Todd Baudin v. Sharmon Baudin Prevost

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-170

TODD BAUDIN

VERSUS

SHARMON BAUDIN PREVOST

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 96-3343-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Elizabeth A. Pickett, Judges.

Pickett, J., concurs.

REVERSED AND RENDERED.

Angelo J. Piazza, III
P. O. Box 429
Marksville, LA 71351
Telephone: (318) 253-6423
COUNSEL FOR:
Plaintiff/Appellee - Todd Baudin

Kenneth A. Doggett
P. O. Box 13498
Alexandria, LA 71315-3498
Telephone: (318) 487-4251
COUNSEL FOR:
Defendant/Appellant - Sharmon Baudin Prevost

THIBODEAUX, Chief Judge.

In this child custody case, Sharmon Baudin Prevost (Ms. Prevost),

appeals the trial court judgment modifying a considered joint custody decree. The

judgment appealed from awarded shared custody on a fifty-fifty (50/50) basis to each

parent for seven (7) days each. The previous joint custody judgment awarded joint

custody to Ms. Prevost and her ex-husband, Todd Baudin, appointed Ms. Prevost as

the domiciliary parent, and granted visitation privileges to Mr. Baudin.

For the following reasons, we reverse the trial court’s judgment.

I.

ISSUES

We shall determine whether:

1. Ms. Prevost met the Bergeron standard to modify
the considered joint custody decree to sole custody;
and

2. the trial court committed legal error in modifying the
1997 considered joint custody decree to 50/50
shared custody.

II.

FACTS

Ms. Prevost and Mr. Baudin were married on July 30, 1994. One girl,

Karly Baudin, was born during the marriage on August 30, 1995. Ten months after

the birth of Karly, the couple separated. Ms. Prevost subsequently filed for divorce

and custody of Karly. In her petition, she requested temporary sole care, custody, and

control of Karly, while the matter was scheduled for a hearing. The court granted Ms.

Prevost’s request.

Approximately two months after Ms. Prevost filed for divorce and

custody of her minor child, she and Mr. Baudin reconciled. This reconciliation did

not last long; two months later, they separated again. After the latter separation, Mr.

Baudin filed for divorce and custody of Karly.

The parties entered into a stipulated judgment that awarded joint custody

to both parents, designating Ms. Prevost as the primary physical custodian, and Mr.

Baudin having specific visitation privileges. In the meantime, Mr. Baudin’s petition

for divorce was granted. On August 15, 1997, a trial was held to rule on the issue of

custody. This time, a considered decree was signed on September 11, 1997. The

considered decree awarded joint custody to both parents, with Ms. Prevost being

appointed as the primary physical custodian, and Mr. Baudin having specific

visitation rights.

Throughout the years, the 1997 considered joint custody decree

underwent various changes. For example, the parties once signed a consent judgment

amending it and filed various rules for change of custody. These rules were premised

upon changes in circumstances which, according to the parties, warranted changes in

the 1997 custody arrangement.

On September 20, 2005, Mr. Baudin filed a rule to decrease child

support. In response, Ms. Prevost alleged that a decrease in support was not

warranted. Further, she petitioned for a modification in the considered joint custody

decree to award her full care, custody, and control of Karly. In her response, Ms.

Prevost stated, among other things, that Mr. Baudin had an anger problem and

requested that he attend an anger management program as well as a parenting

program. Ms. Prevost indicated she was fearful of Karly’s exposure to Mr. Baudin’s

volatile and abusive temper.

In due course, this matter came before the trial court pursuant to regular

assignment. After considering the evidence, law, and medical evaluations conducted

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by Dr. John Simoneaux, the trial court ordered the parties to undergo independent

medical examination by Dr. Raphael Salcedo. As a result of this, Mr. Baudin’s

visitation schedule was temporarily modified until the parties underwent medical

examinations. In July of 2006, Dr. Salcedo evaluated Karly, Ms. Prevost, and Mr.

Baudin.

Approximately a year later, Ms. Prevost filed a motion and order for re-

evaluation of the parties by Dr. Salcedo in order to provide the trial court with an

updated evaluation given that the last evaluation had taken place a year earlier. The

trial court granted Ms. Prevost’s request. However, despite the trial court order, Mr.

Baudin refused to undergo re-evaluation and, for this reason, Dr. Salcedo elected not

to re-evaluate Ms. Prevost. Thus, only Karly was re-evaluated.

