Quinton D. Steele v. Jasmine S. Ashworth

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-527

QUINTON D. STEELE

VERSUS

JASMINE S. ASHWORTH

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. 20080980
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

AFFIRMED.

Larry Edward Pichon
Attorney at Law
330 Alamo St., Suite G
Lake Charles, LA 70601
(337) 439-3073
COUNSEL FOR PLAINTIFF/APPELLANT:
Quinton D. Steele

Jasmine S. Ashworth
In Proper Person
508 Bilbo St.
DeRidder, LA 70634
(337) 401-6285

SAUNDERS, Judge

This is an appeal from a custody determination and judgment rendered by

the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Quinton J. Steele (hereafter “Appellant”) and Jasmine S. Ashworth

(hereafter “Appellee) are the parents of a minor child, Conner Steele. On

September 16, 2008, Appellant filed a Petition to Establish Paternity and Custody.

On March 16, 2009, the trial court issued an oral ruling, recognizing Appellant as

the biological father of the minor child. At the same time, an Interim Order was

issued, awarding “joint care, custody, and control” of the minor child to the parties.

On April 13, 2009, a hearing was held on Appellant’s Rule to Set Permanent

Custody. The testimony of Appellant, Appellee, and Laura Landry, Appellant’s

wife, was heard. An oral ruling with reasons was issued, granting joint custody to

the parties, with Appellee being designated domiciliary parent with Appellant

having visitation according to the court’s Standard Custody Implementation Plan.

Judgment was signed on September 24, 2013, awarding “permanent joint care,

custody, and control of the minor child.” Appellee was designated as the

domiciliary parent. An Implementation Plan was issued.

On September 23, 2013, Appellee, pro se, filed a Rule for Contempt,

alleging that Appellant took the minor child without her permission. On

September 24, 2013, the trial court ordered the minor child be returned to Appellee

and set the matter for review. Appellant filed a response to the rule, alleging the

minor child had been in his care, with Appellee’s permission, since the summer of

2012. He further alleged that he and Appellee had agreed the child would remain

in his custody, with Appellee exercising visitation in her home. On October 11,

2013, Appellant filed a Petition for Change of Custody and Stay of Return Order,

again alleging that, with Appellee’s permission, he had physical custody of the

child since the summer of 2012. He requested sole custody with visitation being

granted to Appellee and a stay of the order to return the child until a hearing could

be had on the request to change custody. The request for stay was denied, and the

matter was set for hearing.

Hearing was held on December 19, 2013, at which the trial court heard the

testimony of the parties. The matter was taken under advisement, and judgment

was rendered on January 2, 2014, in which the trial court denied the Petition for

Change of Custody, finding that Appellant failed to meet the burden of proof for a

change of custody following the rendition of a considered decree. It is from this

judgment that this appeal arises.

DISCUSSION

In his appeal, Appellant first asserts the trial court erred in not considering a

letter written to the court by the minor child. Appellant also asserts the trial court

erred in finding that the standard announced in Bergeron v. Bergeron, 492 So.2d

1193 (La.1986), applied to Appellant’s request to change custody.

Assignment of Error Number One:

Appellant asserts that the trial court did not properly consider a letter written

by the minor child, in which the child complained he was “hit” by Appellee. In

support of his argument, he contends, “If the court properly considered the letter

then the court could have concluded that it would be deleterious to leave the child

with the mother appellee.”

There is nothing to indicate the trial court did not consider the letter. To the

contrary, it appears the trial court did, in fact, consider the content of the letter and

made the decision to report the allegation that Appellee “hit” the child to the Office

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of Community Services, the agency charged with investigating complaints of child

abuse. When the letter was introduced, the trial court explained:

THE COURT:

In the Court’s opinion at this time. It does not reach that
level. I can -- because I saw this letter; I don’t know
what effect the letter has. I don’t know the situation, and
I’m not going to talk to an eight-year-old child -- I can
ask OCS to investigate the situation and talk to an eight-
year-old child. But teachers are mandatory reporters. In
other words, if they believe the child was hurt, and the
child told them, they would report it, and the
investigation would immediately occur. I’m a mandatory
reporter. Mr. Pichon’s a mandatory reporter. So, I will
tell them, and they’ll investigate the situation, and they’ll
probably continue to do that.

