Brock Taylor Gary v. Ali Renee Leblanc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-1054
BROCK TAYLOR GARY
VERSUS
ALI RENEE LEBLANC
EIR IGR AOR Ak
APPEAL FROM THE

TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 16-C-2314-A
HONORABLE JAMES P. DOHERTY JR., DISTRICT JUDGE

BORE 4k

VAN H. KYZAR
JUDGE

3 2K oe oe oR ok ok ok

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Van H. Kyzar,
Judges.

AFFIRMED AS AMENDED

Brenda Sibille Piccione

Piccione & Piccione

P. O. Box 3352

Lafayette, LA 70503

(337) 233-9030

COUNSEL FOR PLAINTIFF/APPELLANT:
Brock Taylor Gary

Gay L. Babin

Piccione & Piccione

P. O. Box 3352

Lafayette, LA 70503

(337) 233-9506

COUNSEL FOR PLAINTIFF/APPELLANT:
Brock Taylor Gary

Abbey L. Williams

Attorney at Law

111 North Court St.

Opelousas, LA 70570

(337) 942-7193

COUNSEL FOR DEFENDANT/APPELLEE:
Ali Renee LeBlanc

KYZAR, Judge.

Brock Taylor Gary, the plaintiff, seeks the reversal of the trial court
judgment in favor of Ali Renee LeBlanc, mother of the parties’ minor child,
granting the parties joint custody of the child but designating her as the principal
custodial parent, ordering him to pay child support, and denying his request to
amend the child’s birth certificate changing the child’s last name to “Gary”. For
the following reasons, we affirm the judgment of the trial court as amended herein.

FACTS AND PROCEDURAL HISTORY

Brock Taylor Gary and Ali Renee LeBlanc are the unmarried parents of
Alaia Claire LeBlanc, who was born in October of 2008. Both LeBlanc and Gary
were 16 years old at the time. The parties acknowledge that the child has lived
with LeBlanc as the domiciliary parent since her birth, with Gary exercising
regular visitation every other weekend and occasional vacations and paying a
mutually agreed upon amount in child support since the child was two months of
age, though there was no formal or signed agreement.

In May of 2016, Gary became aware of an incident that occurred in March
of the same year in which Alaia, the minor child, allegedly witnessed her four-
year-old half-brother being sexually molested and choked by her maternal
grandmother’s boyfriend. LeBlanc and her three children, Alaia and two half-
brothers, primarily live with LeBlanc’s mother, as well as occasional time spent
living with a Travis Bergeron, LeBlanc’s boyfriend and father of her third child.
Alaia has resided with LeBlanc at LeBlanc’s mother’s home for the majority of her
life.

In response to the incident concerning Alaia’s half-brother and alleging

other factors, Gary petitioned the trial court to name him as domiciliary parent and

asked that the child’s last name be changed from LeBlanc to Gary. LeBlanc
answered the suit and filed a reconventional demand for child support. When
rendering its judgment, the trial court specifically took into consideration the
requirements of La.Civ.Code art. 134, which provides a non-exclusive list of
twelve factors to determine the child’s best interest, as well as the Louisiana child
support worksheets. The trial court awarded the parties joint custody of the child
and designated LeBlanc as the domiciliary parent, setting scheduled custodial
visitation in favor of Gary. The trial court denied Gary’s name change request, and
ordered Gary to pay child support in the sum of $941.49 per month. This appeal
followed.
ASSIGNMENT OF ERRORS

On appeal, Gary asserts three assignments of error by the trial court. They
are as follows:

1. The trial court erred in awarding domiciliary status to a mother

with unstable relationships, inappropriate housing arrangements,

and questionable regard for her child’s health and well-being.

2. The trial court erred as a matter of law in its ruling on a request for
the child’s name to be changed.

3. The trial court erred in failing to consider the child’s time with Mr.
Gary as a basis for adjustment to the amount of child support to be
paid during that period of time and in using bonuses in the
calculation of child support payments.

