Everett v. EverettEverett v. Everett
Jack N. Rogers, Baton Rouge, for respondent.
MARCUS, Justice.
Pursuant to a rule filed by Billy Joe Everett on December 14, 1981, against his former wife, Cynthia Kaye Everett, the latter was ordered to show cause why she should not be held in contempt of court for interfering with her former husband‘s visitation rights and why the custody of their eight-year-old son, Daniel Lee Everett, should not be changed from her to her former husband. After a hearing, the trial judge found Cynthia Kaye in contempt of court but defеrred sentence on the condition that she obey the orders of court. He further ordered that custody of Daniel be changed to his father with visitation rights in favor of his mother. Cynthia Kaye appealed. The court of appeal affirmed.1 On Cynthia Kaye‘s application, we granted certiorari to review the correctness of that decision.2
On October 14, 1977, the parties were divorced by judgment of a state district court in Galveston County, Texas. Cynthia Kaye was appointed “Managing Conservator” of their minor child with visitation rights in favor of Billy Joe. Subsequently, Cynthia Kaye moved to Baton Rouge, Louisiana. In 1979, Billy Joe brought suit to have the divorce decree recognized and made the judgment of the Louisiana court. Cynthia Kaye answered and reconvened requesting that the visitation rights be mоdified to reflect the difficulty of interstate visitation. Judgment was rendered on August 29, 1979, recognizing the Texas judgment and making it a judgment of the court but modifying the visitation rights. Subsequently, on June 9, 1980, the visitation rights were further amended and modified.
The evidence adduced at the hearing on the rule for contempt and to change custody reflects that Billy Joe had not seen his son since Easter 1981 and that during the nine months that followed, Cynthia Kaye had on some occasions interfered with his attempts to see or communicate with the child. At the end of the 1981 Easter vacation, Cynthia Kaye drove to a roadside park outside Lаke Charles, Louisiana, to pick up her son in order to reduce the driving of her former husband who was recovering from an illness. When Billy Joe did not arrive at the time agreed upon,3 Cynthia Kaye becаme quite upset. The following summer, Billy Joe‘s attempts to arrange visitation were unsuccessful. He was entitled to one month summer visitation to be divided into
The child also testified at the hearing. He stated that his mother had never said anything to try to turn him against his father and that he loved both his parents. In response to questioning by the court, the child said that he would live with his father if ordered to do so but preferred to live with his mother and “brother and sister thаt loved [him].” Daniel was a straight-A student in a magnet school, outgoing and participated in outside activities. His softball coach testified that Daniel was well-liked, a fine athlete and easy to cоach.
Cynthia Kaye remarried but was divorced in 1981. No children were born of the marriage. In addition to Daniel, Cynthia Kaye had a boy, age fourteen, and a girl, age twelve, by a former marriage. All threе children lived with her in a three-bedroom house in Baton Rouge where they had resided for the past two years. Cynthia Kaye was a licensed barber and worked from 9 to 5; however, her older son would stay with Daniel after school until she got home from work. She testified that when Daniel needed special transportation for school activities, she would arrange for time off from work. She further testifiеd that she never attempted to destroy Daniel‘s love for his father.
Billy Joe was remarried. One child, age three, had been born of that marriage. Also living with Billy Joe and his new wife were her nineteen-year-old daughter by a prior marriage, his seventeen-year-old daughter by a prior marriage, and an infant girl of whom they had temporary protective custody. They lived in a four-bedroom house in Texas City, Texas. Billy Joe was employed as a laborer in the maintenance department of Union Carbide at the Texas City plant. His wife, a licensed real estate broker, was not working; she intended tо stay home “until the children [went] to school.”
At the conclusion of the hearing, the trial judge rendered oral reasons for judgment. First, he found Cynthia Kaye in contempt
The court of appeal, finding no abuse of discretion, affirmed the judgment of the trial judge. Cynthia Kaye contends the trial judge erred in placing undue weight on the fact of hеr contempt in finding that it was in the best interest of the child to change custody. We agree.
The best interest of the child is the sole criterion in a change of custody case.
In the instant case, Daniel, age eight, had been in his mother‘s custody for almost five years and had done exceedingly well. He was a straight-A student, outgoing and engaged in outside activities. The testimony that he was happy and well-adjusted was uncontroverted. The child testified that he loved both parents and would go with his father if the court ordered him to do so but preferred to remain with his mother, brother and sister. Clearly, either pаrent could provide a comfortable, suitable and loving home for the child. We consider that the trial judge gave undue weight to his finding that Cynthia Kaye was in contempt for thwarting her former husband‘s visitation with the child. Interference with visitation alone is not a sufficient reason to change custody absent a showing of a detrimental effect on the child. No such showing was made here. An award of custody is not а tool to regulate human behavior. The only object is the best interest of the child. Cleeton v. Cleeton, supra. We do not consider that it was in Daniel‘s best interest to have custody changed in this case. The trial judge clearly аbused his discretion in doing so. The court of appeal erred in holding otherwise. We must reverse.
DECREE
For the reasons assigned, the judgment of the trial court and the affirmance thereof by the court of аppeal are reversed insofar as they change the custody of Daniel Lee Everett from his mother, Cynthia Kaye Everett, to his father, Billy Joe Everett. It is ordered that the child be returned to his mothеr upon finality of this decision; visitation rights previously granted in favor of Billy Joe Everett are reinstated. The case is remanded to the trial court for further proceedings in accordance with lаw. Costs of this appeal are assessed against Billy Joe Everett.