In the absence of any details, the trial court “could have concluded” that the

child may have been abused and that it would be harmful to the child to maintain

custody in Appellee. However, without any context, the trial court was also

entitled to conclude that there may, in fact, have been no actual abuse. Where

there are two permissible views of the evidence, there cannot be manifest error.

LeBlanc v. Calcasieu Parish Sch. Bd., 02-728 (La.App. 3 Cir. 12/30/02), 834 So.2d

1258 (citing Seal v. Gaylord Container Corp., 97-0688 (La. 12/2/97), 704 So.2d

1161; Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993)).

Accordingly, we find this assignment is without merit.

Assignment of Error Number Two:

In his second assignment of error, Appellant asserts the trial court erred in

finding that the heightened burden of proof announced in Bergeron applied to his

request to change custody because a change of custody had already occurred when

the child began to reside with him. He asserts that, if it should have been applied,

it was to the change of physical custody from Appellant back to Appellee.

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The burden of proof required to modify an order of custody depends on

whether the trial court previously rendered a considered decree. Martin v. Martin,

11-1496, (La.App. 3 Cir. 5/16/12), 89 So.3d 526. To modify a considered decree,

the party seeking modification “must first show that a change of circumstances

materially affecting the welfare of the child has occurred since the prior custody

order.” Barlow v. Barlow, 14-361 (La.App. 3 Cir. 10/1/14), __ So.3d __, __ (citing

Bergeron v. Bergeron, 492 So.2d 1193 (La.1986)). Then, the party seeking

modification must show:

that the continuation of the present custody is so
deleterious to the child as to justify a modification of the
custody, or of proving by clear and convincing evidence
that any harm likely to be caused by a change of
environment is substantially outweighed by the
advantages to the child. Bergeron v. Bergeron, 492 So.2d
1193 (La.1986); Wilson v. Wilson, 30,445 (La.App. 2 Cir.
4/9/98), 714 So.2d 35.

A considered decree is one for which evidence as to
parental fitness to exercise custody is received by the
court. Evans v. Terrell, 27,615 (La.App. [2d Cir.] 2/6/95
[12/6/95]), 665 So.2d 648, writ denied, 96–0387 (La.
5/3/96), 672 So.2d 695. By contrast, a judgment with a
custody plan that was entered by default, was not
contested[,] or was merely entered by consent of the
parties is not a considered decree. Barnes v. Cason,
25,808 (La.App. 2 Cir. 5/4/94), 637 So.2d 607, writ
denied, 94–1325 (La. 9/2/94), 643 So.2d 149.

Martin, 89 So.3d at 528 (quoting Schuchmann v. Schuchmann, 00–094, p. 3

(La.App. 3 Cir. 6/1/00), 768 So.2d 614, 616) (quoting Roberie v. Roberie, 33,168,

p. 3 (La.App. 2 Cir. 12/8/99), 749 So.2d 849, 852) (alterations in original).

The trial court’s determination concerning whether the heightened burden of

proof to modify a considered custody decree has been met is a question of fact,

which will not be disturbed on appeal absent manifest error. Oliver v. Oliver, 95–

1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081. To make a finding that the trial

court committed manifest error, an appellate court must find that the entire record
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reveals that there was no reasonable factual basis for the trial court’s finding and

that the finding is clearly wrong. Id.

Finally, “’[a] trial court’s determination regarding child custody is to be

afforded great deference on appeal and will not be disturbed absent a clear abuse of

discretion.’” Martin, 89 So.3d at 528 (quoting Franklin v. Franklin, 99–1738, p. 4

(La.App. 3 Cir. 5/24/00), 763 So.2d 759, 762). Custody cases are decided upon

their own particular facts and circumstances, but the “paramount” consideration is

the best interest of the child. McManus v. McManus, 13-699, p. 3 (La.App. 3 Cir.

12/11/13), 127 So.3d 1093, 1095 (quoting Hebert v. Blanchard, 97–550, p. 4

(La.App. 3 Cir. 10/29/97), 702 So.2d 1102, 1105). On a request to modify a

considered decree, if the heightened burden of proof is met, then the trial court

must then determine the best interest of the child. Harvey v. Harvey, 13-81

(La.App. 3 Cir. 6/5/13), 133 So.3d 1, writ denied, 13-1600 (La. 7/22/13), 119

So.3d 596.

