Dareth Champlin Delhoste v. Robin G. Delhoste

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-983

DARETH CHAMPLIN DELHOSTE

VERSUS

ROBIN G. DELHOSTE

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 27,341
HONORABLE JOHN C. REEVES, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

AFFIRMED.

Brandy McClure
Attorney at Law
Post Office Box 665
Jonesville, Louisiana 71343
(318) 339-7337
Counsel for Plaintiff/Appellee:
Dareth Champlin Delhoste (mother)

James R. Boyd
Attorney at Law
Post Office Drawer 1464
Ferriday, Louisiana 71334
(318) 757-3000
Counsel for Defendant/Appellant:
Robin G. Delhoste (father)

KEATY, Judge.

Defendant/Appellant, Robin G. Delhoste, appeals the trial court’s judgment

denying his Rule for Contempt, Change of Custody, and Change in Visitation. For

the following reasons, the trial court’s judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Robin G. Delhoste (hereinafter “the father”) married Plaintiff/Appellee,

Dareth Champlin Delhoste (hereinafter “the mother”), in 1999. Four children were

born of the marriage: Chloe Amanda Delhoste, born June 12, 2000; Peyton

Edward Delhoste, born April 2, 2004; Sawyer Champlin Delhoste, born April 2,

2004; and Mollie Pearl Delhoste, born April 27, 2007. On April 21, 2014, the

couple divorced. A Stipulated Judgment entered into between the parties, rendered

on January 6, 2014, and signed by the trial court on January 21, 2014, granted the

mother sole custody of the children. The father was granted visitation with the

three younger children “every other Saturday and Sunday, during the day.” He

was granted visitation with the oldest child, Chloe, “based on the recommendation

of the minor child’s counselor.”

There have been multiple filings in this matter. At issue herein is the

father’s Rule for Contempt, Change of Custody, and Change in Visitation, which

he filed on October 30, 2015. Therein, he asked for visitation every other weekend,

from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. He asked to “be allowed to

visit with the children one (1) weeknight from after school until 8:00pm [sic] on

the weeks where he does not exercise his weekend visitation.” He sought custody

of Chloe, with weekend visitation in favor of the mother. The father asked the trial

court to hold the mother in contempt of court for violating various court orders and

stipulations.

The rule was heard on January 7, 2016. After taking testimony, the trial

court took the matter under advisement and gave the parties time to file rebuttal

briefs. The trial court instructed the mother to provide all medical records

pertaining to Chloe’s mental health, including those from the Office of Community

Services (OCS) and Darla Gilbert, Chloe’s mental health counselor. On April 5,

2016, the trial court rendered and signed a judgment denying all provisions of the

father’s rule. It ordered the provisions of the Stipulated Judgment remain in full

force and effect. The father appealed.

On appeal, the father asserts the following assignments of error:

1. The trial court clearly erred in not finding a change of material
circumstance necessary to change custody relating to the minor
child, Chloe Delhoste.

2. The trial court clearly erred by [not] finding that a change of
custody and increase in visitation was in the best interest of the
minor children.

3. The trial court clearly erred by not finding Defendant-in
Rule/Appellee, Dareth Champlin Delhoste, in contempt of court.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the

absence of manifest error or unless it is clearly wrong. Stobart v. State through

Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). In child custody disputes,

“‘[t]he trial judge is in a better position to evaluate the best interest of a child from

his observance of the parties and the witnesses and his decision will not be

disturbed on review absent a clear showing of abuse.’” Deason v. Deason, 99-

1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (quoting State in the

Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir. 1988)). The primary

consideration and prevailing inquiry is whether the custody arrangement is in the

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best interest of the child. Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708

So.2d 731.

DISCUSSION

I. Material Change of Circumstances

In his first assignment of error, the father contends the trial court erred in not

finding a change of material circumstance necessary to change custody regarding

Chloe. In his second assignment of error, the father alleges the trial court erred by

not finding a change of custody and increase in visitation was in the children’s best

interest. Given the overlapping assignments, we will discuss the trial court’s

factual findings supporting its conclusion that there was no material change of

circumstances which would warrant modification of the custody arrangement as it

relates to all four children.

The custody arrangement at issue resulted from a Stipulated Judgment. In

order to modify custody, the father must prove, “‘(1) that there has been a material

change of circumstances since the original custody decree was entered, and (2) that

the proposed modification is in the best interest of the child.’” Tracie F. v.