OPINION

Custody

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

court:

The trial court is in a better position to evaluate the best interest of the
child from its observances of the parties and witnesses; thus, 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. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir.

5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96),

681 So.2d 365.

Gremillion v. Gremillion, 07-492 (La.App. 3 Cir. 10/3/07) 966 So.2d 1228, 1231-
32. The procedure to be followed by appellate courts in determining whether an
abuse of discretion has occurred has been further laid out:

In order to reverse a fact finder’s determination of fact, an appellate

court must review the record in its entirety and (1) find that a

reasonable factual basis does not exist for the finding, and (2) further

determine that the record clearly establishes that the fact finder is
clearly wrong or manifestly erroneous.
Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993).

Gary asserts that the trial court erred in awarding domiciliary status to
LeBlanc, alleging unstable relationships, inappropriate housing arrangements, and
questionable regard for the health and well-being of the child. Gary contends that
the facts require him to be named as the domiciliary parent of Alaia as LeBlanc is
unable to fulfill Alaia’s best interests. “The primary consideration in our analysis
of a child custody determination is always the best interest of the child. La.Civ.
Code art. 131.” Moss v. Goodger, 12-783, p. 5 (La.App. 3 Cir. 12/12/12), 104
So.3d 807, 811. “The best interest of the child standard is a fact-finding intensive
inquiry that requires the weighing and balancing of factors favoring or opposing
custody in the competing parties on the basis of the evidence presented.” C.MU. v.
L.M.C., 14-1119, p. 18 (La. 10/15/14), 156 So.3d 16, 33. Louisiana Civil Code
article 134 provides a non-exclusive list of criteria to be considered by the trial

court in determining the best interest of a child, stating:

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.

In ruling, the trial court addressed each of the twelve factors enumerated and
its considerations given to each, though it is not required to do so. See Hughes v.
Talton, 181 So.3d 10 (La.App. 5 Cir. 10/15/14). It pointed out that both parents
have a close and loving relationship with the child, its belief that both parents
would be suitable domiciliary custodians, and applauded both parents on their

commitment and cooperation together in the raising of Alaia up to this point.

The trial court noted that both Gary and LeBlanc compare favorably and
deemed both parents to be equal on many of the factors provided for by
La.Civ.Code art. 134, though not all. The trial court ultimately determined that the
child’s best interest would be served by granting joint custody and maintaining
LeBlanc as the domiciliary parent. In doing so, the court specified which factors it
relied upon most in determining custody, namely the family relationship and the
prior rearing of the child. The trial court pointed out that, despite Gary’s
assertions, changing the domiciliary status of Alaia would force her to leave her
current school and classmates, where she has been attending classes since she
began school. The trial court further expressed concern that such a change would
render apart Alaia and her two siblings, with whom she has spent her life, with no
evidence as to what effect a separation from her siblings may have on the child.
The court did, then, touch upon the incident concerning Alaia’s half-brother that
prompted this suit, reiterating that as unfortunate as the occurrence was and
without condoning LeBlanc’s handling of the situation, the incident did not
directly occur or happen to Alaia, but to another child with Alaia as a regrettable
witness. In addressing this incident, the trial court noted the testimony of Ms.

Elizabeth Baumer, a professional counselor and social worker, stating:

..-what she told [the court] was obviously Alaia was taught between
right and wrong, the way she reacted to the situation that occurred,
that after being primarily raised by [LeBlanc], Alaia was a well
adjusted child. She did very well interacting with others and she was
on task mentally and socially.

In his brief, Gary argues that the facts require a modification of the custodial
arrangement of Alaia under the best interest of the child standard. In addition to

his other arguments, Gary asserts that Alaia’s prolonged dental issues show

LeBlanc’s negligence and lack of regard concerning Alaia’s health. The trial court
addressed this issue as well, noting that the required dental surgery had already
been previously scheduled by LeBlanc, and though it had been cancelled, the

cancellation was not due to any fault of LeBlanc’s.

