Jamie Killian Coody v. John Allen Coody

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-071

JAMIE KILLIAN COODY

VERSUS

JOHN ALLEN COODY

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. 2010-0168
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Candyce G. Perret, and
Jonathan W. Perry, Judges.

AFFIRMED.

Elvin C. Fontenot, Jr.
Attorney at Law
110 East Texas St.
Leesville, Louisiana 71446
(337) 239-2684
Counsel for Plaintiff/Appellant:
Jamie Killian Coody

David L. Wallace
Attorney at Law
518 N. Pine Street
DeRidder, Louisiana 70634
(337) 462-0473
Counsel for Defendant/Appellee:
John Allen Coody

Bobby Holmes
Attorney at Law
1800 Ryan St., Ste. 107
Lake Charles, Louisiana 70601
(337) 221-3028
Counsel for the Minor Children:
Remington Coody and Brycen Coody

PERRY, Judge.
In this child custody dispute, the mother appeals the trial court’s judgment

which rejected her claim for sole custody and maintained her as the domiciliary

parent but utilized the implemental order to designate the father with the authority

over medical treatment and the children’s extracurricular activities. We affirm.

FACTS AND PROCEDURAL HISTORY

Jamie Killian Coody (“Jamie”) and John Allen Coody (“John”)1 were married

on February 3, 2003 and were granted a divorce in 2010. At the time of their divorce,

Jamie and John had two minor sons, Remington and Brycen,2 born on October 12,

2004, and July 11, 2006, respectively. Ever since their divorce, Jamie and John have

shared the joint custody of their two sons, and Jamie was designated as the

domiciliary parent with the authority to make all decisions regarding their sons.3

On September 3, 2014, after considering pleadings and evidence, the trial

court, among other incidental rulings, maintained joint custody and Jamie’s

designation as the domiciliary parent, but detailed the parents’ allocation of the time

periods during which each parent shall have physical custody of the children,

ordered the parents to mediate every twenty-eight days, and determined an amount

of child support and any unpaid medical bills that John may owe.

1
By virtue of Uniform Rules–Courts of Appeal, Rules 5-2 and 5-1, there is no requirement
that we preserve the identity of the parties. Accordingly, we have referred to the parties’ given
names.
2
The youngest son’s name is spelled differently throughout the appellate record. For
consistency, we have chosen to refer to him as Brycen.
3
The record does not reflect whether the initial custody and visitation award was by
agreement of the parties or a considered decree. However, the record does show the subsequent
two judgments, that of September 3, 2014, and February 8, 2017, were considered decrees.

Thereafter, on February 8, 2017, again after a trial on the merits, the trial court

found Jamie and John in contempt of court, 4 continued the requirement that the

parents meet with Mark Ifland (“Mr. Ifland”) every twenty-eight days, ordered the

two children to undergo individual and family counseling as needed, decreed that

the counselor report to the court after six months regarding recommendations as to

any modifications or changes to periods of physical custody, continued joint legal

custody and Jamie’s designation as the domiciliary parent, and tweaked the parents’

periods of physical custody yet again.

On February 23, 2018, John filed a rule to change the designation of Jamie as

the domiciliary parent or to return the periods of physical custody to that decreed on

September 3, 2014. He also requested that Jamie be found in contempt of court for

failing to allow him physical custody of the children on multiple occasions.

On March 1, 2018, John filed a motion for the issuance of a civil warrant for

the return of his sons for purposes of court-ordered visitation. Forming the basis of

this motion, John alleged that Jamie had recently denied him visitation with his sons

on February 27, 2018, that this course of conduct by Jamie had occurred on at least

three other occasions, and that he feared it would occur prospectively. Shortly

thereafter, on March 19, 2018, Jamie filed a motion seeking sole custody of the two

children.

