DANA LOVETT HUMPHREYS v. CLAY HUMPHREYS (2017)

Clay Humphreys appeals from the family court's November 13, 2015 judgment, which, among other things, awarded joint custody to him and his former wife, Dana Humphreys, and designated Dana as the primary domiciliary parent of the couple's minor child. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Clay and Dana Humphreys have previously appeared before this court for relief related to the protracted and less than amicable litigation concerning their divorce and the custody of their minor child, D.V.H. (D.O.B. 6/30/05).¹ See Humphreys v. Humphreys, 2008-1628 (La. App. 1 Cir. 12/23/08) 2008 WL 5377637 (unpublished opinion), writ granted, jdgmt. vacated, 2009-0185 (La. 3/13/09), 4 So.3d 798; Humphreys v. Humphreys, 2008-1974 (La. App. 1 Cir. 12/23/08) 2008 WL 5377623 (unpublished opinion). This litigation began in 2007 with Dana's petitions for divorce and custody. Since that time, there have been various contempt judgments against both parties, shifting custody orders, petitions for protection from abuse, and criminal proceedings.

The instant appeal challenges the family court's November 13, 2015 judgment rendered following a hearing that spanned ten days, beginning on November 3, 2014 and concluding on October 8, 2015. Pertinent to this appeal, the November 13, 2015 judgment granted Dana's modification of custody, granting the parties joint custody of D.V.H. and designating Dana as domiciliary parent. The judgment provided that Clay would have custody of D.V.H. on “alternating weekends from Friday afternoon with pick-up after school until returning the child to school on Monday morning[.]” Also included in the November 13, 2015 judgment was a child support order based on the incomes imputed to the parties by the court: $4,882.93 per month for Dana, and $6,833.33 per month for Clay. The family court further ordered Clay to pay 75 percent of the court-appointed expert witness fees.

ASSIGNMENT OF ERRORS

1. A parent seeking to modify custody must initially prove a material change in circumstances. Because Dana failed to prove any change in circumstance, other than her daughter told a custody evaluator she wished to live with her mother, the Family Court erred in modifying custody.

2. Under Bergeron v. Bergeron[, 492 So.2d 1193 (La. 1986),] in order to modify a considered decree, a parent must prove that continuation of the present custody is deleterious to the child or prove by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages. Because Dana failed to prove either Bergeron element—in fact the minor child did better educationally while in the custody of the father—the Family Court erred in modifying custody.

3. A party is not voluntarily underemployed if the underemployment results through no fault of the party. Because Dana Humphreys did not prove that Clay is voluntarily unemployed, the [Family Court] erred in sua sponte setting his income at $82,000.

4. While the [Family Court] has vast discretion in assessing costs, it erred herein in assessing Clay with 75 percent of the court-appointed expert fees.

MOTION TO STRIKE

At the outset, we address the motion to strike Clay filed in this matter on July 22, 2017. In said motion, Clay argues that this court should strike Dana's appellee brief or alternatively, specific portions of said brief that refer to extrinsic events and rulings outside the record. Clay further contends this court should strike Dana's request for attorney fees and costs based on a frivolous appeal, arguing that Dana is not entitled to same as she has not answered the appeal. The motion was referred to the merits for consideration.

We have reviewed the motion to strike, as well as Dana's response thereto, and hereby strike any reference in Dana's appellee brief to evidence not contained in the record before us on review. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. Landis Const. Co., L.L.C. v. State, 2015-1167, pp. 3-4 (La. App. 1 Cir. 2/29/16), 199 So.3d 1, 3. Moreover, with regard to Dana's request for an award of $10,000.00 in attorney fees for a frivolous appeal, we note that the recovery of damages for frivolous appeal is authorized by La. Code Civ. P. art. 2164 and Uniform Rules—Courts of Appeal, Rule 2-19. Louisiana Code of Civil Procedure article 2133 specifically states, however, that an appellee “must file an answer to the appeal” if “he demands damages against the appellant.” Although an answer to an appeal is the ordinary vehicle for asserting a claim for frivolous appeal damages, the jurisprudence has also recognized an independent appeal as an alternate vehicle. Jackson Nat'l Life Ins. Co. v. Kennedy-Fagan, 2003-0054, p. 11 (La. App. 1 Cir. 2/6/04), 873 So.2d 44, 51, writ denied, 2004-0600 (La. 4/23/04), 870 So.2d 307. Dana did not file an independent appeal or answer Clay's appeal to assert her claim for damages. Thus, Dana's claim for attorney fees for frivolous appeal are not properly before this court and are hereby stricken from her appellee brief.