In the interim, while Mr. Baudin was visiting with Karly, he noticed a

bruise on her arm. According to him, Karly’s arm needed medical attention.

Consequently, he took her to the hospital. Upon Mr. Baudin’s suspicion of physical

and sexual abuse of Karly at the hands of Ms. Prevost, Mr. Baudin authorized a

vaginal exploration exam upon Karly. However, neither physical nor sexual abuse

was found to be inflicted upon Karly. Nonetheless, Mr. Baudin filed a Motion and

Order for Ex-Parte Order of Child Custody requesting temporary sole custody of

Karly until a hearing may be held. After considering Mr. Baudin’s motion, the trial

court issued an Interim Custody Order, awarding the parties 50/50 shared custody of

Karly.

After this incident, Dr. Salcedo re-evaluated Karly. The results of

Karly’s re-evaluation “indicate[d] the presence of significant anxiety and depression,

although clearly not as severe as when [he] examined her lastly, shortly after the

traumatic medical examination which Mr. Baudin insisted she receive . . . .” During

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the re-evaluation, Karly also informed Dr. Salcedo that “she still would very much

prefer to return to the previous custody arrangement in which she was residing

primarily with her mother as the domiciliary custodian, and visiting with her father

on the weekends.” As purportedly stated by Karly, “the current arrangement of

alternating weeks makes her feel ‘tired,’ and she resents having to pack for what

would essentially be an extended trip on a weekly basis.” Upon concluding the re-

evaluation of Karly, Dr. Salcedo recommended that the previous custodial

arrangement, whereby Karly resided primarily with her mother and visited with her

father on the weekends, be reinstated.

On October 22, 2007, a hearing was held to adjudicate Mr. Baudin’s

motion to decrease child support and to modify the 1997 considered joint decree, as

well as to consider Ms. Prevost’s response thereto, wherein she also prayed to the

court for a modification to the 1997 considered decree. At the conclusion of the

hearing, the trial judge held that a modification to the considered decree was justified

and, accordingly, modified it to a 50/50 shared custody arrangement. As a result

thereof, Ms. Prevost lodged this appeal.

On appeal, Ms. Prevost essentially argues that the trial court committed

manifest error in modifying the 19971 considered joint custody decree.

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On Ms. Prevost’s brief to this court, she incorrectly refers to the considered decree here at
issue as the 1998 considered decree. The trial on the issue of custody was held on August 15, 1997,
and on September 11, 1997, the considered decree was signed. Accordingly, this decree shall be
referred to as the 1997 considered decree.

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III.

LAW AND DISCUSSION

Standard of Review

Ordinarily, 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). More specifically, “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.” Arrington v. Campbell, 04-

1649, p. 2 (La.App. 3 Cir. 3/9/05), 898 So.2d 611,612 (citing 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).

However, where one or more trial court legal errors
interdict the fact finding process, the manifest error
standard is no longer applicable, and, if the record is
otherwise complete, the appellate court should make its
own independent de novo review of the record and
determine a preponderance of the evidence. A legal error
occurs when a trial court applies incorrect principles of law
and such errors are prejudicial. Legal errors are prejudicial
when they materially affect the outcome and deprive a
party of substantial rights. When such a prejudicial error
of law skews the trial court’s finding of material issue of
fact and causes it to pretermit other issues, the appellate
court is required, if it can, to render judgment on the record
by applying the correct law and determining the essential
material facts de novo.

Evans v. Lungrin, 97-541, pp. 6-7 (La. 2/6/98), 708 So.2d 731, 735 (citations
omitted).

Accordingly, we will conduct a de novo review of the record to

determine whether the trial court was legally correct or legally incorrect in modifying

the 1997 considered decree without taking the Bergeron criteria into consideration.

Similarly, we will determine whether Ms. Prevost met her burden of proof under

Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) , warranting a change in the custody

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agreement. Citgo Petroleum Corp. v. Franz, 03-88 (La.App. 3 Cir. 6/4/03), 847 So.

2d 734, writ denied, 03-1911 (La. 10/31/03), 857 So.2d 484.

A.

Did Ms. Prevost meet the Bergeron criteria
to modify the considered joint custody
decree to sole custody?

After a thorough reading of Ms. Prevost’s brief, we are left to wonder

whether she is challenging the Interim Custody Order issued by the trial court

pursuant to La.Code Civ.P. art. 3945 or the 1997 considered joint custody decree.

