Charles C. Bodie v. Tammy R. Harvey

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-845

CHARLES C. BODIE

VERSUS

TAMMY R. HARVEY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 68,845
HONORABLE JOHN C. FORD, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Glenn B. Gremillion,
Judges.

REVERSED AND RENDERED.

V. Ross Cicardo
Cicardo Law Firm
P. O. Box 3565
Lafayette, LA 70502
(337) 268-9511
Counsel for Plaintiff/Appellant:
Charles C. Bodie

John K. (Mike) Anderson
101 South First St.
Leesville, LA 71446
(337) 239-9076
Counsel for Defendant/Appellee:
Tammy R. Harvey

GREMILLION, Judge.

The plaintiff, Charles C. Bodie, appeals the trial court’s judgment

awarding joint custody, but naming the defendant, Tammy R. Harvey, the primary

domiciliary parent. For the following reasons, we reverse and render.

PROCEDURAL AND FACTUAL BACKGROUND

Bodie and Harvey were never married, but had one son, Wesley, who

was born in 1999. Bodie filed a petition for custody in April 2002, urging that

Harvey’s lifestyle was unstable and that it was in the best interests of Wesley that he

be awarded sole custody. In an August 2002 judgment, the trial court ordered that

Bodie and Harvey would have joint custody of Wesley. That judgment set forth the

visitation (alternating weekly) and holiday schedules and set forth that “neither party

shall have members of the opposite sex overnight nor as paramours.”

In February 2004, Bodie filed a rule for contempt, attorney fees, custody

and joint custody implementation plan urging that he be named the primary

domiciliary parent because Harvey was residing in the home of her boyfriend. In an

answer and reconventional demand, Harvey claimed that Bodie was fully aware that

after she and Bodie stopped living together in November 2003, she began living with

her boyfriend, Tommy Bolton, in January 2004.1 In her answer and reconventional

demand, Harvey urged that a change of circumstances warranted that she be

designated the domiciliary custodial parent.

Following a hearing on the rule to modify a consent decree in August

2005, the trial court found that there had been a change in circumstances since the

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Harvey and Bolton were married in May 2004, however, we will refer to Tammy as
Harvey throughout this opinion.

August 2002 judgment, primarily relating to Wesley’s social and educational delays

which the trial court attributed to “inconsistent and divergent parenting approaches”

used by Bodie and Harvey. The trial court then considered the factors enumerated in

La.Civ.Code art. 134 and found that it would be in Wesley’s best interest if joint

custody was awarded with Harvey being named the primary domiciliary parent with

visitation by Bodie on alternate weekends and holidays which coincide with the

schedule of Wesley’s half-brother, Race. A judgment was rendered in December

2005, which also found Harvey in contempt of court for residing in open concubinage

with a paramour while she had custody of Wesley, but that her subsequent marriage

purged herself of any continuing contempt. She was ordered to pay Bodie $1,000 in

attorney’s fees. Bodie now appeals.

ISSUES

Bodie assigns as error the trial court’s failure to designate him primary

domiciliary custodial parent and the trial court’s changing the existing equally shared

custody order to alternating weekends and holidays conditional on a visitation

schedule of a half-brother, which is not part of the record.

DISCUSSION

The law is well settled that the trial court’s finding with regard to

custody matters is entitled to great weight on appeal as it is in a superior position to

assess what the child’s best interests are based on its consideration of the testimony

of the parties and witnesses. AEB v. JBE, 99-2668 (La. 11/30/99), 752 So.2d 756;

Miller v. Miller, 01-356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Therefore, upon

review, the findings of the trial court in custody matters are afforded great weight and

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the trial court’s determination will not be disturbed absent a showing of abuse of

discretion. Thibodeaux v. Thibodeaux, 00-82 (La.App. 3 Cir. 6/1/00), 768 So.2d 85,

writ denied, 00-2001 (La. 7/26/00), 766 So.2d 85.

In all child custody cases, the primary consideration is the best interests

of the children. La.Civ.Code art. 131. Numerous factors are at the trial court’s

disposal in making this determination and are set forth in La.Civ.Code art. 134. They

include:

(1) The love, affection and other emotional ties between each
party and the child.

(2) 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.

(3) The capacity and disposition of each party to provide the
child with food, clothing, medical care, and other material
needs.

(4) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity
of that environment.

(5) The permanence, as a family unit, of the existing or
proposed custodial home or homes.

(6) The moral fitness of each party, insofar as it affects the
welfare of the child.

(7) The mental and physical health of each party.

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

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

(10) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the
child and the other party.

(11) The distance between the respective residences of the
parties.

