Ramona Andrews Denton v. Bobby Gene Denton, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-990

RAMONA ANDREWS DENTON

VERSUS

BOBBY GENE DENTON, JR.

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 32,463
HONORABLE JOHN PHILIP MAUFFRAY, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and
Billy Howard Ezell, Judges.

AFFIRMED.
MOTION TO STRIKE
GRANTED IN PART.

Walter E. Dorroh, Jr.
Dorroh & Kendrick, a PLC
P. O. Box 1889
Jena, LA 71342
(318) 992-4110
COUNSEL FOR:
Plaintiff/Appellee - Ramona Andrews Denton

Bobby Gene Denton, Jr.
In Proper Person
1803 Martin Luther King, #1015
Houma, LA 70503
(601) 955-5365

THIBODEAUX, Chief Judge.

Bobby Gene Denton, Jr., pro se appellant, appeals the trial court’s

judgment denying his request for sole custody of his minor son, Bobby Gene “Trey”

Denton, III (Trey).1 Mr. Denton seeks a reversal of the judgment which maintained

his ex-wife’s, Ramona Andrews Denton Francis’s (Mrs. Francis), domiciliary custody

of Trey. Mrs. Francis has filed a motion to strike the appellant’s briefs, due to their

lack of compliance with the requisite appellate rules governing the form and

substance of briefs. She also has asked that penalties be assessed to Mr. Denton for

the filing of a frivolous appeal.

The motion to strike is granted in part. Consideration was not given to

matters and issues raised that were not contained within the record or properly

preserved for appeal. The claim of frivolous appeal is denied. The trial court’s

judgment is affirmed.

I.

ISSUES

1. Did Mr. Denton carry the burden necessary to justify
a modification of the permanent joint custody
decree?

2. Should Mr. Denton be assessed court costs and
penalties for filing a frivolous appeal?

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Mr. Denton sought sole custody of both his two minor children; however, the issue of
modification of the joint custody plan was decided in separate hearings for each child. The subject
of this appeal is only the custody of the son.

II.

FACTUAL BACKGROUND

Mr. Denton and his ex-wife, Mrs. Francis, were divorced in 2001 after

ten years of marriage. During the marriage, they lived in their mutual hometown of

Jena, Louisiana and had two biological children, a daughter and a son, Trey. By all

accounts, their daughter, who is fourteen years old, is a developmentally normal

child. Trey, age eleven, is autistic and does not speak. A consent judgment as to the

custody of the children was rendered in 2001, granting the parents joint custody, with

domiciliary status awarded to Mrs. Francis, who had always been the primary

caretaker, and visitation to Mr. Denton. The judgment of divorce filed in 2002 made

the custody permanent.

Mr. Denton remarried in 2002. The litigation, however, between the

parties continued due to their inability to amicably settle matters involving the

children, child support, visitation, and property. The issue of a change in custody was

ultimately raised in June of 2006, when Mr. Denton filed a Rule for Modification of

the Joint Custody Plan, asking to be designated as the domiciliary parent for both

children. Regarding his son, Trey, he asserted that his sole custody of Trey was

justified because of his superior ability and desire to provide Trey with better autism

treatment programs and education than that which his son was receiving through the

LaSalle Parish public school system while living with his mother, who he alleged was

impeding Trey’s development. Moreover, he claimed that Mrs. Francis had been

leaving their son alone with his pre-teenaged sister without proper adult supervision

for extended periods of time. Mrs. Francis opposed any changes in custody.

No action was taken on the motion, and as of March 2007, Mr. Denton’s

request for a modification of the custody plan remained unresolved. At that time,

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through different counsel, he re-urged his request for sole custody and sought

emergency temporary custody of the children through an Ex Parte Motion for

Temporary Child Custody, Rule for Sole Custody, and Incorporated Memorandum

of Law. He alleged in this pleading that he should be granted sole custody of the

children because of multiple changes in the parties’ circumstances, which included

essentially allegations of a being able to provide a more stable home environment

and, again, the ability to provide Trey with better opportunities for the treatment of

his autism.

He also asserted that Mrs. Francis, who remained unmarried at the time,

had been repeatedly exposing the children to the physical and verbal abuse occurring

between her and her then-boyfriend, Todd Lipsey. According to Mr. Denton’s

motion, Mrs. Francis exercised poor judgment by resuming a relationship with Mr.

Lipsey and continuing to allow him into the home and in the children’s presence after

a particularly egregious incident occurred. He reported that Mr. Lipsey had been

arrested for entering the home, while Mrs. Francis and the children were present,

pouring gasoline throughout, and threatening to set the home on fire.

The trial court granted the ex parte request for temporary sole custody

of both children pursuant to La.Code Civ.P. art. 3945, and granted supervised

visitation only to Mrs. Francis. At the subsequent hearing on the issue held a few

weeks later, the trial court maintained temporary custody of the children with Mr.

Denton and granted Mrs. Francis’ request for mental health counseling and

evaluations of the children and parties.

Mary Girard, LPC, LMFT, and Cindy Nardini, LPC, LMFT, counselors

at the Life Solutions Counseling Agency, provided individual counseling,

respectively, to the parties’ daughter and to Mrs. Francis. A few months later, due to

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the parties’ ongoing disagreements and the escalation in the filing of motions seeking

court intervention on a multitude of matters, the trial court ordered Ms. Girard and

Ms. Nardini to engage in collaborative counseling to assist Mr. Denton and Mrs.

Francis in communicating. Individual and joint sessions were held, but the

counselors submitted a joint letter in January 2008 to the court, advising that they had

been unsuccessful in facilitating any collaborative co-parenting between the parties.

Based on their observations, they concluded Mr. Denton and his current

wife were exhibiting unreasonable negativity, resentment, and unsupported criticism

of Mrs. Francis. The counselors suspected stress in the relationship between Mr.