Francisco D., 15-1812, p. 10 (La. 3/15/16), 188 So.3d 231, 239-40 (quoting Evans,

708 So.2d at 738). In Prather v. McLaughlin, 16-604, p. 5 (La.App. 3 Cir.

11/2/16), 207 So.3d 581, 585, this court noted:

Some courts have held that for a material change of
circumstances to be “sufficient to alter the custody plan . . . the
material change of circumstances ‘must be of a substantial and
continuing nature to make the terms of the initial decree
unreasonable.’” Tarver v. Tarver, 15-219 (La.App. 3 Cir. 10/7/15)
(unpublished opinion) (citing LINDA D. ELROD, CHILD
CUSTODY PRACTICE AND PROCEDURE § 17:4 (database
updated 2015)).

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In his rule for modification, the father argued a material change in

circumstances occurred because the parties cannot agree as to the time in which he

can exercise visitation and that discussions regarding visitation have become

“contemptuous.” The father noted Chloe was admitted to an inpatient mental

health facility by her mother on June 5, 2015, and “that he was not informed of this

hospitalization or any current health problems until his daughter was already

admitted into the facility.” The father noted other situations wherein the mother

allegedly failed to contact him regarding “important medical conditions involving

the children.” He noted the mother “exchanges information with him by having

one of the minor children contact him about important dates and events.” He

stated the mother “has punished the minor children when they have informed him

of events going on in their lives.” However, when asked at the hearing to state the

material circumstances which had occurred in order to warrant modification, the

father responded: “I made a mistake.” He explained: “I’m not the same person I

was then. I’m not grieving over my marriage and everything, loosing [sic] -- I’ve

moved on with my life and I want my kids to be part of my life.”

Nevertheless, with respect to visitation, the Stipulated Judgment grants the

father “every other Saturday and Sunday, during the day.” At the hearing, the

father argued visitation was interrupted during an LSU football game which

occurred on a Saturday wherein Chloe was given the opportunity to cheer. He said

the problem arose following the game when the mother allegedly did not allow

Chloe to ride with him back home to Jonesville because it was “unhealthy.” On

cross-examination, however, the father admitted that he and the other children

went to the football game that day and he was able to see all of his children. In

that regard, the mother testified that the father had “exercised his visitation earlier;

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it ended at 6 that afternoon.” The father testified another incident occurred where

he allowed Chloe to attend a movie with her mother during his weekend. On

cross-examination, however, he admitted that the mother subsequently and during

her scheduled time with the children allowed him to “meet Chloe at the movie

theater and sit in the movie with her.”

The mother further testified that the father’s weekend visitation normally

occurred on Saturdays, from 8:00 a.m. to 6:00 p.m., and on Sundays, from after

church to 5:30 p.m. The mother stated that the arrangement was working out fine

and that she often gave the father extra time with the children by revealing: “He

has called and asked or texted for extra time. The kids have asked if they could get

extra time[,] and then I let them set that up.” The foregoing testimony contained in

the transcript of the hearing indicates that the father exercised visitation pursuant to

the Stipulated Judgment.

With respect to Chloe’s medical issues, the father testified that he was not

informed prior to Chloe being admitted to an inpatient mental health facility on

June 5, 2015. According to his testimony, the mother called him after Chloe was

admitted and explained that “it happened late the night before, that everything got

worked out and that they brought her down there that morning[]” to be committed.

At the hearing, the mother testified that the hospitalization occurred because Chloe

was exchanging inappropriate pictures with an eighteen-year-old person. The

mother revealed that after discussing the texting incident with Chloe’s counselor,

Ms. Gilbert, another healthcare provider, and an investigator, they concluded

Chloe was in imminent danger. The mother’s testimony indicates she was advised

by “the professionals and doctors” not to tell anybody that Chloe was going to be

committed prior to her admittance in order to facilitate a smooth transition into the

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psychiatric hospital. The mother stated that she made an informed decision when

seeking treatment for Chloe.

Ms. Gilbert, a licensed professional counselor specializing in mental health,

marriage and family therapy, was accepted at the hearing as the mother’s expert

witness. Ms. Gilbert testified that she had been treating Chloe, who was diagnosed

as bi-polar, for approximately four years. Ms. Gilbert testified that she

recommended Chloe be hospitalized in the New Orleans inpatient mental facility

because Chloe “was a danger to herself because of her erratic and acceleratingly

dangerous behavior.” Ms. Gilbert considered Chloe a flight risk and was

concerned that she would run when addressed about her behavior.