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(12) The responsibility for the care and rearing of the child
previously exercised by each part.

However, the trial court is not limited to considering the factors

enunciated and should consider the totality of the facts and circumstances in each

particular situation. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676

So.2d 619, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

Because the parties stipulated to an agreement without the court

considering parental fitness, the movant had to prove, in order to modify the existing

custody arrangement, that 1) a material change in circumstances had occurred, and

2) that the new custody arrangement would be in the best interest of the child. See

Lincecum v. Lincecum, 02-1522 (La.App. 3 Cir. 3/6/02), 812 So.2d 795.

EVIDENCE

Bodie’s central argument rests on the question of the moral fitness of

Harvey because she had lived with Bolton in open concubinage. It is an interesting

argument to make considering that Bodie did the very same thing with her for

multiple years. Bodie further complained that Harvey refused reasonable requests

for visitation at times when Wesley was not in his custody, and that Harvey refused

to allow telephone communication between him and his son.

Harvey testified that she and Bolton cohabitated before marriage while

she and Bodie were doing the week at a time custody arrangement in direct

contravention of the court’s orders. She further testified that she is thirty-four years

old and has been married five times including the marriage to Bolton. She testified

that she has two other sons from previous relationships.

Harvey then discussed some of the problems Wesley is having in school.

She stated that she and Bodie jointly agreed that Wesley should repeat kindergarten.

Harvey stated that she signed Wesley up to play baseball because he expressed a

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desire to play, but that she did not ask Bodie if he approved. She testified that she

does not work and that she and Bolton live in a three-bedroom house. Harvey

admitted that she and Bodie have had problems communicating regarding raising

Wesley. She stated that they do not agree in the area of education and discipline.

Harvey testified that she did not feel that Wesley was progressing in school because

he has no stability or consistency with the back and forth schedule. She stated that

both she and Bodie are close enough to Wesley’s elementary school to get him back

and forth. Harvey testified that Bodie does not discipline Wesley at all–she stated

that he gets his way and receives anything that he asks for. She further stated that she

does not approve of Bodie allowing Wesley to ride big tractors and four-wheelers by

himself and allowing him to ride in Bodie’s work vehicle, a Tom’s delivery truck,

unrestrained. However, she admitted to allowing Wesley to ride in a vehicle

unrestrained because he would scream and cry. She further testified that she did not

approve of Wesley sleeping in the same bed with Bodie or the fact that Bodie takes

Wesley to doctors other than his regular pediatrician. She further stated that she and

Bodie essentially disagree on every manner of parenting Wesley and that they have

since he was born.

Rebecca Dyer, an expert licensed clinical social worker, testified that she

was ordered by the court to meet with Bodie, Harvey, and Wesley. She stated that she

met with all three of them on March 15, 2005, with Bodie and Wesley on March 29,

Harvey and Wesley on April 5, and Bodie and Wesley on April 12, before submitting

her May 20, 2005 report to the court. She testified that Wesley has speech and

language problems. She stated that Harvey is the more structured parent while Bodie

the more relaxed one. She testified that Harvey would correct her son’s language

errors and insist that he use proper manners. She said that Wesley showed affection

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toward both parents.

Dyer stated that the benefits of living in the Bolton home were a more

family-oriented atmosphere. She testified that Wesley had a very close relationship

with his half-brother and that he talked about him often. On the other hand, in his

father’s home, Wesley has a very close relationship with his paternal grandmother

and is able to receive more one on one attention. He also has friends that reside near

his father’s home.

Dyer futher testified that she found no deleterious effects due to the

week-to-week arrangement that had been in place. She stated that she felt a change

would be detrimental to Wesley because he is close to both parents and it would be

difficult for him to make the changes. She said that it would be in his best interest to

maintain the week-to-week arrangement.

Dyer futher testified that Bodie was lacking in some parenting skills, but

that she had worked with him in that regard and that he had progressed. She further

testified that she spoke to Wesley’s teacher who stated that there was no difference

in behavior or academic performance from week to week. She again stated that she

felt the risk of a detrimental effect to Wesley was greater if the present situation was

changed as opposed to maintaining the current week-to-week arrangement.

On cross-examination, Dyer testified that Harvey had been aware of

Wesley’s academic problems and tried to enroll him in Head-Start and other programs

as early as three years old, but that Bodie refused. She said that Harvey told her that

Bodie wanted him to be home schooled. She further testified that Bodie admitted to

not properly restraining Wesley and allowing him to ride the four-wheeler by himself.

