Thomas Warren Pounds VS Brandi Nicole Spears
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CU 2375 THOMAS WARREN POUNDS VERSUS BRANDI NICOLE SPEARS Judgment Rendered Appealed from Twenty March 23 2007 the Second Judicial District Court in and for the Parish of Washington State of Louisiana Docket Number 90 180 Honorable Larry J Greene Judge Presiding Mark D Plaisance Counsel for Plaintiff Appellant Baker LA Thomas Warren Pounds Norma Beedle Baton Rouge LA Sal J Liberto Jr Covington Brandi Nicole LA BEFORE Counsel for Defendant CARTER C J Appellee Spears WHIPPLE AND McDONALD JJ WHIPPLE J This matter is before 1 setting forth court For the pediatrician Thomas Warren Pounds the from judgment of the a visitation schedule for Brandi Nicole a of the minor child mother appeal by on father of the minor child D P domiciliary parent and trial us 2 and following the child designating reasons affiml in part we s vacate Spears school and in pmi and remand FACTS AND PROCEDURAL HISTORY D P was born between Pounds and Pounds on April Pounds filed a D P again July 31 petition a result of and the three lived petition seeking custody of D thus the as pmiies separated of 2004 when the of 2004 on 2000 10 Although Pounds and Spears Spears formally acknowledged bilih until was not set 2005 when D P was for P The 1 a relationship never together On married after his 22 April parties reunited The hearing 2004 in July parties separated nearly five years old On August Spears began dating Bmuey Ritchie whom she eventually married 2005 2005 October 15 initiated After Pounds and proceedings seeking custody of D On November 9 D P October live with 2005 the trial grandparent s D P Pounds had separation in was home in 2When the on Spears separated Pounds again P comi rendered an interim order that Spears and that Pounds be allowed visitation consisting of every other weekend and every IAfter 1 bom the Wednesday pending parties lived at Pounds s a hearing mother s on the matter home and Spears s Bogalusa parties purchased reunited in and placed July on resided in of 2004 they Spears grandparent July of2005 2 s s a mobile home that property until their The trial court further ordered that D P that D P was Following reasons as trial on and car not to be alone with Ritchie and that Ritchie 2006 30 January was driving and subject to any camps A alternating holidays reasons was signed On June 2 2006 on or summer in judgment COnf01111ity Spears filed a required to the child travel to s Rule to Set Amend for the Minor and for 1 that the existing visitation schedule be amended to DP provide day care for as with the trial court pleading captioned requesting designated alternating March 9 2006 Contempt to on programs that the child is enrolled TranspOliation and Health Care Provider be designating Pounds granting Spears visitation Visitation allow her 3 the trial court rendered oral granting Pounds and Spears joint custody of D P weekends oral a domiciliary parent the in ride in any not to was s dming the and treating pediatrician Hammond from Bogalusa 2 that Dr Palazzo summer to pick that she 3 not be up the minor child for visitation 3The appeared with Spears before the COlmnissioner on a mle for protective order filed by Pounds The paliies and Ritchie screen which Ritchie failed testing positive for were ordered to submit to a dmg methadone opiates and oxycodone Based on these results on November 3 2005 the Commissioner granted the restraining order sought by Pounds prohibiting Ritchie from coming into contact with the child for sixty days pending the custody hearing in January record shows that on October 27 2005 Ritchie of2006 Ritchie felony dmg possession disturbing the peace offenses a simple battery charge prohibiting him from harassing or contacting his ex wife were criminal record which included multiple lengthy s convictions two DWI convictions and a restraining order also introduced into evidence At the conclusion of the November 9 2005 hearing in ordering that the minor child not be left alone with Ritchie or ride in a vehicle driven by Ritchie the trial comi stated Im probably to To going begin to make with I have who to associate with people to do I can a few calls going a problem to of you but I m some and its going to be offensive lay it out just like I with Mr Ritchie the Court has limitations as to what Ican ttell you who to marry who to live with t tell you to go to school see it I can t tell you they or can tell whatever I can t tell you what to do in your life But I or can to individuals restrict exposure of a child to adults That s part of my job 3 or to other children At the time the rule residing in Bogalusa with Ritchie Pounds had from Southeastern Louisiana graduated University with degrees in finance and and was 2005 accounting in December of Hammond the at enrolled D P in at the Spears and had obtained Spears