LAW AND DISCUSSION

A. Modification of Physical Custody

The paramount consideration in any determination of child custody is the best interest of the child. See La. Civ. Code art. 131; Evans v. Lungrin, 97-0541, p. 12 (La. 2/6/98), 708 So.2d 731, 738. If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. La. Civ. Code art. 132. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, 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. Id.

In determining the best interest of the child, La. Civ. Code art. 134 enumerates twelve non-exclusive factors to be considered by the court, which include:

(1) The love, affection, and other emotional ties between each party and the child.

(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(6) The moral fitness of each party, insofar as it affects the welfare of the child.

(7) The mental and physical health of each party.

(8) The home, school, and community history of the child.

(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

(11) The distance between the respective residences of the parties.

(12) The responsibility for the care and rearing of the child previously exercised by each party.

Furthermore, La. R.S. 9:335 provides:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.

(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.

(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

(3) The implementation order shall allocate the legal authority and responsibility of the parents.

B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.

(2) 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 assure that the child has frequent and continuing contact with both parents.

(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.

Every child custody case must be viewed in light of its own particular set of facts and circumstances. Gill v. Dufrene, 97-0777, p. 6 (La. App. 1 Cir. 12/29/97), 706 So.2d 518, 521; Major v. Major, 2002-2131, p. 4 (La. App. 1 Cir. 2/14/03), 849 So.2d 547, 550. Thus, the trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Major, 2002-2131 at 4, 849 So.2d at 550; Elliott v. Elliott, 2010-0755, p. 7 (La. App. 1 Cir. 9/10/10), 49 So.3d 407, 411-412, writ denied, 2010-2260 (La. 10/27/10), 48 So.3d 1088.

In this case, and as in most child custody cases, the family court's determination was based heavily on factual findings. It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and of that needed to change a custody plan ordered pursuant to a non-considered decree. Elliott, 2010-0755 at 8, 49 So.3d at 412. A “considered decree” is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Elliott, 2010-0755 at 8, 49 So.3d at 412. By contrast, a non-considered decree or uncontested decree is one in which no evidence is presented as to the fitness of the parents, such as one that is entered by default, by stipulation or consent of the parties, or is otherwise not contested. Id.

Once a considered decree of permanent custody has been rendered by a court, the proponent of the change bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement 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 caused by a change of environment is substantially outweighed by its advantages to the child. Id. citing Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La. 1986).

Clay argues on appeal that Dana failed to put forth sufficient evidence to meet the heavy burden placed on her under Bergeron as the previous custody award in this case was a considered decree. In response, Dana contends the family court listened to numerous witnesses, including two court-appointed custody evaluators, and weighed the factors outlined in Article 134, before making its decision to change the custody arrangement in her favor.

After considering the evidence, including expert and witness testimony presented over ten days, the family court gave extensive oral reasons for judgment from the bench concerning its decision on custody, as follows:

All right. This case involves a modification of a judgment rendered by this court. Always, when the court considers -- in any proceeding where the court is considering custody, it's always awarded consistently with the best interests of the child. And, in making this determination today, I'm absolutely considering all of the factors in Article 134 in this, in the pleading in considering the evidence.

And, in considering all of the evidence, I do find there is sufficient evidence to grant the request for modification of custody. So the issue, one of the issues before the court is to what that modification should be.

Article 132 requires that the court shall award custody to parties jointly; however, 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.

So this case is one in which it has -- if I had more time I would put a lot more than I'm going to be able to put on the record in terms of what I find from the evidence -- what is clear -- but I don't have time so let me just try to summarize quickly.

While it's clear from this case that [Dana] had a history of not complying with court orders, and that is absolutely part of ․ the totality of the evidence that's being considered there is far more evidence presented over these eight days of trial evidencing that [Clay's] actions are those that overall have not been actions that have been motivated by the best interests of [D.V.H.]. Including a decision that turned out to be good in one perspective. That is the decision to homeschool her, in that you know her grades have certainly significantly improved by that.

I think Dr. [Mary Lou] Kelley said it well in her report when she said, [Clay's] decision to put [D.V.H.] in that homeschool environment is a way of flaunting his designated decision-making and authority over educational matters and an environment in which he has this ability to exercise this control, to which there is a pattern to the extent that I believe it has certainly had a negative impact on [D.V.H.], and it's clear from the incident at gymnastics, the incident when [Clay] was in the hospital and from the hospital bed he's dictating what's happening.

It's clear throughout all the incidences in the case, most of the ones that we spent the most time on, that the incident at the Dunham school are what eventually led to her not being able to go to the Dunham school anymore, even to today.

․

I find the testimony of [Dana] to be very honest even though some of it is to her detriment on some of the issues and I get that, you know, the way in which she said things to, you know, the professionals that she's dealt with in the case have not revealed to them the full story.

