80 So. 3d 774
La. Ct. App.2011Background
- Kingston divorce in 2008; consent judgment grants joint custody and imposes a restriction: neither parent may have overnight guests of the opposite sex while exercising custody.
- Consent judgment acknowledges children’ ages and allows sleepovers with friends and certain family members; Sally’s fiancé is not prohibited if certain conditions apply to Sally’s case.
- In 2010, Sally files rule to modify the consent judgment, alleging her fiancé is a stable part of the children’s lives and requesting removal of the restriction.
- Randy opposes modification, arguing Sally’s rule lacks a stated cause of action and fails to show a material change in circumstances or best interests.
- Trial court allows merits hearing, finds the consent decree was a voluntary restriction made when emotions were high, and that Sally’s engagement and family setup could justify modification; lifts restriction only as to Sally’s fiancé.
- Appellate court reverses, holding Sally failed to prove a material change in circumstances affecting the children’s welfare and that lifting the restriction is not in the children’s best interests; reinstates restriction as to Sally’s fiancé.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sally stated a change in circumstances warranting modification | Kingston | Kingston | Yes, Sally stated a potential change but evidence insufficient for modification |
| Whether engagement constitutes a material change in circumstances | Kingston | Kingston | No, engagement alone not enough; required evidence of welfare impact |
| Whether lifting the restriction is in the children’s best interests | Kingston | Kingston | No, best interests do not favor lifting for Sally’s fiancé |
| Whether the trial court erred by lifting the restriction as to Sally’s fiancé | Kingston | Kingston | Yes, reversal; restriction must remain unless a proper change in circumstances and best interests are shown |
Key Cases Cited
- Givens v. Givens, 53 So.3d 720 (La.App. 1 Cir. 2010) (custody deference to trial court; best interests standard)
- Elliott v. Elliott, 49 So.3d 407 (La.App. 1 Cir. 2010) (non-considered decree; modification requires material change and best interests)
- Bonnecarrere v. Bonnecarrere, 37 So.3d 1038 (La.App. 1 Cir. 2010) (burden to show material change in circumstances for modification)
- Becnel v. Becnel, 732 So.2d 589 (La.App. 5 Cir. 1999) (parental rights subordinate to child welfare)
- Cook v. Cook, 965 So.2d 630 (La.App. 2 Cir. 2007) (burden of proof for modification; change in circumstances)
- Montgomery v. Marcantel, 591 So.2d 1272 (La.App. 3 Cir. 1991) (living together not per se unacceptable; societal attitudes)
- Lozes v. Lozes, 542 So.2d 603 (La.App. 5 Cir. 1989) (moral implications of non-traditional households)
- Stobart v. State, DOTD, 617 So.2d 880 (La.1993) (standard of review for factual findings; defer to trial court)