The trial court conducted hearings on the cross-custody motions over three

days, November 28, 2018, January 11, 2019, and August 20, 2019. After providing

extensive oral reasons for judgment in which it found neither party proved a material

change in circumstances to alter either joint custody or Jamie’s designation as the

4
The record is unclear as to the basis of the contempt. However, the judgment of February
8, 2017, does show that the trial court gave the parties suspended jail sentences and provided that
John could purge himself of contempt by providing insurance cards to Jamie within ten days, and
Jamie could purge herself of contempt by cancelling the immediate income assignment order
within ten days.
2

domiciliary parent, the trial court maintained its earlier judgments, awarding joint

legal custody of the two children to Jamie and John, designated Jamie as the

domiciliary parent, found Jamie in contempt of court, and ordered counseling for the

two children and the parents with Bruce Plauché (“Mr. Plauché”). Nonetheless, the

trial court modified the implementation order, designating John with the authority

and responsibility for making medical decisions regarding the children and for

making decisions about the children’s sports, band, and extracurricular activities.

Jamie appealed, contending that the trial court erred: (1) in modifying the joint

custody implementation order to designate John with the authority to make the

medical decisions as well as decisions about the children’s sports, band, and

extracurricular activities along with the responsibility for making certain the children

attend all activities in which they participate; (2) in finding a material change of

circumstance which affected the welfare of the children; (3) in failing to state for the

record any findings that established it was in the best interest of these minor children

to award domiciliary status to John over certain affairs of the children; and (4) in

denying Jamie’s request to modify the joint custody to sole custody to allow the

children to participate in normal, regular school activities as well as extracurricular

activities. 5

STANDARD OF REVIEW

The trial court’s factual conclusions are given substantial deference by

appellate courts in child custody matters. Steinebach v. Steinebach, 07-38 (La.App.

3 Cir. 5/2/07), 957 So.2d 291. Unless there is a legal error, “[t]he determinations

5
Although in her brief to this court Jamie makes passing reference to that part of the trial
court’s judgment which found her in contempt of court for withholding her sons on five occasions
(1/12/18, 2/16/18, 3/2/18, 9/28/18, and 10/12/18) from court-ordered physical custody with their
father, she neither assigned this as an error nor argued in brief that such a decision was erroneous.
She also makes no argument about the modified physical custody schedule the trial court imposed
and the court-mandated counseling. Thus, these three aspects of the trial court judgment are not
before us.
3

made by the trial judge as to custody . . . will not be set aside unless it clearly appears

[from the record] that there has been an abuse of discretion[.]” Nugent v. Nugent,

232 So.2d 521, 523 (La.App. 3 Cir. 1970); see also Mulkey v. Mulkey, 12-2709 (La.

5/7/13), 118 So.3d 357. “The basis for this principle of review is grounded not only

upon the better capacity of the trial court to evaluate live witnesses, but also upon

the proper allocation of trial and appellate functions between the respective courts.”

McCorvey v. McCorvey, 05-174, p. 4 (La.App. 3 Cir. 11/2/05), 916 So.2d 357, 362,

writ denied, 05-2577 (La. 5/5/06), 927 So.2d 300.

Absent legal error, before a court’s factual findings and conclusions can be

reversed, appellate courts must “review the record in its entirety and (1) find that a

reasonable 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.” Moss v. Goodger, 12-783, p. 4 (La.App. 3 Cir. 12/12/12), 104 So.3d

807, 810. If the trial court’s findings of fact are reasonable, appellate courts should

not reverse them. Id. However, appellate courts are also prohibited from simply

rubberstamping a trial court’s findings of fact. Id. Instead, appellate courts are

constitutionally mandated to review all the facts contained in the record and

determine whether the trial court’s findings are reasonable considering the entire

record. Id.

