Margaret Kendrick v. Jody Kendrick

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1153

MARGARET KENDRICK

VERSUS

JODY KENDRICK

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 22399
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of Marc T. Amy, John E. Conery, and David Kent Savoie, Judges.

AFFIRMED.

Henry H. Lemoine, Jr.
Attorney at Law
607 Main St.
Pineville, LA 71360
(318) 473-4220
COUNSEL FOR DEFENDANT/APPELLANT:
Margaret Kendrick

Scott M. Prudhomme
Attorney At Law
457 Second Street
Colfax, LA 71417
(318) 664-6129
COUNSEL FOR PLAINTIFF/APPELLEE:
Jody Kendrick

SAVOIE, Judge.

In this custody dispute, the father sought to modify an existing joint custody

judgment rendered by default so as to designate himself as the domiciliary parent.

After trial, the trial court awarded the parties “joint and shared custody,” and

designated the father as the domiciliary parent, with the parties equally sharing the

physical custody of the child on an alternating weekly basis. The mother has

appealed. For the reasons that follow, we affirm.

Factual and Procedural Background

Jody Kendrick (“Jody”) and Margaret Kendrick Dufour (“Margaret”) were

married on May 29, 1998. Their only child, Brooke, was born on September 17,

2002. During the parties’ marriage, they resided in Georgetown, Louisiana, and

Brooke attended school in Georgetown. Margaret worked as a registered nurse, and

Jody testified he did not work due to a disability.

Margaret filed for divorce on October 31, 2012. Jody subsequently filed an

affidavit waiving formal citation, service of process, notice, and appearance at trial,

and consenting to a default judgment. A preliminary default was entered

November 13, 2012. On November 27, 2012, both Jody and Margaret submitted

affidavits attesting to their agreement of a joint custody arrangement. A “Judgment

of Divorce” was rendered November 27, 2012, wherein the parties were awarded

joint custody of Brooke, with Margaret designated as the “primary custodial

parent,” subject to reasonable visitation by Jody, which was in accordance with the

agreement set forth in the parties’ affidavits. Jody was also ordered to pay child

support in the amount of $400.00 per month.

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Following the divorce, Jody continued to reside in Georgetown, and,

testified that at the time of trial in August 2014, he had worked as a logger for

about a year and a half. He has not remarried.

Margaret has moved several times following the divorce, changed employers

and job locations multiple times, and remarried twice. In March 2013, she married

John Coutee, and resided with him for a short time at Margaret’s mother’s house in

Converse, Louisiana, along with Margaret’s older daughter from a previous

marriage. In the fall of 2013, Brooke began sixth grade in Converse. In October

2013, Brooke went back to school in Georgetown, where she has continued to

attend. There was testimony that Margaret thereafter moved to Bentley, Louisiana,

and then to Pollock, Louisiana. There was also testimony that the parties attempted

to reconcile their relationship in late 2013 through early 2014.

There was conflicting testimony at trial regarding the amount of time Brooke

spent with the respective parties from the time the parties divorced through May of

2014. The parties also testified that Brooke is, and always has been, a good student,

is mature, and that she does well in several different sports.

In May 2014, Margaret and Mr. Coutee divorced. Margaret testified that Mr.

Coutee was abusive during their marriage. Margaret married Keith Dufour in May

2014. At the time of trial, Margaret and Keith resided together in Pineville,

Louisiana, in a three-bedroom house that they rented from Job Prudhomme. Mr.

Prudhomme also lived with them.

Keith Dufour works as a registered nurse. He has two sons, ages 11 and 15,

from a prior marriage. Margaret testified that Mr. Dufour has physical custody of

his boys every other weekend, and every other week during the summer. In

addition, Margaret’s older daughter from a prior marriage resides with them in the

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summer or whenever she is home from college. Margaret testified that she and Mr.

Dufour were in the process of saving for a down payment on a new home.