Gary asserts that pursuant to the criteria of La.Civ.Code art. 134, the best
interest of the child would be served by naming him as the domiciliary parent.
Gary goes on to address each one of the twelve enumerated factors, pointing out
those he believes weigh in his favor and noting the points on which he disagrees
with the determinations of the trial court. However, “[a] trial court’s determination

99

of a child’s best interest is usually based heavily on factual findings.” Henry v.
Henry, 08-689 (La.App. 1 Cir. 9/23/08), 995 So.2d 643. “It is well settled that an
appellate court cannot set aside a trial court’s factual findings in the absence of
manifest error or unless the findings are clearly wrong.” Rosell v ESCO, 549 So.2d
840, 844 (La.1989). After considering the evidence and hearing the testimony and
arguments of both parties, the trial court found that both parents were fit, but that it
would be in Alaia’s best interest to continue living primarily with her mother and
brothers. Based upon our review of the record, and given the great deference
afforded the decision of the trial court in child custody matters, we find no error in
the trial court’s award of domiciliary status to LeBlanc. See Gill v. Bennett, 11-
886 (La.App. 3 Cir. 12/7/11) 82 So.3d 383. Pursuant to the foregoing, the

judgment assigning joint custody, designating LeBlanc as domiciliary parent and

setting custodial visitation rights in favor of Gary, is affirmed.

Name Change of Minor Child

Gary next asserts that the trial court erred as a matter of law in ruling on his
request to change the surname of the parties’ minor child to “Gary”. The issue
regarding the petition to change the name of the minor child raises a question of
law. Accordingly, this court reviews that question de novo. Domingue v. Bodin,
08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. “Appellate review of questions of
law is simply to determine whether the trial court was legally correct or incorrect.”
Cangelosi v. Allstate Ins. Co., 96-0159, p. 3 (La.App. 1 Cir. 9/27/96), 680 So.2d
1358, 1360.

In the instant case, Gary combined his petition against LeBlanc seeking
custody and domiciliary parent status of their minor child with a request that the
child’s last name be changed to “Gary”. In ruling on the name change request, the
trial court cited La.R.S. 40:34(B)(1)(a)(v), as it read at the time, as authority to not
only initially affix a child’s surname but also to “change” the name on a child’s
birth certificate by the agreement of both parties, stating as follows:

Under the provisions of Revised Statute 40, Section
34(B)(1)(a)IV, it provides that the child's name can be changed with

the concurrence of the parents. In this particular case, the mother,

although initially under direct examination by Ms. Babin said she

would do that, but the Court, judging her demeanor on the stand,
realized that that may have been coerced. She later changed it. In
connection with this matter, the Court also is concerned about just
hitting a child with the status, “Hey, I’m going to change your name,”

but if the parents decide in the future after consulting with each other

and at least having some conversation with the child about it, the

Court would not be adverse to allowing a name change. At this time

the Court denies it.

In denying the relief prayed for, the trial court erred in applying the

provisions of title 40 to a request for a name change for a minor. The only proper

legal procedure to change the name of a child is found within the provisions of

La.R.S. 13:4751 et seq. These provisions lay out a specific procedure to be
followed, namely that a contradictory hearing with the district attorney is required.
See La.R.S. 13:4752. Gary asserts that because the required procedure was not
followed, the trial court improperly ruled on the name change request as the court
had no authority to render judgment on an issue not properly before it. In Bell v.
Durand, 06-708 (La.App. 3 Cir. 11/2/06), 942 So.2d 727, this court noted: .
Louisiana Revised Statutes 40:34(B)(1)(a)(v) provides that

“[aJny change in the surname of a child ... shall be by court order as

provided for in [La.] R.S. 13:4751 through [La.R.S. 13:]4755 or as

otherwise provided in this Chapter or by rules promulgated
thereunder.” According to La.R.S. 13:4752, the proceeding to change

a name shall be conducted contradictorily with the State. See also,

Evans v. Coody, 99-1228 (La.App. 3 Cir. 2/2/00), 758 So.2d 256, writ

denied, sub nom. Evans v. Lungrin, 00-683 (La.3/15/00), 755 So.2d

890.