And I also get that, you know, Dr. [Kit] Harrison was brought in to talk about, you know, what he testified to -- the practices that should have been followed not being followed with regard to Dr. Kelley and Dr. [Simoneaux]. Yet that testimony does not cause me to disregard the reports of Dr. Kelley and Dr. [John Simoneaux] which reveal some consistency in some of -- in a lot of what informed my ruling with regard to [Clay].

Not because they said it and found it, ․ not only that, but because the other evidence that was presented is consistent with those things that they talk about, you know, in the report. And, you know, I've heard Dr. [Simoneaux] at many different seminars speak and he, he mentioned this during the testimony at this trial and I agree with him, you know, to some extent although I weigh all the factors.

But the factor of facilitating a relationship between the other parent and the child in his, you know, in his mind, is one of the most important factors, you know, weighing all the factors.

But in considering that factor, there is significant evidence, [Clay], that your decision-making and actions are not focused on [D.V.H.'s] best interest, but are, in a lot of -- in most areas, are focused on -- are directed to ․ depriving [Dana] of her right to a joint custodial relationship and to [the ability to] exercise custodial time with her child and to receive information about the child's education whether she's in homeschool at your house or not; you know, to not have her to have to fight for little things like a telephone call with her daughter or, you know, the convenience of being able to pick her daughter up from the location near her co-op versus having to drive all the way back to, you know, your home.

Just those little things like that that should be no-brainers if you're thinking about [D.V.H.'s] best interest should be, you know, should be easy decisions to make yet you make the decisions in ways that ․ make things difficult for [Dana] but more importantly do not work in [D.V.H.'s] best interest and that's a problem.

I have -- you know this is a case where, I don't know that I've ever had a custody case where I've heard eight days, you know, of testimony. But this is a case, [Clay], where, let me just tell you. I have -- I've heard evidence ․ that has really put me very close to sometimes over, maybe back over, you know, because you hear evidence you think you're going to do one thing and you decide -- to this line of sole custody ․ to [Dana], very close.

In fact, I went back and, you know, read the custody evaluations of the two experts. And let me just tell you. I am as close as I could be to awarding sole custody to [Dana], but I'm not because the burden is so heavy. You know, I'm as close as I come, but I'm not. I'm awarding joint custody.

But I am designating, with zero hesitation, changing the designation of domiciliary parent to [Dana], giving her complete and final authority over all decisions. I believe that [Dana] is going to perform, based on the evidence, as a domiciliary parent is intended to perform under the law where I believe you have absolutely failed.

But this is with a very firm warning to you, that I'm so close to awarding, I mean, you know [Dana], sole custody, that if there is a problem -- if there is a problem, I don't think it's going to be that difficult for me to, you know, receive evidence that would, you know, support an award of sole custody to her.

That said, the other thing -- well, let me just get to my pleadings. I'm going to actually start with [Dana's] July 3, 2014, rule for modification of custody, because that's where most of the decision-making is. Joint custody, [Dana] is designated as the domiciliary parent.

I've already ruled on the issue of [D.V.H.] being in a traditional school, which is already occurred. I am, in terms of the custodial time, awarding to, [Clay] -- modifying the custodial time and awarding to [Clay] alternating weekends where he picks the child up from school on Fridays and he returns the child to school on Mondays. Those alternating weekends shall commence on the weekend of October 16th.

If Monday or Friday is a holiday, then [Clay] gets the benefit of the extended weekend; that is he can pick up the child from school on Thursday and return the child to school on the Tuesday. All exchanges are to take place at the school, so that the parties have no interaction with each other on custodial exchanges.

Following a thorough review of the record before us, we find no error in the family court's factual findings and cannot say that the family court abused its discretion in its determination that a modification of the physical custodial allocation was warranted. This assignment of error is without merit.

B. STATUS OF CLAY'S EMPLOYMENT AND INCOME IMPUTED TO HIM BY FAMILY COURT

Clay argues that there is no clear testimony that he is underemployed such that the family court should assign a yearly income to him. Clay contends that absent a showing that he is purposefully unemployed, the family court should consider any underemployment as a “good faith” effort on his part to obtain employment. Moreover, Clay asserts there is no basis for the trial court to believe that Clay could earn $82,000.00/year and no indication in the record as to how the family court arrived at that figure.

In response, Dana contends that Clay was voluntarily underemployed through the eleven months of trial, but yet able to pay for exorbitant, extraordinary expenses during that time, including but not limited to living expenses; fees for custody evaluators (including $30,000.00 paid to Dr. Harrison); attorney fees; the costs associated with go-karting competitions for D.V.H.; and travel expenses for a snow skiing trip and trips to Disney World and New York for the Macy's Thanksgiving Day Parade. Dana argues that the family court had no option but to look at Clay's lifestyle and impute income to him because Clay had no bank statements to establish how he paid his expenses, nor did he file income taxes for the years in question.