Denton and his current wife due to the large amount of time he spent away from home

during the week at work, leaving much of the daily care of the children to his wife.

Mr. Denton works as a construction supervisor. The counselors stated that they found

it unacceptable that Trey did not have his own bedroom at his father’s home as well.

The counselors advised the court that although Mr. Denton blamed Mrs. Francis for

retarding Trey’s development, they believed his allegations to be unsupported, since

there was no evidence that Trey was receiving any special treatment for his autism

while under his care. The counselors also expressed concern to the court about Mr.

Denton’s ongoing, inappropriate use of the parties’ daughter as a messenger due to

the parties’ unwillingness to speak to each other. The counselors reported a very

favorable view of Mrs. Francis, stating that she had been cooperative and responsive

to their recommendations. They concluded the letter by recommended to the court

that Mrs. Francis’ domiciliary status be reinstated.

Shortly after this letter was issued to the court, Mrs. Francis filed a

motion seeking a “modification of the . . . temporary [custody] order,” relying on the

recommendations of the counselors that Trey be returned to her physical permanent

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custody. The parties agreed that hearings on the children’s custody would be held

separately. Therefore, in March, the trial court held a contradictory hearing in which

the parties presented evidence regarding a modification of the joint custody plan as

it pertains to their son, Trey. Mr. Denton offered only the testimony of his wife as

evidence. Mrs. Francis testified and also offered the testimony of Ms. Nardini and

Ms. Girard at the hearing.

The trial court orally denied Mr. Denton’s request for modification of the

joint custody decree, stating that joint custody would be maintained and that Mrs.

Francis would retain her status as domiciliary parent of Trey. Mr. Denton filed this

appeal, pro se. Mrs. Francis responded to the appeal with a motion for frivolous

appeal and motions to strike the appellant’s briefs.

III.

LAW AND ANALYSIS

Modification of Joint Custody Decree

Louisiana law requires Mr. Denton, as the mover seeking modification

of a considered permanent joint custody consent decree, show that a change in

circumstances materially affecting the welfare of the child has occurred since the

prior order respecting custody, and the proposed modification of the decree is in the

best interest of the child. Evans v. Lundgrin, 708 So.2d 731 (La.1998); Bergeron v.

Bergeron, 492 So.2d 1193 (La.1986). The purpose of the best interest principle is to

recognize in all cases the child’s substantive right to the custodianship that best

promotes his welfare. Bergeron, 492 So.2d 1193. Article 134 of the Civil Code sets

forth a non-inclusive list of factors to be considered when determining the child’s best

interest:

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Art. 134. Factors in determining child’s best interest

The court shall consider all relevant factors in
determining the best interest of the child. Such factors may
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.

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

La.Civ.Code art. 134.

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The trial court’s determination of custody is entitled to great weight and

will be overturned on appeal only when there is a clear abuse of discretion.

Thompson v. Thompson, 532 So.2d 101 (La.1988). We find no abuse of the trial

court’s discretion in this case.

Examining the record as a whole, it is clear that Mr. Denton failed at trial

to produce any evidence of any change in circumstances materially affecting Trey’s

welfare that would justify a permanent custody change. The children had been placed

in Mr. Denton’s temporary physical custody solely because of their exposure to the

ongoing abusive relationship between their mother and Todd Lipsey. At trial, it was

established that the relationship with Todd Lipsey had ended and that an improved

home environment had been created by Mrs. Francis.

Specifically, unrebutted testimony was presented at trial by Mrs. Francis’

counselor, Cindy Nardini, regarding the resolution of the dangerous situation created

during the relationship with Todd Lipsey. Ms. Nardini, who counseled Mrs. Francis

for approximately one year, testified that Mrs. Francis had recognized her errors in

judgment made during the relationship with Todd Lipsey and ended the relationship

very quickly after her children were placed in their father’s physical custody.

Notably, Mr. Denton also testified at the hearing that he no longer believed such a

danger continued to be posed to the children while in their mother’s care.

The evidence presented revealed that Mrs. Francis had remarried and

there was no evidence of any apparent conflict in that marriage presented to the court.

Rather, Mrs. Francis’ unrebutted testimony alleged that her new husband was an

involved stepfather who shared in Trey’s care and who shared a mutually loving

relationship with her son. Mrs. Francis further presented evidence and testimony of

a home environment in which Trey would have his own room—which he currently

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did not have at his father’s home. Evidence was also presented that Mrs. Francis’

home was properly maintained and secured, inside and outside, for Trey’s safety and

comfort.

Although Mr. Denton’s capacity to present evidence was clearly limited

due to his task of representing himself throughout the hearing, the trial court, we find,

made reasonable determinations about both parties’ mutual love, affection, desire, and

financial ability to provide a suitable home for Trey. Nevertheless, considering the

evidence and testimony offered, we cannot say that the trial court abused its

discretion in its determination to deny the request for modification of the original

joint custody order.

The request for damages due a frivolous appeal are denied. Appeals are

favored and we find no proof that Mr. Denton filed this appeal for purposes of delay,

in the absence of a serious legal question, or because he does not seriously believe in

the position advanced. See State Farm Mut. Auto. Ins. Co., v. Callahan, 571 So.2d

852 (La.App. 3 Cir. 1990), writ denied, 576 So.2d 51 (La.1991).

IV.

CONCLUSION

The judgment of the trial court is affirmed. Appellee, Ramona Andrews

Denton Francis’ Motion to Strike Original and Reply Brief is granted in part and her

request for damages due to frivolous appeal are denied. Costs of this appeal are

assessed to appellant, Bobby Gene Denton, Jr.

AFFIRMED.

MOTION TO STRIKE GRANTED IN PART.

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

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