that Appellant

asserted no cause of action for modification of custody in her petition. Accordingly,

the dismissal of her petition was appropriate.

CONCLUSION

After a review of the record, we do not find that the trial court was manifestly

erroneous in dismissing Appellant’s petition, as the original custody decree was never

made executory, and is therefore not recognized by the courts of this State. Further,

we find that Appellant asserted no cause of action to warrant a modification of such

decree had it been made executory. Therefore, we affirm the decision of the trial

court and cast Appellant with all costs of this appeal.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform
Rules, Courts of Appeal.

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