would pick summer at 1 00 p m camp to Hammond to Bogalusa camp to him up and Spears The parties to aware pick every had further pick that Spears agreed up D P was up the child he from i altelnating e day on on camp Friday complaining about began transporting after work and at 1 every was her 00 p m After service of this rule having to from day meet to pick Likewise for DP Tuesday after work where Spears would Thursday up and that m that when it keep him overnight until Wednesday evening Bogalusa camp to until DP up scheduled weekend visitation Pounds would s court him until 6 30 p begin her weekend visitation when Pounds became drive by the trial Wednesday and keep scheduled weekend visitation she would day in job university the child from school every from full time holidays the parties had agreed that Spears would also pick weekends and Wednesday a was camp program in Hammond in order to be able day In addition to the visitation awarded the was Thus when the school year ended Pounds had university a summer accept the job during not filed attending school to unemployed was bring the child from day Spears would keep the child Sunday evening Spears s 2006 the trial of which custody are lule court not at was heard rendered on July 12 2006 Thereafter on August judgment containing numerous provisions issue in this appeal However with respect to 14 many domiciliary and the visitation schedule and other matters at issue herein the trial court ordered 1 That the child s pediatrician 4 be Dr Palazzo 2 That Spears visitation be modified s through Friday except for Tuesday from alternating weekends or Saturday consist of to Monday and Wednesday overnight at 12 00 p until m Monday mornmg physical custody of the child at all other times That Pounds retain 3 including alternating weekends from Friday after work until Monday morning until Saturday Spears on 12 00 at That the holidays Pounds be allowed remain on a weekend or a after work Tuesday overnight previously as school as or ordered except that possible with the child holiday following if the mother is That the child attend Enon 5 and m much time as Mondays designated as child p Fliday evelY week after work Wednesday overnight 4 weekends from s his on having the working Elementary School for kindergarten and 6 That for first grade the Lab School University would be considered further addressed in 4The judgment further ordered a as an that neither parent discuss Southeastern Louisiana alten1ative location pre tlial conference before 1 that Spears custody litigation or SUlmner to scheduling take the child to scheduled programs with other children such as Bible School or recommended and strongly suggested that Spears obtain 3 at 2 camp full be 4 summer that it is part time employment the other parent in iiont of the child 4 or that neither parent talk about the custody litigation in the presence of the child and his pediatrician or any other professional involved with the child 5 that Spears not pennit the child her husband ofthe minor child any other person to call or refer to her husband as the father or daddy 6 that each parent inform the other parent in advance of all activities of or including but not lilnited to school functions and awards 7 that the parties equaUy split the costs of school supplies and school unifonns 8 that Spears transport the child to and fi om school and that Pounds has the right to take the child when he is not the child working 9 that the minor child be evaluated by a mental health professional appointed by 10 that the mental health professional make the decision if she finds necessary to evaluate the minor child s parents and step parent and 11 that all previous judgments and the court orders of the court not modified by the judgment 5 remain in full force and effect Pounds legal authority live a to that because the make all decisions physician the trial domiciliary parent has the affecting the child by ordering Pounds majority of the time with Spears school and the appeals contending and domiciliary parent and effectively made Pounds name only Pounds fuliher modified if the advantages to current notes that a considered a custody decree change outweigh s as domicilimy parent in custodial arrangement is deleterious the child from the the child specifically dictating unlawfully stripped Pounds of his rights court to to the only be can child any hann caused the or by the change of environment and Spears failed to demonstrate that the CUlTent decree was harmful to the child or that a change would benefit the child the trial cOUli committed contends legal error by modifying Thus he decree issued a only six months earlier DISCUSSION Assignment In Pounds cOUli s first of Error Number One assignment erroneously stripped of error on appeal he contends that the trial him of his rights as affecting the child by dictating the child decisions