Margaret testified that she sought legal assistance to collect back-due child

support from Jody in May 2014 and demanded payment from Jody. On June 6,

2014, Jody filed a “Rule to Modify Custody and Child Support” seeking joint

custody of Brooke, the designation of Jody as the domiciliary parent subject to

reasonable visitation by Margaret, and termination of child support. Margaret filed

an “Answer and Reconventional Demand” seeking back-due child support.

The parties testified that during the summer of 2014 and through the date of

trial, they equally shared the physical custody of Brooke on an alternating weekly

basis. Margaret testified that, at the time of trial, Brooke was enrolled in school in

Pineville, and that school was to begin several days following trial.

A trial was held on August 5, 2014. The trial court ultimately awarded “joint

and shared” custody of Brooke to the parties, designated Jody as the domiciliary

parent, and set forth an “implementation plan” where the parties alternate physical

custody of Brooke in one-week intervals and alternate holidays. The trial court also

terminated Jody’s future child support obligation, but awarded Margaret back-due

child support in the amount of $6,330.00.

Discussion

I. Assignment of Error 1: Applicable Burden of Proof

Margaret first contends that the prior default judgment designating her as the

“primary custodial parent” was a considered decree, and that the trial court erred

by failing to apply the heavy burden of proof applicable to considered custody

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decrees as enunciated in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986)1. The

trial court applied the lesser burden applicable to modification of stipulated

custody judgments and determined that there had been a material change of

circumstances since the original custody decree and that the proposed modification

was in the best interest of the child. See Evans v. Lungrin, 97-541, 97-577 (La.

2/6/98), 708 So.2d 731.

We disagree with Margaret and find that the trial court applied the correct

burden of proof. Our court has recognized that child custody agreements obtained

by default judgments are not considered decrees:

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), 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. 2d Cir. 5/4/94), 637 So.2d 607, writ
denied, 94-1325 (La. 9/2/94), 643 So.2d 149.

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 (La.App. 2 Cir. 12/8/99), 749 So.2d 849)

(emphasis added). See also, Link v. Link, 13-1441 (La.App. 3 Cir. 5/7/14), 139

So.3d 659.

Our court has further recognized that evidence of parental fitness presented

at a hearing to confirm a preliminary default does not render a default judgment a

considered custody decree. Link, 139 So.3d 659. “[A] considered decree in the best

interest of the children mandates a higher evidentiary consideration of the

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Per Bergeron, 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.

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circumstances of the litigants that is simply not met by a default judgment

proceeding.” Id. at 663.

In the instant matter, the prior custody judgment was a default judgment

rendered upon submission of affidavits by the parties wherein they attested to an

agreement regarding custody. No testimony was presented in open court. Therefore,

the original custody judgment is not a considered decree, and modification thereof

is subject to the lesser burden stated in Evans, 708 So.2d 731.

Margaret notes that the trial court stated that the default judgment was a

considered custody decree. This is harmless error since the trial court did not apply

the burden set forth in Bergeron, 492 So.2d 1193. See Link, 139 So.3d 659.

Because the trial court’s oral reasons show that it correctly applied the burden

applicable to modification of stipulated custody decrees, despite its designation of

the default judgment as a considered decree, de novo review of the record is not

warranted.

II. Assignments of Error 2 and 3:
Change of Domiciliary Parent was In The Best Interest of the Child

Margaret next contends that the trial court erred in designating Jody as the

domiciliary parent because (1) the facts do not support a finding that doing so was

in Brooke’s best interest, and (2) the trial court’s ruling was based on a speculative

concern regarding the opportunity for sexual conduct between one of Margaret’s

husband’s sons and Brooke arising from the children sharing a room, when there

was no evidence, or suggestion, of any such conduct presented by the parties at

trial.

The standard of review in child custody matters has been clearly stated by

this court:

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[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. Cooley v. Cooley, 94-251 (La.App. 3 Cir. 10/5/94),
643 So.2d 408; Mayeux v. Mayeux, 93-1603 (La.App. 3 Cir. 6/1/94),
640 So.2d 686.

