John Rene Gallet v. Crystal Suire Gallet

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1594

JOHN RENE GALLET

VERSUS

CRYSTAL SUIRE GALLET

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 80190
HONORABLE DAVID BLANCHET, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and James T. Genovese,
Judges.

AFFIRMED.

William Vidrine
Vidrine & Vidrine
711 W. Pinhook Road
Lafayette, LA 70503
(337) 233-5195
Counsel for Plaintiff/Appellant:
John Rene Gallet

John V. Ghio
Attorney at Law
104 South Michot Road
Lafayette, LA 70508
(337) 981-1780
Counsel for Defendant/Appellee:
Crystal Suire Gallet

DECUIR, Judge.

In this custody case, the father appeals a trial court judgment finding a change

in custody was not in the best interest of the child.

FACTS

In 2003, John Gallet (Gallet) and Crystal Suire (Suire), by stipulation, entered

into a joint custody plan regarding their minor child, wherein Suire was named the

domiciliary parent. Two subsequent rules were filed but not tried and slight

modifications were made to the custody plan including an order that Suire not smoke

in the presence of the minor child. In September 2005, Gallet filed the instant rule

seeking psychological evaluation of all parties, a change in domiciliary status, and a

contempt order against Suire.

The trial court found a change of domiciliary status was not in the best interest

of the child, established a visitation schedule, ordered counseling for all parties at

Gallet’s expense, assigned cost of the psychological evaluation and related expert

witness fees at 75% to Gallet and 25% to Suire, and affirmed all previous orders not

specifically modified by the judgment. Gallet lodged this appeal.

CHANGE IN DOMICILIARY STATUS

Gallet’s first seven assignments of error allege that the trial court erred in

finding that a change of domiciliary parent from Suire to Gallet was not in the best

interest of the child. We disagree.

In Winzor v. Winzor, 03-329, p. 3-4 (La.App. 3 Cir. 10/1/03), 856 So.2d 107,

111, this court discussed the burden of proof for a party seeking a change in custody:

On appeal, a trial court’s ruling on a change of custody request
may only be disturbed if the reviewing court determines that the trial
court abused its discretion in making its ruling. In addition, a reviewing
court may set aside the trial court’s finding of fact only upon
determining that the trial court was manifestly erroneous or clearly
wrong. The issue is whether the trial court’s conclusion was reasonable
in light of the entire record.

Hillman v. Davis, 02-685, pp. 5-6 (La.App. 3 Cir. 12/11/02), 834 So.2d
594, 598 (citations omitted).

A party seeking to modify a custody decree which was a
stipulated judgment must prove “(1) that there has been a material
change of circumstances since the original custody decree was entered,
and (2) that the proposed modification is in the best interest of the
child.” Evans v. Lungrin, 97-541, 97-577, p. 13 (La. 2/6/98), 708 So.2d
731, 738. If the original custody decree is a considered decree, i.e., one
for which the trial court received evidence of parental fitness, the party
seeking a modification must prove that continuation of the present
situation 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).

In this case, the original custody decree was a consent judgment; therefore, the

heavier burden of Bergeron does not apply. Gallet, however, was required to

establish both prongs of the Evans standard, i.e., that a material change in

circumstances has occurred since the entry of the consent judgment and that his

proposed modification is in the child’s best interest.

After reviewing the record in this case, we cannot say the trial court abused its

discretion in maintaining Suire’s status as domiciliary parent. It is apparent that the

trial court carefully considered both the change in circumstances and the best interest

of the child factors. It is also evident, that the trial court found both parties lacking

in certain areas. While noting that Gallet had remarried and his situation offered

some stability, the court also noted that his active attempts to destabilize Suire’s

situation through interference with her public assistance and otherwise, were not in

the best interest of the child. Likewise, the court noted that while the evidence

indicated the child’s resistance to returning to her mother after visitation, the experts

did not agree on the reasons for the child’s reaction and could not rule out Gallet’s

contribution to the problem. Overall, viewing the record as a whole, we cannot say

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the conclusions of the trial court were unreasonable. These assignments of error have

no merit.

CONTEMPT

Gallet contends the trial court erred in failing to rule on his request that Suire

be found in contempt for violation of the court’s order prohibiting her from smoking

in the presence of the child. Generally, where a judgment is silent on a demand at

issue under the pleadings, such silence constitutes an absolute rejection of the

demand. Dowden v. Mid State Sand & Gravel Co., 95-231 (La.App. 3 Cir. 11/2/95),

664 So.2d 643, writ denied, 95-2864 (La. 2/2/96), 666 So.2d 1099. Determining

whether a party should be held in contempt for disobeying the court’s order is within

the discretion of the trial court, and an appellate court will only reverse based on an

abuse of that discretion. McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922

So.2d 694, writ denied, 06-435 (La. 4/28/06), 927 So2d. 295. In the present case, we

find no abuse of discretion in the trial court’s rejection of Gallet’s request for a

contempt order.

REDUCTION IN CHILD SUPPORT

In his final assignment of error, Gallet contends that the trial court should have

reduced his child support because the current custody arrangement is essentially a

shared custody arrangement. We disagree.

As a general rule, appellate courts will not consider issues raised for the first

time on appeal. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129. It is clear

that Gallet’s assertion is based on the current judgment and, therefore, could not have

been raised in the pleadings. We have examined the record and find only a reference

to a possible offset to child support related to counseling fees which the court

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indicated should be included in the judgment if the parties agreed. Accordingly, we

find the issue is not properly before us.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant, John Rene Gallet.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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