by ordering domicilimy parent s school and to make physician that the minor child reside with his mother for the and majority of time Louisiana Revised Statute 9 335 B 2 provides that the domiciliary parent is the parent with whom the child shall primarily reside but the other parent shall have physical custody during time periods that child has frequent and 9 335 B decisions affecting the child unless the child All are the contact LSA R S otherwise 3 continuing with both parents domicilimy parent an assure has authority that the Pursuant to to make all implementation order provides major decisions made by the domiciliary parent concelning subject to review by the court upon motion of the other 6 parent However in this made judicial review it is by the domiciliary parent R S 9 335 B 3 Moreover interest of the child is decision Evans v placed are presumed that all the decisions in the best interest of the child the burden of proving on major non they are not domiciliary parent who La 2 6 98 Lungrin 97 0541 97 0577 LSA in the best opposes the 708 So 2d 731 738 Pursuant the trial reasons School to the court Spears near Spears during judgment decided that D P home in s apparent fi om the trial and addressed in court a visitation Tuesday 12 00 p retained or m Enon at until Monday morning physical custody court be considered would need as be to Accordingly the trial facilitate the child by providing that of the child court s use of the nights eight effectively effectively making only one after work until term for nights that the per week and the schedule and five weekend ordered the child to 5The judgment provided domicilimy parent Monday mOlning visitation at 5 set In on sum forth by domiciliary parent physical custody of weekend her the actual night s had Spears Monday through Friday except However Pounds the awarded Pounds the four week average month and to grade Wednesday ovelnight and alternating weekends from Saturday despite the trial D P apparently Elementmy School with the minor child evelY matter scheduling pre trial conference before altelnating weekends from Friday the trial University would but concluded that the modified the visitation schedule attendance Elementary the week The trial court further determined that for first alternative location oral s Bogalusa for kindergarten and reside with the Lab School at Southeastenl Louisiana an should attend Enon court days on an primarily reside with Spears domiciliary parent parties visitation 7 would continue to alternate holiday We agree with the trial Enon court to Elementary School court ened the visitation schedule confected given by accommodate its determination that the child should attend domiciliary parent trial that appellant 6 as the child LSA R S required by Accordingly clearly does 9 335 B vacate the we in Thus 2 we find the portion of the judgment setting forth the visitation schedule and remand for the trial visitation schedule with the primarily reside not conformity with LSA RS establish court to a and the views 9 335 expressed herein Although order we agree with Pounds that it that the child attend school in given that the school Hammond harmful for the child to be time and enrolled in a new necessary to complete matter to the trial court to date this opinion is rendered provisions of to conduct reside LSA R S to cunent ensure we a court to in a at remand the trial on that the child be this court pennitted to remand this we 30 hearing within thirty confect feel it would be classroom situation Elementary School Thus the school year at Enon will allow D P nearly completed Accordingly school for the trial Bogalusa when Pounds works pulled from his impose such conditions shall year is was enol days from the visitation schedule for Spears that primarily with Pounds in accordance with the 9 335 consistent with the trial court s prevIOus designation of him as the domiciliary parent Pounds also contends in this designating Dr Palazzo domiciliary parent he the child In as has the the assignment that the trial child s pediatlician legal authOlity and Spears discussed changing DP s 6Notably the judgment D P is silent s as pediatrician or 8 that decisions as s the affecting November of 2005 he He testified that to the trial court contact with Ritchie noting to make such support Pounds notes that in October court ened in previous Spears concerns about who was a former employee of Dr Palazzo told him that for she wanted D P before the Pounds in pediatrician that in be to by seen Bogalusa thus there opened were no Spears had accompanied him and D P Bogalusa and physicians never DP or In of the decision physicians previously made doctor at the LSD clinic going at to some he the such decision saw on s parties court stranger Pounds such decisions the by receiving notes the child as that the child had been correctly the clinic and their the trial