However, she said that he understood that he must be restrained and supervised. She

further identified his weaknesses as problems setting limits with Wesley and over-

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indulging him.

Bodie testified that he and Harvey have had a long history of poor

communication regarding Wesley. He stated that she never informed him of anything

relating to Wesley’s medical care or education. However, he said that things have

improved since early 2004, when he filed the rule. Bodie further testified that he has

since become very involved in Wesley’s education and his IEP meetings at the

school. Bodie further testified that he enrolled Wesley in a program at Sylvan

Learning Centers to assist him with his academic delays. He stated that Wesley goes

to Sylvan on Tuesdays and Thursdays when he has Wesley for the week.

Introduced into evidence were several letters sent certified mail that

Bodie has written to Harvey regarding assisting Wesley with his education and a

request that he be allowed to attend a birthday party, but Bodie stated that Harvey

refused to let him go and offered no reason why. Also offered into evidence was a

complaint filed by Bodie with the Vernon Parish Sheriff Department because Harvey

was supposed to meet him at the Sheriff’s office to exchange custody of Wesley on

Christmas day as ordered by the court, but she did not show up.

Bodie further testified that the weeks he has Wesley he brings him to and

from school. He stated that he lives five or six miles from Harvey’s house and about

ten minutes from the school. On cross-examination, Bodie admitted that he engaged

in just what he is now complaining of—that is living with Harvey while they were not

married when court orders by the father of Harvey’s other child prohibited it.

On cross-examination, Bodie admitted allowing Wesley to ride in the

front seat unbelted and that he was in a car accident. He also admitted allowing

Wesley to ride the four-wheeler buy himself. However, he stated he no longer allows

Wesley to ride in his Tom’s delivery truck and that he has never ridden the tractor by

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himself. Bodie further testified that he has learned from his counseling sessions with

Dyer that he must communicate with Harvey and put aside any past negative feelings,

and has improved his parenting skills by not indulging him and disciplining him when

he misbehaves. He also admitted that Wesley has a very close relationship with his

half-brother, Race. There was extensive discussion in Bodie’s testimony as to which

particular details of various aspects of Wesley’s life, i.e. doctor’s appointments,

school-related activities, he was kept informed of as well as letters sent by both

Harvey and Bodie and whether or not Harvey discussed things with Bodie before

enrolling Wesley in various activities.

Vera Wellman testified that she taught Wesley last year and has taught

both of Harvey’s other children and knew Harvey, but that she did not know Bodie

until Wesley starting attending Hicks school. She testified that during the school year

of 2004, when the week-to-week schedule was being followed, Wesley performed

consistently regardless of where he spent the week. However, she stated that Harvey

participated consistently in his education while Bodie did not. However, she also

testified that Bodie was very “energetic” and “interested” in Wesley’s schooling. She

further stated that she felt both parents only wanted the best for Wesley.

Barbara Kyle, a speech pathologist, testified that Wesley was her student.

She stated that she would send homework home and that when Wesley was with his

dad, he did not return the homework, but that he did when he was with his mom.

However, she testified that she took no actions to determine why the homework was

not being done such as writing a letter or calling Bodie. She further stated that these

assignments were informal handwritten assignments to assist in therapy. She did not

know if Bodie did the assignments, but just failed to return the paper. She further

testified that she sometimes noticed some regression in his speech skills during the

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weeks that Wesley spent with his father.

Tommy Bolton testified that Bodie knew Harvey was living with him

prior to them getting married. He testified that Harvey is “tight” with her son and that

on a daily basis she corrects his speech problems and assists him with his homework.

He stated that when Wesley returned from being with his father, his speech problems

would worsen and that he was “uncontrollable.” He further testified that his wife

does not work and is available twenty-four hours a day to care for Wesley. He

admitted, however, that Wesley loves and has a close relationship with both his

mother and father.

In its written reasons for judgment, the trial court found that there had

been a change in circumstances since the August 30, 2002 judgment “resulting from

Wesley’s significant delays in communication and social skills which, according to

Dr. Lonowski, is attributed in part to inconsistent and divergent parenting

approaches utilized by his mother and father.” Dr. Lonowski, a clinical psychologist,

submitted a report to the court which was received into evidence. In its written

reasons for judgment, the trial court quoted a large portion of the report, which

concluded:

In conclusion, the examiner has some significant concerns about
dependency issues in Mr. Bodie’s relationship with his son which call
into question his ability to be a fulltime nurturing and supportive parent
who meets the needs of a young child. There were indications from Mr.
Bodie’s statements that he may be eschewing adult social relationships
where he has difficulties with trust and commitment, and is devoting
himself excessively to his son in a way that does not encourage
Wesley’s self-sufficiency, independence and emotional growth.