Therefore, we will address each possibility individually.

Louisiana Code of Civil Procedure Article 3945(C)(1) and (E) provides,

in pertinent, that:

Art. 3945. Incidental order of temporary child custody; injunctive
relief; exceptions

....

C. An ex parte order of temporary custody shall:

(1) Expire by operation of law within fifteen days of
signing the order; however, the order may be extended for
good cause shown at any time before its expiration for one
period not exceeding ten days.

....

E. Any ex parte order not in compliance with the
provisions of this Article is not enforceable, and is null and
void.

In this case, Mr. Baudin’s Motion and Order for Ex-Parte Order of Child

Custody was presented in chambers on August 21, 2006. On September 1, 2006, the

trial court issued the Interim Custody Order. Pursuant to La.Code Civ.P. art. 3945

(C)(1), the Interim Custody Order remained in effect through September 15, 2006.

The record does not reflect an extension of the order was requested. In light of this,

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the Interim Custody Order expired, by operation of law, on September 16, 2006,

thereby reverting Karly’s custody arrangement back to the 1997 considered joint

custody decree. Given this determination, we will next consider whether the trial

court abused its discretion in finding that Ms. Prevost’s request for custodial

modification of the 1997 judgment was not warranted.

It is settled law that under Louisiana law, the paramount consideration

in any determination of child custody is the best interest of the child. La.Civ.Code.

art. 131. Nonetheless, this court, in Gremillion v. Gremillion, 07-492, p. 5 (La.App.

3 Cir. 10/3/07), 966 So.2d 1228, 1232, stated:

The burden of proof . . . is dependant on the nature
of the underlying custody award. Custody awards are
commonly made in two types of decisions. The first is
through a stipulated judgment, such as when the parties
consent to a custodial arrangement. The second is through
a considered decree, wherein the trial court receives
evidence of parental fitness to exercise care, custody, and
control of a child.

(Citation omitted).

When the trial court has made a considered decree of
permanent custody, the petitioning party bears the difficult
burden of proving that the continuation of the present
custody situation is so deleterious to the child that it
justifies a modification of the custody arrangement, or of
proving by clear and convincing evidence that any harm
likely to be caused by the change of environment is
substantially outweighed by the advantages to the child.
Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Lincecum v. Lincecum, 01-1522, p. 3 (La.App. 3 Cir. 3/6/02), 812 So.2d 795, 797.

However, in instances were the original custody
decree is a [stipulated judgment], such as when the parties
consent to a custodial arrangement, and no evidence of
parental fitness is taken, the heavy burden of proof
enunciated in Bergeron is inapplicable. Hensgens, 653
So.2d at 52. Instead, where the original custody decree is
a [stipulated judgment], the party seeking modification
must prove (1) that there has been a material change of
circumstances since the original custody decree was

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entered, and (2) that the proposed modification is in the
best interest of the child. Hensgens, 653 So.2d at 52.

Mimms v. Brown, 02-1681, p. 11 (La.App. 4 Cir. 9/3/03), 856 So.2d 36, 42-43.

Similarly, “[p]ursuant to the revised La.C.C art. 132, a substantially

higher burden is now placed on the parent seeking sole custody—that of ‘clear and

convincing evidence.’” Evans v. Lungrin, 97-541, p. 8 (La. 2/6/98), 708 So.2d 731,

736.

In this case, the evidence contained in the record supports the finding

that the 1997 judgment was, indeed, a considered decree. Notwithstanding Mr.

Baudin’s conclusory allegation that he “never actually received a true ‘considered

decree’ until this latest version of the judgment2 now on appeal,” the record makes

abundantly clear that, after a trial on the issue of custody was held on August 15,

1997, where testimony was heard, and the award was made pursuant thereto, the

judgment rendered on September 11, 1997, was a considered decree. Furthermore,

the 1997 judgment explicitly states that it is a considered decree and the judgment

signed on November 8, 2007, references “the previous considered decree of August

15, 1997.” It is well established that “[j]udgments are presumed to be correct.

Moreover, upon questions of fact, the presumption is a presumption juris, not to be

lightly overthrown by an appellate court.” Borie v. Lester & Co., 5 La.App. 536

(Orl.App. 1927). Accordingly, after concluding that the 1997 judgment was a

considered decree, the burden of proof under Bergeron governs the modification of

the 1997 judgment. After conducting a de novo review of the record, we conclude

that Ms. Prevost failed to carry her burden of proof.