Additionally, when a trial court applies incorrect legal principles and these

errors materially affect the outcome of a case and deprive a party of substantial

rights, legal error occurs. Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d

731. “[W]here one or more trial court legal errors interdict the fact-finding process,

the manifest error standard is no longer applicable, and, if the record is otherwise

complete, the appellate court should make its own independent de novo review of

the record and determine a preponderance of the evidence.” Id. at 735.
4

LAW AND DISCUSSION

Although Jamie asserts four assignments of error, her arguments center on the

trial court’s decision to grant John the decision-making authority over their

children’s medical care and their sports, band, and extracurricular activities. That

argument necessitates that we evaluate the three issues raised in Jamie’s assignments

of error: (1) whether the trial court erred in finding a change in circumstances that

materially affected the welfare of the children since the last court order; (2) whether

the trial court considered the best interest criteria that permeates child custody

matters; and (3) whether the trial court’s failure to award Jamie sole custody was

erroneous.

The paramount consideration in any determination of child custody is the best

interest of the child. La.Civ.Code art. 131. The best interest of the child is the sole

criterion to be met in making a custody award, as the trial court “sits as a sort of

fiduciary on behalf of the child, and must pursue actively that course of conduct

which will be of the greatest benefit to the child.” C.M.J. v. L.M.C., 14–1119, p. 17

(La. 10/15/14), 156 So.3d 16, 28 (quoting Turner v. Turner, 455 So.2d 1374, 1378

(La.1984)). It is the child’s emotional, physical, material, and social well-being and

health that are the court’s very purpose in child custody cases; the court must protect

the child from the real possibility that the parents are engaged in a bitter, vengeful,

and highly emotional conflict. C.M.J., 156 So.3d 16. The legislature has mandated

that the court look only to the child’s interests so that the court can fulfill its

obligations to the child. Id.

However, in actions to change custody decisions rendered in considered

decrees, an additional jurisprudential requirement is imposed. Evans, 708 So.2d

731. When a trial court has made a considered decree of permanent custody, the

party seeking a change bears the heavy burden of proving that the continuation of
5

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.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

“Although the trial court retains a continuing power to modify a child custody order,

there must be a showing of a change in circumstances materially affecting the

welfare of the child before the court may consider making a significant change in

the custody order.” Id. at 1194.

Louisiana Civil Code Article 134 provides a non-exclusive list of factors

which the trial court shall consider with all other relevant factors for the

determination of the best interests of the child, and the determination as to the weight

given each factor is left to the discretion of the trial court. Hodges v. Hodges, 15-

585 (La. 11/23/15), 181 So.3d 700. “The illustrative nature of the listing of factors

contained in Article 134 gives the court freedom to consider additional factors; and,

in general, the court should consider the totality of the facts and circumstances of

the individual case.” Id. at 703. The consideration of all relevant factors under

Article 134 should be followed in actions to change custody, as well as in those to

fix custody initially. La.Civ.Code art. 134, 1993 Revision Comment (d).

However, the trial court is not bound to make a mechanical evaluation of all

of the statutory factors listed in La.Civ.Code art. 134 but should decide each case on

its own facts in light of those factors. Breaux v. Breaux, 96-214 (La.App. 3 Cir.

7/17/96), 677 So.2d 1106. 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. Moreau v. Moreau, 15-

564 (La.App. 4 Cir. 11/18/15), 179 So.3d 819. Moreover, the factors are not

6

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. C.M.J., 156 So.3d 16.

From the outset, we note that the trial court’s oral reasons for judgment show

that in addition to John’s request to designate him as the domiciliary parent, an issue

not before us, it considered two additional issues: (1) Jamie’s request that she be

granted sole legal custody; and (2) whether it should modify the implementation

order to have John and Jamie share decision-making authority. We will individually

address these two issues.

Sole Custody

Jamie first argues that the trial court erred when it failed to award her sole

custody of her two sons. We disagree.

Louisiana Civil Code Article 132 provides that “in the absence of agreement

[among the parents], or if the agreement is not in the best interest of the child, the

court shall award custody to the parents jointly[.]” However, as further provided in

La.Civ.Code art. 132, “if custody in one parent is shown by clear and convincing

evidence to serve the best interest of the child, the court shall award custody to that

parent.” Thus, under La.Civ.Code art. 132, Jamie’s burden was to prove by clear

and convincing evidence that sole custody, as opposed to joint custody originally

ordered, was in the best interest of her two sons. To prove a matter by clear and

convincing evidence, a party must demonstrate that the existence of a disputed fact,

in this instance, that sole custody was preferable, is highly probable or much more

probable than its nonexistence. Coleman v. Coleman, 47,080 (La.App. 2 Cir.