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 a child custody proceeding, the trial court must consider all factors

relevant to the child’s best interest. La.Civ.Code art. 134. Further,

[t]he court is not bound to make a mechanical evaluation of all of the
statutory factors listed in La. C.C. art. 134, but should decide each
case on its own facts in light of those factors. The court is not bound
to give more weight to one factor over another, and when determining
the best interest of the child, the factors must be weighed and
balanced in view of the evidence presented. Moreover, the factors are
not exclusive, but are provided as a guide to the court, and the relative
weight given to each factor is left to the discretion of the trial court.

Thibodeaux v. O’Quain, 09-1266, p. 5 (La.App. 3 Cir. 3/24/10), 33 So.3d 1008,

1013 (quoting Cooper v. Cooper, 43,244 (La.App. 2 Cir. 3/12/08), 978 So.2d

1156).

In its oral reasons for judgment, the trial court thoroughly considered each of

the factors of La.Civ.Code art. 134, stating as follows:

[T]he court will then consider the love, affection, and emotional
ties between each party and the child. Both parties have testified that
they are involved in their child’s education [and] her activities. Based
upon the testimony that has been presented today, the Court is of the
opinion that [Margaret] has been the primary caretaker of the child for
much of her life.

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[:] Based upon the testimony, I think the parties
are equal in their ability to love and to give affection to the child. I
think that each of them show[s] and express[es] their love towards the
child in different ways. [Jody] is involved in different aspects of her
life, as fathers are. [Margaret], I think you are involved in other areas
of her life. . . . Regarding the spiritual guidance, the testimony was
that while Brooke is in [Jody’s] home that they attend Beulah Baptist

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Church. While Brooke is at Mrs. Margaret’s home they attend
Christian Worship Center service. Apparently Mr. Dufour attends
Sacred Heart. So, apparently they do not go to church as a family.
Regarding the ability to continue the education and rearing of the
child, given that [Margaret] is an RN, it indicates to the Court that she
places a significant value on education and the ability and benefits
that come from that, however, recent history is very concerning to the
Court. Brooke is going to go to school wherever it is more convenient
for [Margaret] to take her to school, whether that’s Georgetown,
whether that’s Converse, whether that’s Pineville, that’s not how you
decide where your child is going to go to school.

....

The capacity and disposition of each party to provide the child
with food, clothing, medical care, and other material needs[:] … I
think history has indicated that [Margaret] has been the primary
provider for Brooke during her life. [Jody] has recently began
working and has recently been providing for her needs to a certain
extent, however, we’ve got more than a year and half history under
our belt. And [Margaret] is the one providing the medical insurance.
She is the one that has consistently been working and providing for
the child’s needs. The Court thinks that factor weighs in her favor.

The length of time that the child has lived in a stable adequate
environment and the desirability of maintaining continuity in that
environment[:] . . . We have a child who lived for approximately 10
years in Georgetown, then she moved to Bentley, then she moved to
Converse, then she moved to Bentley or Georgetown depending on
who you believe. Then she moved to Pineville, and we’re trying to
move again but we don’t know where. Dad has always lived in
Georgetown. I don’t think we could drive him out of Georgetown. I
guess, [Margaret] what concerns me somewhat about all the moves
and all the men, is that the entire time you were working as a
Registered Nurse, you had the financial ability to provide more
stability for your daughter than you did. And the lack of stability is a
serious concern for the Court. The Court thinks that this factor
strongly weighs in favor of [Jody].

The permanence as a family union of the existing or proposed
custodial homes; again, that factor clearly weighs in favor of [Jody]. I
don’t know where [Margaret’s] moving after [her current home in
Pineville]. I don’t know who is going to live there[.] . . . [Margaret’s]
current living condition, has only existed a few months.