2
Mr. Baudin is making reference to the considered decree signed by the trial court on
November 8, 2007, modifying the previous considered decree of August 15, 1997.

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On appeal, Ms. Prevost provides a list of facts which, according to her,

overcome the Bergeron burden of proof. For instance, she argues, inter alia, that Mr.

Baudin’s late night weekend work schedule, his mental state of depression, his refusal

to communicate with her, his attempt to interfere with Karly’s extracurricular

activities because she arranges them, his keeping the custody of Karly in constant

contentious legal process as well as his decision to subject Karly to a vaginal

examination provides ample evidence to warrant a modification of custody pursuant

to the Bergeron standard. We disagree.

A reading of the record indicates clearly that the relationship between

Ms. Prevost and Mr. Baudin is contentious and acrimonious. However, the record

fails to show that Mr. Baudin has been neglectful or abusive of Karly. Certainly, Mr.

Baudin has exhibited human frailties such as poor judgment, but it is our opinion that

these flaws are neither egregious nor have created a situation where the continuation

of the 1997 considered joint custody decree is so deleterious to Karly as to justify a

modification of the said decree. Likewise, we find that Ms. Prevost failed to prove,

by clear and convincing evidence, that the harm likely to be caused by a change of

environment is substantially outweighed by its advantages to Karly. Nor has she

established, by clear and convincing evidence, that her sole custody of Karly is in

Karly’s best interest. On the contrary, after a thorough review of the record, we find

that the facts and the law support that a continuation of the 1997 considered joint

custody decree is in Karly’s best interest.

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B.

Did the trial court commit legal error in modifying the 1997
considered joint custody decree to 50/50 shared custody?

It is settled law that trial courts retain a continuing power to modify a

child custody order; nevertheless, this power is not unfettered. As previously

discussed, when a trial court has made a considered decree of permanent custody, the

law imposes a heavy burden of proof upon the party seeking a change. Thus, a party

seeking a modification to a previously considered decree has the obligation to carry

her burden of proof should she want to succeed. Similarly, the trial court is under an

equal obligation to strictly apply the pertinent burden of proof prior to granting a

modification. For instance, in cases where the custody agreement subject to

modification is a considered decree, as it is in this case, the heavy burden of proof,

as well as the strict adherence thereof by trial courts is greatly justified since its

underlying reason is “to protect children from the detrimental effects of too liberal

standards in custody change cases[. Therefore,] the burden of proof should be heavy

and the showing of overall or net benefit to the child must be clear.” Bergeron, 492

So.2d at 1200.

In this case, after determining that the 1997 judgment was a considered

decree, we find that the trial judge applied the incorrect rule of law as to the burden

of proof since the Bergeron standard governed the disposition of the underlying

question of fact, namely whether a modification was warranted. The trial judge, in

his oral reasons for judgment, engaged in a lengthy discourse wherein he candidly

shared life experiences and even drew conclusions based upon them to rule on the

issue of custody. Although we commend the trial judge for his empathy and

openness, it is our duty to follow the rule of the law when the law is well-settled and

clear.

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Here, the relevant inquiry that needed to be made was whether the

continuation of the 1997 considered decree was so deleterious to Karly as to justify

its modification, or, alternatively, whether Ms. Prevost or Mr. Baudin proved by clear

and convincing evidence that the harm likely to be caused by a change of

environment was substantially outweighed by its advantages to Karly. After a de

novo review, we find that nowhere in the record does any evidence appear that would

indicate that in light of the aforementioned standard of proof, a modification to the

1997 judgment was warranted in favor of either Ms. Prevost or Mr. Baudin.

IV.

CONCLUSION

After a thorough de novo review of the entire record, we conclude that

the evidence presented at trial by both parties failed to meet the Bergeron standard

warranting a modification to the 1997 considered decree from joint custody to shared

custody. Furthermore, we conclude that the modification of the 1997 judgment by

the trial court from joint custody to 50/50 shared custody was unwarranted under the

facts and the law. Accordingly, the trial court was legally incorrect in modifying it.

Therefore, we render judgment returning the custodial arrangement of Karly Baudin

to that set forth in the September 11, 1997 judgment.

REVERSED AND RENDERED.

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

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