2/29/12), 87 So.3d 246.

In her motion to modify custody, Jamie contended that John constantly

badgered their sons concerning their previous court testimony, that John’s new wife

7

exhibited extreme anger toward the two minors, that the two minors felt bullied and

physically threatened, and that they wished to change the current visitation schedule.

The trial court heard testimony from Jamie and John about these issues.

Jamie’s testimony about these allegations was immediately met with John’s denials.

As to the boys’ wishes to choose when they are with their individual parents,

testimony primarily given by the eldest son, Remington, the parents presented

differing testimonies–Jamie saying that it was news to her that her sons had told John

and his attorney that they wanted to spend more time with him. With regards to the

latter item, Mr. Plauche,6 the licensed professional counselor who has met numerous

times with the family members, meeting more often with Jamie and her sons than

with John, stated:

I think the biggest thing that we probably see is how we are getting the
double answers from everything. And it is the possibility that [the two
boys] are not lying. It is the possibility that when they are at John’s
house they really are . . . this kid, you know, they are the kid that fits in
that house, and so they, you know, they are giving him these answers
and while they are there that’s their answers. And whenever they are
at Jamie’s house it’s, you know, it’s how they feel. And whether they
are lying and whether they really are that stark opposite, I think that’s
where we are seeing the issue.

After conducting hearings over three dates, the trial court made several

pertinent observations. Initially, it observed that the two boys are “very remarkable

young men who have . . . from all indications done very well in school scholastically,

extra-curricular [sic].” It further commented that the two boys are polite and have

not posed any disciplinary problems at school or in public. The trial court also

6
We note that in an earlier hearing, the trial court ordered counseling and directed the
parties to Mark Ifland. Later, Mr. Iflin discontinued his practice as a counselor and referred Jamie
to Mr. Plauche. Because Mr. Plauche was not named by the trial court, John chose not to always
participate in counseling with Mr. Plauche because he perceived him as a counselor chosen by
Jamie and did not feel comfortable with him for that reason. At the end of this most recent hearing,
the trial court would remedy that problem of perception when it designated Mr. Plauche as the
counselor to the parties and their children.
8

indicated that it could tell from the testimony of the two parents that they both loved

their children.

Ultimately, the trial court concluded that it had seen nothing that met the

Bergeron standard to change from joint custody to sole custody. Then it said that

this case had been before the court over the course of almost ten years. In summary,

the trial court stated, “It’s more of the same disagreement and not getting along and

miscommunication.”

After thoroughly combing the record, we agree with the trial court’s

appreciation of the testimony, particularly in light of the heightened Bergeron

standard and the requirement that Jamie prove by clear and convincing evidence that

sole custody, as opposed to the joint custody originally ordered, was in the best

interest of her two sons.

For reasons fully outlined above, we find Jamie failed to show by clear and

convincing evidence that sole custody was in her sons’ best interest.

Legal Authority

Jamie next argues that the trial court’s splitting of legal authority

impermissibly makes Jamie and John co-domiciliary parents in violation of the

disavowal of such designation in Hodges. We disagree, finding Jamie’s argument

ignores the provisions of La.R.S. 9:335 and the explanation Hodges provides.

After a trial court determines to award joint custody to the parents, La.R.S.

9:335 governs the designation of a domiciliary parent as well as a court’s

determination of the details of the custody arrangement. The court in Hodges, 181

So.3d at 704-05, elaborates as follows:

The meaning of “domiciliary parent” derives from La. R.S. 9:335. See
La. R.S. 24:177(B)(1) (“The text of a law is the best evidence of
legislative intent.”). As La. R.S. 9:335 is laid out, its first part, section
(A)(1), makes the general provision for joint custody and indicates an
“implementation order” is the default plan for joint custody. However,
9

section (A)(1) also indicates an “implementation order” is not always
required; there is an exception for the issuance of an “implementation
order” when there has been “good cause shown.”

