Trina M. Smith v. Steven Wayne Smith

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-1163

TRINA M. SMITH

VERSUS

STEVEN WAYNE SMITH

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 67,488, DIVISION-B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.
William Mitchell Redd
Liles & Redd
P.O. Box 3717
Lake Charles, LA 70602-3717
(337) 433-8529
Counsel for Defendant/Appellant:
Steven Wayne Smith

Trina M. Smith
In Proper Person
117 Helen Street
Westlake, LA 70669
Plaintiff/Appellee:
Trina M. Smith

EZELL, JUDGE.

In this matter, Steven Smith appeals the decision of the trial court allowing his

ex-wife, now Trina Chaney, to retain domiciliary custody of their son, Zachary. For

the following reasons, we affirm the decision of the trial court.

Mr. Smith was married to Mrs. Chaney in October of 1995. The couple had

one child, Zachary. A judgment of divorce was signed terminating the couple’s

marriage in January of 2002. By considered decree also rendered in 2002, Mr. Smith

and Mrs. Chaney were granted joint custody of Zachary with Mrs. Chaney named as

domiciliary custodian.

On April 4, 2006, Mrs. Chaney was cited and arrested for driving while

intoxicated and child endangerment after driving while drunk with Zachary and her

two children with her current husband, Eric Chaney, in the vehicle. Mr. Smith

immediately filed a successful motion for temporary custody of Zachary. Zachary

remained in the custody of Mr. Smith until May, 2006, when the temporary custody

order was rescinded and custody returned to Mrs. Chaney. Mrs. Chaney entered the

pre-trial diversion program wherein she was subject to random drug testing,

completed substance abuse and safe driver courses, sixty-four hours of community

service, and twelve months probation.

In November of 2006, after Mrs. Chaney had completed her substance abuse

program, she was involved in fisticuffs with her sister-in-law in front of Zachary after

an argument with her current husband. Mr. Smith then sought to change the custody

order, alleging that Mrs. Chaney had displayed a pattern of alcohol abuse that was

endangering his child and that Zachary’s best interests lay in him being domiciliary

custodian. After trial on the merits, the trial court disagreed with Mr. Smith,

maintaining Mrs. Chaney as primary domiciliary custodian. However, the trial court

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did order that Mr. Smith be named a co-domiciliary to facilitate easier access to

school records and to allow him to pick up Zachary from school without prior notice

from Mrs. Chaney. The trial court also ordered that both parties refrain from drinking

prior to, or during, the transporting of Zachary and that Mrs. Chaney submit herself

for further evaluation and treatment, if necessary, from the Addictive Disorders Clinic

in Calcasieu Parish. From this decision, Mr. Smith appeals.

Mr. Smith asserts one assignment of error on appeal, that the trial court erred

in its decision, as he claims the decision is not supported by the evidence. We

disagree.

In brief, Mr. Smith relies heavily on our opinion in Hill v. Hill, 06-1027

(La.App. 3 Cir. 12/6/06), 944 So.2d 873. In that opinion, we noted:

Under La.Civ. Code art. 131, decisions regarding custody of the
children are made with the best interest of the child being paramount.
This court has clearly stated the standard of review for an appellate court
in child custody matters. “The trial court is in a better position to
evaluate the best interest of the child from its observances of the parties
and witnesses; thus, a trial court’s determination in a child custody case
is entitled to great weight on appeal and will not be disturbed unless
there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89,
p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied,
96-1650 (La. 10/25/96), 681 So.2d 365.

In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the
Louisiana Supreme Court articulated the standard to be used when a
modification of a considered custody decree is sought. The court stated
that:

When a trial court has made a considered decree of
permanent custody the party seeking a change bears a
heavy burden of proving 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.

Id. at 1200 (citations omitted).

Id. at 874-75.

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In this case, as in Hill, the original custody decree rendered in this matter was

a considered decree; therefore, the Bergeron standard is applicable. However, as this

case is clearly factually distinguishable from Hill, Mr. Smith’s reliance upon it is

incorrect.

In Hill, the mother was addicted to methamphetamine and continued to use of

the drug despite court orders to submit to drug testing, which she summarily ignored.

She failed to follow the court’s orders in any way, and the record contained no

evidence whatsoever of rehabilitation. Additionally, she further disobeyed direct

orders from the trial court in that matter by allowing overnight visitors, lied under

oath on her pauper affidavit, was radically inconsistent in her treatment of her child,

and even checked her ten-year-old son into a mental health facility without any notice

to the father, leaving the child there and the father no means of extricating the child

from the hospital even after his discovery of the situation. Therefore, while the drug

use played a major role in our decision in Hill, it was but one of many factors.

In this matter however, the record in no way establishes the level of addiction

at play in Hill. Though driving while intoxicated with children in the car is an

unbelievable failure of judgment, unlike the mother in Hill, Mrs. Chaney successfully

completed her court ordered substance abuse programs and clearly showed regret for

her actions, stating that she had learned a hard lesson. Mr. Smith points to the

altercation between Mrs. Chaney and her sister-in-law as further evidence of a

drinking problem. However, the testimony on record establishes that, although the

argument with her husband started over her having had one drink earlier in the day,

Mrs. Chaney was not intoxicated at the time of the melee, and the details of the fight

remain unclear, as conflicting testimony existed, and charges were dropped by both

sides.

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Moreover, the trial court addressed any remaining concerns about Mrs.

Chaney’s drinking by ordering her to undergo further evaluation by the Addictive

Disorders Clinic and ordering her to undergo any treatment they may recommend.

This order has not been challenged by Mrs. Chaney and must be followed by her.

Should she disobey this order of the trial court, Mr. Smith’s argument that this case

resembles Hill would gain considerable strength in any future custody disputes.

Furthermore, the results of the evaluation are to go to Mr. Smith’s attorney, allowing

him to re-visit the issue if the clinic finds Mrs. Chaney to be a substance abuser or if

she fails, in any way, to follow any treatment they may prescribe for her.

Otherwise, none of the other problems arising in Hill exist in this case, and the

record establishes that, other than the incredibly nonsensical DWI incident, Mrs.

Chaney is a good parent to her children. Furthermore, after noting that Zachary’s

teachers and family testified that he was doing well in school, that he was in the

enrichment program, and got along well with his step-siblings, the trial court ruled

that Mr. Smith simply had not overcome the heavy burden placed on him under

Bergeron. While Mr. Smith’s concern for his child’s well-being is understandable

and sincere, there is nothing in the record which indicated this finding to be an abuse

of the trial court’s discretion.

For the above reasons, the decision of the trial court is hereby affirmed. Costs

of this appeal are assessed against Mr. Smith.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Uniform
Rules-Court of Appeals. Rule 2-16.3.

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