comfortable with Dr Palazzo rather than all three visits to him 7 the that overall he was to have the care the LSD clinic treatment in contravention child treated him going ruling ignores domicilimy parent has the ultimate right As such courts should be reluctant to making absent showing a that a by becoming a was there the fact Moreover the clinic at of D P that if the child only However this going only about the clinic problem with no at pediatrician stated the was to He further noted options by them Pounds testified Dr Palazzo designating to reasons According Palazzo Dr other complaint voiced any treatment s very satisfied with the such other than Dr Palazzo someone LSD clinic new personal to as make involved in parent has improperly exercised authority We agree that aside fi om failed to produce that the decision on preferred clinic and to care personal preference Spears has being provided by the change doctors we find there felt that since Dr that D P be the clinic that the review 7Spears her any evidence to show that the child with Dr Palazzo Instead voicing seen was was no evidence Ps clinic was to D P contrary Palazzo had been D was more s presented pediatrician by him rather than possibly having to see a comfOltable improper or best interest to rebut the since birth she different physician at Spears complained that she was unable to pronounce the physicians names at the complained that it was difficult for her to understand the doctor when he spoke 9 presumption that this decision by Pounds which to authority enor make for the trial Templeton was court to matter as a proper clearly within his was Therefore of fact and law negate his decision under the facts of this Templeton 1998 2503 La App 15t Cir v 1 4 99 it case was See 730 So 2d 1070 1076 Moreover discussion abrogate Pounds as Thus D P s although the parties dispute whether there decision the provisions of LSA determine the best See Holland 852 note that regarding this the to we RS we also vacate 9 335 B 3 pediatrician for Holland 34 996 v cormTIunication requirement which grants the D P App 2nd Cir 11 6 La to subject the portion of the judgment 01 authority Pounds judicial review 799 So 2d 849 designating Dr Palazzo of Error Number Two next contends that the trial comi the considered custody decree burden necessary to wanant as trial Spears failed such a comi erred in to meet modification i the 8 Bergeron heavy that e modifying a change of circumstances has occuned such that the continuation of the present anangement is custody decree so deleterious or that harm to the child as 2d at 1200 as not to justify a a custody modification of the change of environment is the child See Bergeron 492 1202 On review did to likely caused by substantially outweighed by its advantages Pounds to assignment Assignment terms does not pediatrician We find merit to this So was we modify note that the the existing domicilimy parent 8See Bergeron v 14 August 2006 decree of joint However as custody and designation of discussed above Bergeron 492 So 2d 1193 10 judgment by its stated La 1986 we agree that the and judgment significantly schedule and improperly designated the child contravention of LSA R S domiciliary parent we modified the improperly 9 9 335 Because we and the s visitation parties pnmary prior designation physician In of Pounds as have vacated the judgment in these respects pretermit fmiher discussion of this assignment of error 10 CONCLUSION For the above and judgment for foregoing of the trial comi physical custody pediatrician is vacated This hearing within thirty 30 confect a the portion and matter is remanded to the trial as 14 2006 providing the child s conduct a court to days from the date this opinion is rendered 9 335 and for any necessmy further Brandi Nicole August Dr Palazzo designating visitation schedule in accordance with the Costs of this expressed herein of the forth the visitation schedule and setting of D P reasons provisions of LSA R S proceedings consistent with appeal are assessed to the views against the appellee Spears AFFIRMED IN PART VACATED IN PART AND REMANDED WITH INSTRUCTIONS 9With regard which may now be moot given the passage of time that the trial court also erred in overruling his decision to emoll D P in summer day camp we again note that such decision making is within the purview of the domiciliary absent a showing by the non domiciliary parent that a decision is not in the child s to Pounds s claim parent best interest which Spears has failed to do herein IONonetheless although we pretennit discussion we note that our review of the record indicates that since the rendition ofthe considered decree as set forth in the March 9 2006 judgment there does not appear to have been any change of circumstances sufficient to meet the Bergeron burden as set forth above 11
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