Section (2)(a) then indicates that when rendered, an
implementation order “shall allocate time each parent shall have
physical custody,” with the goal of joint custody being “that the child
is assured of frequent and continuing contact with both parents.”
Another goal of joint custody, described in section (2)(b), is that as long
as it is feasible and in the child’s best interest, “physical custody of the
children should be shared equally.”

However, physical custody is a separate matter from legal
authority and responsibility over a child. As we previously observed,
“[t]he term ‘custody’ is usually broken down into two components:
physical or ‘actual’ custody and legal custody.” Evans v. Lungrin, 97–
0541, p. 19 (La.2/6/98), 708 So.2d 731, 737. Accordingly, legal
authority and responsibility are addressed in the next section of La. R.S.
9:335 (section (A)(3)), which provides that an “implementation order
shall allocate the legal authority and responsibility of the parents.”

Clearly, as provided in La.R.S. 9:335, the trial court can designate a domiciliary

parent and yet choose to allocate legal authority and responsibility between the

parents. This is what occurred in the present case and did not constitute an

impermissible creation of co-domiciliary parents.

Next, without reference to any supportive jurisprudence on the assertion that

the higher Bergeron standard applied, Jamie argues that the trial court erred when it

granted John the decision-making authority over their children’s medical care and

their sports, band, and extracurricular activities–authority granted to her alone as the

domiciliary parent in the prior decree. We disagree.

“[P]hysical custody is a separate matter from legal authority and responsibility

over a child.” Hodges, 181 So.3d at 705. Although there is a plethora of

jurisprudence finding the higher Bergeron standard applicable to physical custody,7

7
See Granger v. Granger, 09-272 (La.App. 3 Cir. 11/10/09), 25 So.3d 162; Jackson v.
Harris, 05-604 (La.App. 3 Cir. 12/30/05), 918 So.2d 1163; Cedotal v. Cedotal, 05-1524 (La.App.
1 Cir. 11/4/05), 927 So.2d 433; DeSoto v. DeSoto, 04-1248 (La.App. 3 Cir. 2/2/05), 893 So.2d 175;
Francois v. Leon, 02-460 (La.App. 3 Cir. 11/27/02), 834 So.2d 1109; Lee v. Lee, 34,025 (La.App.
2 Cir. 8/25/00), 766 So.2d 723, writ denied, 00-2680 (La. 11/13/00), 774 So.2d 150 (citing
Davenport v. Manning, 95-2349 (La.App. 4 Cir. 6/5/96), 675 So.2d 1230).
10

we find such standard inapplicable to a change in the allocation of legal authority as

provided in the implementation order. As observed in Lee v. Lee, 34,025, p. 5

(La.App. 2 Cir. 8/25/00), 766 So.2d 723, 726, writ denied, 00-2680 (La. 11/13/00),

774 So.2d 150, the findings involving physical custody are based “upon the concerns

underlying the Bergeron decision, including the harm likely to be caused a child by

a change in environment[.]” Whereas physical custody involves the environmental

interaction between the parents and children, legal authority focuses on the

authoritative interaction between the parents as they navigate joint custody.

Addressing the legislative intent of La.R.S. 9:335, the first circuit in Ehlinger

v. Ehlinger, 17-1120, pp. 9-10 (La.App. 1 Cir. 5/29/18), 251 So.3d 418, 426,

observed:

It would appear that the legislature, in requiring an allocation of the
legal authority and responsibility regarding the minor children,
intended to promote greater harmony between the parents by providing
less opportunity for conflict. In order to accomplish this goal, we find
that an implementation order should at a minimum allocate the legal
authority and responsibility for major decisions, such as medical care,
elective surgery, dental or orthodontic care, and school and/or
preschool choices.