In considering the factors enumerated in Article 134, the trial court stated that it

found the love and emotional ties to be equal, that the length of time in an adequate

environment was not a factor, and additionally:

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The permanence of the family unit has not been a factor in the
past, but it does appear to be a factor in considering the best interest of
the child in that Wesley and his next oldest half-sibling, Race, have
developed a close and bonding relationship.

Moral fitness of the parties is a consideration for the court given
Tammy Bolton’s propensity to openly live with men to whom she is not
married.

Both parties seem to be mentally and physically able to care for Wesley.
However, Dr. Lonowski has significant concerns about dependency issues in
Mr. Bodie’s relationship with Wesley.

Home, school, community history and preference of the child are
not relevant factors as both parents are doing what they perceive they
can do to best help Wesley with his developmental problems.

The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and the
other party is a factor to consider in that the testimony revealed that
these parties have difficulty in communicating with each other. On one
hand, Mr. Bodie has problems communicating with Tammy, the school
teachers and Wesley’s coaches. On the other hand, when questioned
about communication problems, the Court was impressed with Mr.
Bolton’s frankness when he attributed this in part to Tammy’s
stubbornness.

The distance between the parties and the care previously exercised
by each party are not relevant factors.

Considering all of the evidence and the law, the Court finds that
it is in the best interest of Wesley that joint custody be awarded to the
parties, with his mother, Tammy Bolton. Being designated as the
primary domiciliary parent and visitation with his father, Charles Bodie,
on alternate weekends and holiday which coincide with the schedule
Wesley’s brother, Race, enjoys with his father.

DISCUSSION

Having reviewed all of the evidence, we are unable to find any evidence

in the record that a material change in circumstances occurred between the rendering

of the August 30, 2002 judgment and this one. Accordingly, we find the trial court

abused its discretion in changing the joint custody arrangement to make Harvey the

primary domiciliary parent.

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The trial court initially discusses that a material change of circumstances

has led to the Wesley’s educational delays. However, none of the factors in the

discussion are directly related to his delays. Further, the evidence was overwhelming

that the week-to-week arrangement did not affect his schooling. Both Dyer and

Wesley’s own teacher, Wellman, testified that there was no change in Wesley’s

academic performance during the week-to-week custody arrangement. We are unable

to see how “inconsistent and divergent parenting approaches” led to Wesley’s

educational delays. Harvey herself testified that Wesley’s problems exhibited

themselves long before they separated. We find this indicative that Wesley’s

educational and speech problems were not the result of “parenting styles.” Although

it may be true that Bodie was somewhat in denial as to the extent of his son’s

educational delays, the evidence shows that he is now fully aware of these issues.

Further, it appears that great strides have been made on the part of Bodie to improve

his parenting skills and that he is making every effort to assist his son with his

educational delays.

As to the remaining discussion, it is clear that Wesley and his half-

brother Race have a close relationship that continued to flourish during the week-to-

week arrangement. This has no bearing on Wesley’s academic difficulties. What

appears to be Harvey’s co-dependence on men and Bodie’s alleged co-dependence

on his son, also had no bearing on Wesley’s academic performance, which was

described as generally lacking, regardless of whether he was at his mother’s or

father’s house. Finally, it is clear from the record that communication between the

parties has been strained, however, we find that Bodie has made the greater effort in

putting aside past problems to facilitate a better relationship for the benefit of his son.

In light of the fact that Bodie has an extremely close relationship with Wesley and is

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clearly making every effort to assist him with his academic problems, we feel that it

would not be in Wesley’s best interest to limit his time with his father to four days per

month. Harvey and Bodie must address his educational needs together.

Addressing Bodie’s claims on appeal, we find his argument

unpersuasive. Although it is clear that Harvey defied court orders, for which she was

held in contempt, her previous cohabitation, though not favored by the law, was cured

by her subsequent marriage and, in our opinion, has no bearing on the reasons the

trial court cited as warranting a change in the custody arrangement. We further find

that it would not be in Wesley’s best interests if primary domiciliary custody were to

be awarded to Bodie. As we have mentioned earlier, we find that the best interests

of Wesley are served by reinstating the week-to-week custody arrangement which

facilitates a close bond between Wesley and his mother and father.

CONCLUSION

We find the trial court abused its discretion in modifying the joint

custody award for the aforementioned reasons. Accordingly, the judgment of the trial

court is reversed and the previous custody order of August 2002 is reinstated. Costs

of this appeal are assessed equally between the parties.

REVERSED AND RENDERED.

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