142 So. 3d 202
La. Ct. App.2014Background
- Parents (Koussanta and Dozier), unmarried, have a child born 2008; they separated when the child was an infant.
- Juvenile court originally ordered child support; Koussanta later sued for custody in district court seeking equal/shared custody and domiciliary status.
- After trial, November 14, 2011 judgment awarded joint custody, Dozier domiciliary parent, and unsupervised overnight visitation to Koussanta; therapy and co‑parenting classes were ordered.
- February 25, 2013 trial on a contempt/modification rule resulted in an amended custody/visitation order (additional weekly overnight, revised holiday/summer schedule) and a requirement that the child attend counseling.
- On June 14, 2013 Koussanta filed a Motion to Modify custody seeking primary custodial parent or eo‑domiciliary status, alleging continued school behavioral problems and multiple deficiencies in Dozier’s parenting/communication and requesting change of therapist.
- Dozier filed an exception of no cause of action; the trial court granted it and dismissed Koussanta’s motion without prejudice. Koussanta appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Motion to Modify stated a cause of action by alleging a material change in circumstances under Bergeron | Koussanta: alleged continued behavioral problems, Dozier’s unstable home, undermining of parental authority, medical/communication failures, and need to change therapist — enough to show material change and justify modification | Dozier: allegations do not meet Bergeron’s heavy burden because facts were already considered or do not show continuation of custody is so deleterious as to justify change | Court: Motion did not state a cause of action; most allegations had been previously litigated in the February 25, 2013 considered decree and were insufficient to meet Bergeron |
| Whether the February 25, 2013 order was a "considered custody decree" (triggering Bergeron) | Koussanta: argued it was a visitation decree (implicitly suggesting Bergeron should not apply) | Dozier: maintained it was a considered custody decree entered after a trial on parental fitness and custody | Court: February 25, 2013 order was a considered custody decree; Bergeron standard applies |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (establishes heavy burden for modifying a considered custody decree)
- Menge v. Menge, 545 So.2d 674 (La. App. 5th Cir. 1989) (interprets Bergeron and requires movant to allege in general terms that continuation of custody is deleterious or that change’s advantages outweigh harm)
- Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211 (La. 2006) (procedure for ruling on exception of no cause of action; accept well‑pleaded facts as true)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (explains when a custody decree is "considered" — after evidence on parental fitness)
- Rome v. Bruce, 27 So.3d 885 (La. App. 5th Cir. 2009) (standard that whether a petition states a cause of action is a question of law)