The mother stated that she discusses issues with the father regarding the

children although she occasionally gets “so wrapped up in parenting four kids that

[she] forget[s] to let him know something.” She revealed the children “enjoy

telling him what’s going on in their life. I don’t stop that.” She indicated that

Chloe is fifteen years old, the boys are eleven years old, and Molly is eight years

old. She stated that the children communicate with their father via telephone.

With respect to the children’s health and safety in general, the father testified

that the mother and children were involved in a minor automobile accident. He

said no one sustained injuries and that he was informed of the accident from one of

his children. The father testified that he should have learned of the accident

immediately from the mother to ensure that his children were safe. In response,

the mother testified that, “[i]t’s kind of hard to let him know when I’m outside

talking to the cop writing me the ticket and Chloe’s on the phone with him. So I

can’t be the first person in that case.” When asked whether the mother keeps him

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informed regarding the children, the father responded: “She has recently in the

past month, yes. Things have been better.”

Finally, the father alleged in the rule for modification that the mother

punished the children when they informed him of events in their lives. At the

hearing, he stated: “I believe that Chloe is punished. I do not really believe the

other three are.” The father testified the mother took away Chloe’s cell phone

following an incident which occurred over the holidays when Chloe was working.

The father explained that he picked up Chloe, brought her to lunch, and returned

her to work, which encompassed approximately thirty minutes. He believes Chloe

was punished by the mother for having lunch with him by having her cellular

phone taken away, resulting in his inability to reach her for three days. On cross-

examination, however, he admitted the foregoing testimony was based on his

conversations with Chloe and not on personal experience. Notably, he stated:

“I’m not [at their house] so . . . I do not have personal experience.”

On the other hand, the mother testified that Chloe was not punished for

having lunch with the father. The mother stated that she previously told Chloe not

to leave work as she “was still responsible for” her. The mother indicated she took

Chloe’s phone away for breaking that rule.

Based on the above testimony and evidence, we find that the father’s alleged

material change of circumstances is not substantial and continuing in nature to

make the terms of the Stipulated Judgment unreasonable. Accordingly, the trial

court did not abuse its discretion in this regard.

II. Best Interest of the Child

In his second assignment of error, the father contends the trial court erred by

not finding that an increase in visitation was in the children’s best interest. To

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determine whether a modification of visitation was in the children’s best interests,

the trial court considered the following relevant factors listed in La.Civ.Code art.

134, including “[t]he love, affection, and other emotional ties between each party

and the child[,]” La.Civ.Code art. 134(1); “[t]he 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[,]” La.Civ.Code art. 134(2); “[t]he length of time

the child has lived in a stable, adequate environment, and the desirability of

maintaining continuity of that environment[,]” La.Civ.Code art. 134(4); “[t]he

permanence, as a family unit, of the existing or proposed custodial home or

homes[,]” La.Civ.Code art. 134(5); “[t]he moral fitness of each party, insofar as it

affects the welfare of the child[,]” La.Civ.Code art. 134(6); and “[t]he mental and

physical health of each party[,]” La.Civ.Code art. 134(7).

In that regard, the mother testified that she maintains “a healthy motherly

relationship with the children.” She revealed that she gives the children love,

affection, and spiritual growth, noting they attend church with her every Sunday.

She indicated the children have lived with her in her current home since Chloe was

approximately two years old. She testified that the children regularly attend school

where she transports them every day. The mother stated that she is mentally and

physically able to care for the children. She noted that she has also been the

children’s primary caretaker since their birth.

The mother agreed that she is willing to facilitate, encourage, and foster the

relationship between the children and their father. She testified that the father,

however, fails to discuss issues with her concerning Chloe or the other children. In

that regard, the father testified that communication between the parents is

important, although he does not communicate with the mother. He contradicted

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himself by also testifying that he has communicated with the mother. The father

indicated the mother “does not want to communicate with” him. We note there is

no obligation on a sole custodian to confer with the other parent about anything.

Robert C. Lowe, 1 LA. PRAC. DIVORCE § 7:62. Regardless, the trial court indicated

its concern regarding the lack of communication between the parents with respect

to the children. We find that the transcript supports the trial court’s conclusion.

The third factor addresses “[t]he capacity and disposition of each party to

provide the child with food, clothing, medical care, and other material needs.”