In line with Ehlinger, our supreme court “recognize[d] that trial and family courts

facing the myriad challenges in fashioning remedies in joint custody cases need as

many arrows in their judicial quiver as possible.” Hodges, 181 So.3d at 709. “By

making available an implementation order, the legislature has given courts great

procedural flexibility to craft a custody arrangement on a case-by-case basis

that promotes ‘the best interest of the child.’” Id. (emphasis added). We now

turn our attention to the facts of the present case.

The record shows that, although the parents have had a well-established

history of disagreement with each other, Jamie testified that other problems began

as the two children became older and more active. In particular, the children have

11

become involved in organized sports, band, and other interests; thus, a material

change in circumstances has arisen. Corresponding with the children’s increased

involvement, issues have arisen with their participation in those activities,

particularly how that involvement has detrimentally affected physical visitation with

John.

Although there may have been other instances addressed in this most recent

custodial battle, one occurrence particularly piqued the trial court’s interest. The

trial court heard evidence that Remington, an eighth grader, attended the

homecoming dance with his ninth-grade girlfriend instead of coming to John’s for a

scheduled visitation weekend. Addressing Jamie, the trial court engaged her in a

discussion about how her actions in allowing her son to not visit his father pitted the

parenting concepts of the two parents. The following colloquy highlights this issue:

THE COURT: . . . [D]idn’t you realize that the whole reason why
[Remington] didn’t want to go is because he knew that you were going
to let him go to the dance the next night, on Saturday night, and that
dad had said he wasn’t going to let him go to the dance the next night.
...

THE WITNESS: He said – He had told me that his dad flat out
said, I’m not going to have your mom follow you around – us around if
you go to the dance.

THE COURT: But my point is, it wasn’t he [Remington] didn’t
want to go because he didn’t want to see his dad; he didn’t want to go
because he knew if he stayed with you, you were going to let him go to
the dance and he knew his dad wasn’t going to let him go to the dance?

THE WITNESS: I guess so, yes, sir.

THE COURT: Okay. And do you see that how – by you
allowing him to do that, you undermine dad’s credibility and authority
with his child?

THE WITNESS: Yes, sir.

THE COURT: And whether you said it verbally or not—I don’t
know, I wasn’t there—but you are demeaning dad’s ability to have a
different opinion than you about an important decision in a child’s
life[.]
12

In a different vein, though one equally important, the trial court recognized that this

pattern of behavior had resulted in John being denied court-ordered visitation on five

occasions. Ultimately, the trial court would find Jamie to be in contempt of court

for this pattern of behavior.

In addition, the trial court learned that Brycen, the younger son, participated

in the Junior Chef competition, an extracurricular activity in which John

independently involved his younger son during his regularly scheduled visitation

without the knowledge of Jamie. Problems arose because Jamie, as the domiciliary

parent, was required to sign the entry forms for Brycen’s continued participation.

Although Jamie did not oppose Brycen’s continued participation, John would

ultimately abandon Brycen’s continued participation without explaining the reason

behind that decision. Even though Jamie would testify that Brycen was not upset

when his participation in this cooking competition ended, it nonetheless concerned

the trial court.

Finally, the issue of the boys’ participation in sports and band activities came

center stage. Attendant with that issue was John’s medical concerns for

Remington’s chronic knee problems and how sports participation may exacerbate

that problem; complementing that issue was the problems that arose when John’s

court-appointed visitation conflicted with his sons’ obligations to participate in

sports and band practices and any physical therapy Remington may have required.

As to these issues, the trial court heard testimony that Jamie encouraged more

participation and John, who was not totally opposed to his sons’ extracurricular

pursuits, nonetheless favored less participation.