In Bell, the father of the minor child combined a petition to change the
sumame of the child in an action for child custody, support, and visitation. /d.
This court found that the procedural requirements of La.R.S. 13:4751 et seq. did
apply, the procedure employed by the father had not been proper, and that the
father would be required to comply therewith in order to effectuate his desired
changes on the child’s birth certificate. Jd at 729. As in Bell, nothing in the record
in the instant matter indicates that the St. Landry District Attorney was involved.
As such, the procedure required by La.R.S. 13:4751 et seq. was not followed, and
the issue was not properly before the court and as pled, was and is subject to
peremptory exceptions of no cause of action and the failure to join an
indispensable party. La.Code Civ.P. art. 927. We note that under the provisions of
this article and as recognized by the court in Moreno v. Entergy Corporation, 10-

2268 (La. 2/18/2011) 64 So.3d 761, any peremptory exception other than one

asserting prescription can be raised by an appellate court on its own motion.

Therefore, while Gary is correct and while we agree that the trial court erred in its
interpretation and application of the law, the denial of the relief requested was
correct, albeit for the wrong reasons. Thus, we hereby raise and grant peremptory
exceptions of no cause of action and failure to join an indispensable party, the St.
Landry Parish District Attorney in this case, and dismiss Gary’s petition as to the
change of the minor child’s name. This dismissal is without prejudice, however, to
Gary’s right to file an amended petition to change the minor’s surname utilizing
the proper procedures as noted herein and as authorized by the provisions of
La.Code Civ.P. art. 934. No time limit for the action needs to be fixed as the
parents can utilize the proper procedure to change the child’s surname at any time
during the child’s minority. Accordingly, the judgment of the trial court denying
Gary’s request to change the surname of the child is affirmed as amended,
dismissing Gary’s petition to change the minor’s name, without prejudice, subject
to Gary’s right to amend the petition or file a separate petition utilizing the
provisions of La.R.S. 13:4751 et seq.

Child Support

Gary asserts that the trial court erred both in failing to consider the child’s
time spent with him as a basis for adjustment to the amount of child support to be
paid during that period of time and in using bonuses in the calculation of his
income to determine child support payments. We disagree. Trial courts have great
discretion in determining the amount of a child support award. Murphy v. Murphy,
894 So.2d 542 (La. 2/2/05). This court has clearly defined this standard of review
by noting, “[w]e review child support determinations using the manifest error
standard of review, and we will not disturb the trial court’s support order unless it

committed manifest error or an abuse of discretion in its determination.” Bergeron

v. Bergeron, 11-130 (La.App. 3 Cir. 10/5/11), 75 So.3d 537, 540, writ denied, 11-
2466 (La. 1/20/12), 78 So.3d 144; State, Dep't of Soc. Servs. v. L.T., Jr., 05-1965
(La.7/6/06), 934 So.2d 687.

Louisiana Revised Statutes 9:315.8 outlines child support calculation
guidelines and addresses the issue of allowing a credit at the trial court’s discretion
based upon the amount of time spent with the non-domiciliary parent. Specifically,
La.R.S. 9:315.8(E) states:

E. “Joint Custody” means a joint custody order that is not shared
custody as defined in R.S. 9:315.9.

(1) In cases of joint custody, the court shall consider the period of
time spent by the child with the nondomiciliary party as a basis
for adjustment to the amount of child support to be paid during
that period of time.

(2) If under a joint custody order, the person ordered to pay child
support has physical custody of the child for more than seventy-
three days, the court may order a credit to the child support
obligation. A day for the purposes of this Paragraph shall be
determined by the court; however, in no instance shall less than
four hours of physical custody of the child constitute a day.

(3) In determining the amount of credit to be given, the court shall
consider the following:

(a) The amount of time the child spends with the person to whom the
credit would be applied. The court shall include in such
consideration the continuing expenses of the domiciliary party.