La.Civ.Code art. 134(3). The twelfth factor addresses “[t]he responsibility for the

care and rearing of the child previously exercised by each party.” La.Civ.Code art.

134(12). With respect to this issue, the transcript shows the father’s failure to

financially care for the children given his acknowledgement of a September 30,

2015 judgment ordering him to pay the mother $22,478.00, which included money

owed for past-due child support. The mother’s testimony also shows that she

provides food, clothing, medical care, and other material needs of the children,

including Chloe. At the hearing, the father was unable to provide the names of

Chloe’s medications despite his testimony that it is important to know the identity

of his children’s medication. When asked whether he knew what Chloe was

diagnosed with, he responded, “No.”

In that regard, Ms. Gilbert agreed it was important for the parent retaining

physical custody of Chloe to be aware of her diagnosis and have constant

communication with her physicians. Ms. Gilbert noted the father contacted her

only two times over a four-year period regarding Chloe’s mental health.

Ms. Gilbert expressed concern if Chloe would live with her father because he treats

Chloe like a spouse or peer and is “emotionally dependent” on her. Ms. Gilbert

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said such a relationship is unhealthy because a father “should not rely on his

daughter. Daughters should be able to rely on her father, be protected by her father,

not the other way around.” Ms. Gilbert noted that Chloe “has a history of very

serious dangerous behavior and some of it is sexual in nature. She has to be very,

very closely monitored because there have been episodes that are quite severe.”

Ms. Gilbert said Chloe’s mental disorder requires strict boundaries, which the

mother maintained. On the other hand, Ms. Gilbert was unsure whether the father

implemented strict boundaries and opined that Chloe “will not maintain stability”

if her father is given custody. Ms. Gilbert testified that maintaining custody in

favor of the mother is “critical for Chloe’s welfare[.]”

The ninth factor notes “[t]he reasonable preference of the child, if the court

deems the child to be of sufficient age to express a preference.” La.Civ.Code art.

134(9). The father testified that Chloe’s preference was to live with him. On the

other hand, the mother testified that Chloe’s preference was to remain living at

home, in the mother’s custody, as long as things would “be different.” The mother

explained Chloe wanted things to change at home because “she hates to do her

laundry and she hates to do certain chores but as a 15 year old she needs those.”

There is nothing in the transcript indicating the trial court specifically addressed

the relevancy of this factor. Although a child’s age and preference is taken into

consideration, we find this factor is not relevant given Chloe’s immaturity based

upon Ms. Gilbert’s testimony regarding Chloe’s erratic behavior.

Based on the above, the trial court determined that a modification of

visitation was not in the children’s best interest. Considering the record as a whole,

we cannot say that the trial court abused its discretion in this regard.

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III. Rule for Contempt

In his third assignment of error, the father contends the trial court erred by

not holding the mother in contempt for failing to abide by the Stipulated Judgment

which requires the parents to inform each other regarding the children’s health and

education. The father alleges the mother violated the judgment by failing to

inform him of an automobile accident and by placing Chloe in an inpatient

psychiatric institution without his knowledge. We have previously addressed these

alleged violations. The father also asserts the mother violated the visitation

provision in the Stipulated Judgment by not allowing the children to spend all day

Sunday with him because she does not trust him to take them to church.

Constructive contempt is defined as the “[w]ilful disobedience of any lawful

judgment, order, mandate, writ, or process of the court[.]” La.Code Civ.P. art.

224(2). In this case, the Stipulated Judgment executed by the trial court on

January 21, 2014, failed to specify an exact time for weekend visitation; it only

specified visitation “every other Saturday and Sunday, during the day.” The

testimony indicates the father exercised weekend visitation in accordance with that

judgment. Approximately two years later at the January 7, 2016 hearing at issue,

the parties voluntarily agreed to an exact time regarding weekend visitation. The

mother’s actions which the father claims constituted contempt, however, occurred

prior to the January 7, 2016 hearing, when a time period was not specified. Thus,

the mother cannot be in contempt.

Accordingly, the trial court did not manifestly err in this regard, and the

father’s assignment of error is without merit.

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DECREE

The trial court’s judgment denying the Rule for Contempt, Change of

Custody, and Change in Visitation filed by Defendant/Appellant, Robin G.

Delhoste, is affirmed. All costs of this appeal are assessed to Defendant/Appellant,

Robin G. Delhoste.

AFFIRMED.

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