As we review this case, one that has involved this trial judge in the

adjudication of child custody issues between these parents for almost a decade, it

13

exhibits a trial court who was all too familiar with the parties and their stances and

exemplifies just such an instance recognized in Hodges that the trial court needed a

full quiver to address the myriad issues before it. In that light, the trial court crafted

an implementation order to yet again guide two parents who just cannot seem to get

along. Against that backdrop, the trial court stated:

Unfortunately, my take-away from this is that the two of you just
– I’ll use the word “hate” each other. And so, if – I don’t think dad’s
opposed to sports. I think dad is opposed to sports because mom signed
them up for sports.

And I think mom was initially opposed to Master Chef or Junior
Chef . . . not because she was opposed to it but because Dad didn’t
consult her before he sent in the paperwork.

So, it doesn’t matter what it is they never stop long enough to
really think about “Is that what my children want to do? Is that going
to make them happy?” But if the other parent had anything to do with
it “I’m opposed to it”, right off the bat. And then “I’ll find whatever
reasons I want to justify that as we go along.”

Later, the trial court, addressing the parents, continued:

I hope both of you parents understand the predicament you put
me in as a judge. Because one of you is complaining about the other
one’s ability to make medical appointments and the lack of
communication. And quite honestly, it cuts absolutely both ways for
both of you.

The fact that [Jamie] doesn’t communicate with you [John] ahead
of time is more than evident. And the fact that if any decision by
[Jamie], whether it’s a good decision or a bad decision, if she controls it
and you [John] don’t, you just shut down and don’t want to have
anything to do with it. And that is an identification of the entire problem
in this custody dispute.

And the problem is neither one of ya’ll can see that because you
constantly blame the other for one hundred per cent of the problem and
you can’t see any of the blame being on yourself.

I’m not saying – You know I started out with telling your lawyers
how frustrating it was to hear all of this, but we are not getting any better
as we go along.

It’s just both of you are so entrenched in disagreement with the
other. I don’t know what decision I’m going to make. I don’t know

14

what difference it’s going to make in any decision I make. Because
neither one of ya’ll can work through anything.

Finally, to cement its thoughts and to make its determination clear about the parents’

obligations, particularly John’s, and to provide a safety net for Remington and

Brycen, the trial court stated:

I am going to designate [John] as having the responsibility for
making decisions affecting the children in regards to medical; that
means making appointments, making sure the children are there,
making sure that [Jamie] knows about those appointments immediately,
about any illnesses immediately. He is also going to be responsible for
making decisions about the children’s sports, band, and extra-curricular
[sic] activities. And he is responsible for making sure that they are in
attendance at any and all activities that the children participate in.

So, if the children want to play basketball and [John] says, no,
end of discussion.

Now if the children want to play bad enough, then they can
convince their father that that is what they want to do, and I suspect that
will be the case.

Now in order to allow the children the ability to discuss that with
their father, if they want to participate in something and he doesn’t think
that that’s best for them, I’m going to continue the order that the
children continue counseling with Mr. Bruce [Plauché] at least once per
month, and that [John] attend any of those counseling appointments if
requested to by Mr. [Plauché]. And I’m going to order that at least once
per month that [John] and [Jamie] attend counseling with Mr. Plauché
to discuss any issues that needed to be discussed.

After reviewing the record and the jurisprudence, we find no abuse of

discretion in the trial court’s decision. Clearly, the record shows the trial court’s

decision was made considering the best interest of the children. It further evidences

the trial court’s use of the implementation order to diffuse the animosity between the

parents and improve the communication between the parents, as well as the

communication between John and his two sons.

In the alternative, our assessment and determination of the trial court’s

division of legal authority would be the same even if we had applied the Bergeron

standard to this case. The facts of this case not only establish a change of
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circumstances and show that the continuation of the present allocation of authority

is deleterious to the children, but further show the trial court’s division of legal

authority is in the best interest of the children. In particular, the trial court’s

realignment of parental authority tamps down one area of dispute, promotes

discussion between the parents, and causes the children, who are now older and more

active in extracurricular activities, to better communicate with their father. Finally,

the trial court’s mandated counseling functions as a tool to implement its order and

addresses the best interests of the children.

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

AFFIRMED.

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