(b) The increase in financial burden placed on the person to whom the

credit would be applied and the decrease in financial burden on the
person receiving child support.

(c) The best interests of the child and what is equitable between the
parties.

(4) The burden of proof is on the person seeking the credit pursuant to
this Subsection.

10

(5) Worksheet A reproduced in R.S. 9:315.20, or a substantially
similar form adopted by local court rule, shall be used to
determine child support in accordance with this Subsection.

This provision allows the trial court to grant a credit to the non-domiciliary
parent against his or her basic child support obligation if the parent exercises at
least seventy-three days of visitation a year. However, as this court has noted:

...the credit is not applied automatically even if the parent proves the

amount of time spent with the child exceeds seventy-three days.

Instead, the parent seeking the credit bears the additional burden of

proving: (1) the physical custody of the children results in an increase

in his/her financial burden and a decrease in the financial obligation of

the other parent, and (2)the [sic] best interests of the child and what is

equitable between the parties would be served by allowing the credit.

Lea v. Sanders, 04-762 (La.App. 3 Cir. 12/22/04), 890 So.2d 764, 767, writ denied,
05-183 (La. 3/24/05), 896 So.2d 1046. It is undisputed that Gary did not offer any
evidence to show an increased financial burden caused by the increased visitation
with his daughter. Gary asserts that he did not see a need to present evidence of
his child care expenses as he was optimistic that he would be named domiciliary
parent.

This is similar to the issue addressed by this court in Lea, 890 So.2d at 770,
wherein the court noted, “Other than the numerical percentage, [petitioner] has
presented no other evidence to indicate that he is bearing a greater financial
responsibility under this arrangement or that he is decreasing the financial burden
of the domiciliary parent.” The court went on to hold that the father, who in that
instance had custody of the children 43% of the time, was not entitled to the
rebuttable presumption that the financial burden of raising children was being
shared equally without submitting additional proof, as a basis for reducing his child

support obligation. /d. Further, this court has also previously found a trial court in

error for allowing a 30% deviation from the support obligation, based solely on the

11

basis of time spent, absent any other proof in the record. Guillot v. Munn, 99-2132
(La.3/24/00) 756 So.2d 290. We conclude, therefore, that the trial court was not
manifestly erroneous or clearly wrong in not reducing the amount of support for
the time spent in Gary’s custody.

Gary further contends the trial court erred in including bonuses in the
calculation of his income for child support payment purposes. It is clear from
La.R.S. 9:315(C)(3)(a) that gross income refers to income from all sources,
including bonuses. In Earl v. Earl, 43,925 (La. App. 2 Cir. 12/3/08), 998 So.2d
828, the court reversed a trial court judgment setting an amount of child support

without including bonuses, stating as follows:

Under La. R.S. 9:315(C)(3)(a), gross income includes bonuses. This

court has recognized, however, the potential problems when a large

year-end bonus, which is sometimes almost equal to the annual base

salary, is included in the calculation of the parent’s income for

purposes of setting a monthly child support amount. Patrick v.

Patrick, 34,799 (La.App.2d Cir.4/4/01), 785 So.2d 169. The trial

court, therefore, has considerable discretion in considering bonuses in

the child support calculation.

We cannot conclude that the trial court was manifestly erroneous or clearly
wrong in its decision to include Gary’s bonuses within his gross income. In this
instance, the trial court was not faced with the issue of large bonuses that were the
near equal to the normal monthly income of the employee. Further, Gary is in the
employ of his father in a family business, and there was no testimony that the
bonuses were sporadic or subject to cancellation. Accordingly, the judgment
setting the amount of child support is affirmed.

DECREE

For the foregoing reasons, we affirm that portion of the trial court judgment

assigning custody, visitation, and domiciliary status, as well as the portion of the

12

judgment setting the amount of child support to be paid. In regards to the
judgment denying Gary’s name change request, we affirm the ruling of the trial
court as amended herein. Costs of this appeal are assessed to Brock Taylor Gary.

AFFIRMED AS AMENDED

13