In the instant case, the trial court correctly concluded that the September 24,

2013 judgment memorializing the April 13, 2009 oral ruling was a considered

decree because testimonial evidence was heard at the April 13, 2009 hearing.

Although Appellant urges us to find the heightened burden of proof applies to the

change of physical custody from Appellant to Appellee, and not to his request to

modify the considered decree rendered by the trial court, there is no support in the

law for this proposition. Therefore, we conclude that the strict standards of

Bergeron apply to Appellant’s request to modify the trial court’s September 24,

2013 considered decree.

In his appeal, Appellant asserts that the facts that the child lived with

Appellant for one year and “was doing well” are changes in circumstances since

the prior custody order which materially affected the child’s welfare. Although the
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trial court’s judgment did not address this prong of the Bergeron standard of proof,

we disagree with Appellant. The record indicates that the parties mutually agreed

that the child would live with Appellant temporarily, apparently to attend school

for one year. We will not allow the domiciliary parent’s decision to allow the child

to have more liberal access to his non-domiciliary parent to serve as the basis for a

change of custody.

The record supports the trial court’s conclusion that Appellant did not prove

that “that the continuation of the present custody is so deleterious to the child as to

justify a modification of the custody, or . . . that any harm likely to be caused by a

change of environment is substantially outweighed by the advantages to the child.”

Bergeron, 492 So.2d 1193. Appellant asserts that the child’s lower grade in

reading, the mild injury to the child’s eye with dishwashing liquid, the comments

by Appellee to the child that he may be homosexual and would not get a birthday

present because he broke a television, and the physical restraint of the child by

Appellee during an altercation between Appellant and Appellee are circumstances

which prove the child “could be harmed” by continuing the current custody in

Appellee. However, a slightly lower reading grade, a minor injury to his eye,

mildly inappropriate comments, and physical restraint of the child during a

physical altercation between the parties, which caused no injury to the child, are

not such harmful circumstances as to justify a modification of the custody decree.

Appellant’s own testimony indicates he did not believe the continuation of

the current custody was so harmful to the child as to justify a change of custody.

Appellant testified:

Q. What is it that you would actually like the Court to do?

A. Uhm, for any reason, I just really want to be a big part of my son’s
education. I just really want to be involved with him while he goes to
school because that plays a big part in his life.
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In a colloquy with the court, Appellant stated:

THE COURT:
But that doesn’t mean I change custody.

APPELLANT:
Yes, ma’am. I understand that, and I’m not really trying to change
custody. I just really feel like I need to be a bigger part of my son’s life as
opposed to every other weekend.

When Appellee cross-examined him, he further testified (emphasis added):

Q. And another question I have is, uhm, why – Conner’s been with me
all his life. I let him stay with you for a year and now all of a sudden
[my] home is unfit. Why?

A. Jasmine, it’s not that your home is unfit. It’s simply because I, and
this is just my opinion, I feel like you don’t take more responsibility
into the seriousness of the stuff that you have goin’ on and to where if
anything small can happen, that’s my child’s life. Just like that’s your
child, that’s my child also.

....

A. Even when I’m not able to be around him, I would still like to know
how he’s doin’. Jasmine, not one time did I say yo’ house was
unstable. The only thing I disagree about was with Keith doin’ the
tattoos while Conner was there. That’s the only thing I disagreed
about.

Given the above testimony, it appears that the crux of Appellant’s request to

change custody was that he wanted to play a larger role in his child’s life, not that

the current custodial situation is “so deleterious” as to justify a change in the

current custody decree. A considered decree may not be modified simply because

one parent wishes to be more involved with the child. Thus, the trial court did not

err in concluding that Appellant did not prove “that the continuation of the present

custody is so deleterious to the child as to justify a modification of the custody.”

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CONCLUSION

For the foregoing reasons, we conclude Appellant’s assignments of error are

without merit. Therefore, the judgment of the trial court is affirmed in all respects.

Costs of this appeal are assessed equally between the parties.

AFFIRMED.

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