The moral fitness [of] each party insofar as it affects the child[:]
there have been allegations of [Jody] being abusive during the
marriage, the Court did not see that in any of the pleadings. There was
no proof introduced to support that. With respect to the moral fitness

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of [Margaret], there’s been testimony and some evidence presented
today [of Margaret] living with men and bringing men around the
children while she was married to another man, there is a moral aspect
to that issue that the Court notes. The Court is really more concerned
about the introduction of these men that [Margaret] barely knows, to
the child as a father figure. Mr. Dufour complained on the stand
that … the child does not view him as a father figure yet. . . . It takes
time to be a father or to be viewed as a father. . . . So, we go from
Coutee, who was an abusive drunk, back to [Jody] who is by
[Margaret’s] testimony abusive and not a good provider. Now, we are
with Mr. Dufour. I do have some concerns about the, whether it’s the
moral decision-making of [Margaret], I have some abilities [sic] about
[Margaret’s] decision making as it affects the child and how well
she’s thinking these things out. Because, in the [Court’s] opinion,
she’s not.

The mental and physical health of each party[:] there’s been no
testimony that [either] party is either mentally or physically impaired.

....

The home, school, and community history of the child[:] that
factor clearly weighs in favor of [Jody,] [a]s the home, school and
community history of the child, although only for 10 years, has been
Georgetown. The reasonable preference of the child[:] that has not
been presented …

The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and
the other party[:] … [I]t sounds like the parties were doing a pretty
good job of maintaining that relationship and facilitating a
relationship between the child and the parents until child-support got
involved … The Court expects that once this is settled that the parties
will be able to cooperate with each other and continue to parent this
child.

The distance between the respective residences[:] currently
[Margaret] is residing in Pineville, she works in Olla. Every day that
she works she drives right past Georgetown. So, the distance is not
that great. . . . [Jody] has indicated a willingness to drive wherever to
meet [Margaret] for any custody changes that are necessary. Therefore,
the Court does not feel that the distance between the current
residences will pose a problem for the custody schedule that will be
imposed.

The responsibility for the care and rearing of the child
previously exercised by each party[:] as the Court previously
indicated, that prior to this past [s]ummer, I think that [Margaret] was
clearly the primary custodian of the child[, n]oting that [Jody] has

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been in the child’s home until the divorce. Prior to the divorce [Jody]
was not working, therefore he would’ve been there and assisted in
rearing of the child. Since the divorce, it sounds like Brooke has been
primarily with the mother with the exception of this past [s]ummer
where the child was spending an approximately equal amount of time
between the parties. . . .”

Given the parties[’] work schedules, the support system that
[Jody] has in place, the support system that [Margaret] has in place,
that has previously been exercised by both of them … [Margaret] has
used her mother, she has used her [older] daughter. [Jody] has his
mother, he has other family in the area. These parties are both
working. . . . The Court thinks this is clearly a case where the parties
should share equal custody of the child. . . . The primary issue is
domiciliary designation. As I indicated … I have some serious
problems with the decisions [Margaret has] made over the past two
years and the decisions [she is] continuing to make, particularly
allowing the child to stay in a room with two teenage boys that she
barely knows. . . . [T]herefore, I’m going to designate [Jody] as the
domiciliary parent.

The trial court’s well-reasoned analysis of the factors set forth in

La.Civ.Code art. 134, the weight it gave to each of the factors, and its ultimate

decision are given great weight, and are reasonably supported by the testimony and

evidence in the record. Therefore, we find no error with the trial court’s assessment

of the best interest of the child under La.Civ.Code art. 134, or its designation of

Jody as domiciliary parent.

Margaret argues on appeal that the trial court impermissibly based its

designation of Jody as the domiciliary parent on the opportunity for sexual conduct

between Brooke (age eleven) and Mr. Dufour’s sons (ages eleven and fifteen), who

share a room at Margaret’s home in Pineville. While we agree with Margaret that

the record does not support a finding that any such conduct has occurred, as shown

above, the trial court’s decision was ultimately based on a thorough evaluation of

all of the facts and circumstances. Moreover, the trial court’s consideration of the

sleeping arrangements at Margaret’s home, and the fact that neither Margaret nor

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Brooke knew Mr. Dufour’s sons particularly well, as factors relevant to the best

interest of the child was reasonable.

DECREE

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

of these proceedings are assessed to Appellant, Margaret Kendrick Dufour.

AFFIRMED.

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

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