Louisiana Revised Statutes 9:315(C)(5)(b) provides that for child support calculations, income includes the potential income of a party who is voluntarily unemployed or underemployed. Louisiana Revised Statutes 9:315.11(A) provides that if a party is voluntarily underemployed, child support shall be calculated based on a determination of income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years. Whether a party is voluntary unemployed or underemployed is a question of good faith. A.S. v. D.S., 2014-1098, p. 8 (La. App. 4 Cir. 4/8/15), 165 So.3d 247, 253. Voluntary underemployment is a fact-based determination subject to the manifest error standard of review. Id. The manifest error standard of review is based, in part, “on the trial court's ability to better evaluate the testimony of live witnesses, compared with an appellate court's sole reliance upon a written record.” Id. When presented with two permissible views of the evidence, “the trier of fact's choice between them cannot be manifestly erroneous.” Id. The trial court has wide discretion in determining the credibility of witnesses and its factual determination will not be disturbed on appeal absent a showing of manifest error. Saacks v. Saacks, 2005-365, p. 13 (La. App. 5 Cir. 9/26/06), 942 So.2d 1130, 1138. When determining whether a parent is underemployed for purpose of calculating a child support obligation, the court shall consider that parent's earning capacity in light of all circumstances. Hansel v. Hansel, 2000-1914, p. 6 (La. App. 4 Cir. 11/21/01), 802 So.2d 875, 880, writ denied, 2001-3365 (La. 3/8/02), 811 So.2d 880.

When asked what income was used for the parties in calculating the child support obligation, the family court stated as follows:

For -- I imputed for [Dana]; I used income of $4,882.93 per month. For [Clay] I imputed income to him, in the amount of $82,000 a year.

So in considering how to impute income, how to determine [Clay's] income, there are many factors that went into that consideration from the evidence starting with the evidence of the income that was used when the child support was calculated in 2011 was $10,000. Considering the fact as well, that [Clay's] testimony, his last—his testimony—well, the evidence from the 2012 income tax packages, which is the last time that he filed, revealed an income of—I [don't] have it in front of me—$5,700; about $5,000, which I find to be completely unreasonable for someone who has, you know, paid at some point, private school tuition; is paying for homeschool; the additional cost for the co-op whether you put it in homeschool or not; is paying these sums for karting trips—I can go on and on—it is unreasonable to believe that his income is the only sources of income, and that's not the case, because he had, you know, the 2012 presented multiple documents, but it's an earning. It is an earning potential based on all of the evidence.

Following our thorough review of the record, we agree with the family court that $82,000.00/year is a reasonable income to impute to Clay based on the evidence presented. Clay testified that the last time he filed federal income taxes was in 2012, when his adjusted gross income was negative $5,000.00. He indicated that he had not yet filed his taxes for 2013 or 2014 because he could not afford to pay the accountant. However, Clay added, as he did not owe any taxes for those years, he knew he would not be penalized. When asked how he paid his bills, Clay indicated that he had inherited some money from his father and had liquidated some assets. Later in his testimony, Clay admitted that he had not worked for the last couple of years. He further acknowledged that although he did not have the money to pay an accountant to prepare his taxes over the last two years, he did have the money to pay for lavish trips and vacations—snow skiing twice, three trips to Disney World, and two trips to New York City for the Macy's Thanksgiving Day Parade—as well as the expenses associated with D.V.H.'s go-karting activities. Considering this testimony, along with the evidence in the record regarding Clay's lifestyle notwithstanding the fact that he had not been working for at least two years at the time of the hearing in this case, we find no manifest error in the family court's decision to consider Clay's earning potential in imputing $82,000.00/year income to him in its child support calculation.

C. ASSESSMENT OF COURT-APPOINTED EXPERT FEES

Clay argues that the family court abused its discretion in assessing him with 75 percent of the expert witness fees for both Dr. Mary Lou Kelley and Dr. John Simoneaux. Clay further contends the proper allocation of the fees should have been 50/50 “since both Dr. Kelley and Dr. Simoneaux were appointed by the court, Dana benefitted by the expert testimony, and Dr. Kelley's testimony necessitated Clay hiring his own expert to demonstrate the fallacy in her opinion.” Dana responds, arguing that the family court has discretion in casting the costs associated with the custody evaluations and that the assessment of 75 percent to Clay was appropriate based on the ultimate findings of the family court. We agree with Dana on this issue.

Under La. R.S. 13:3666, La. R.S. 13:4533, and La. Code Civ. P. art. 1920, the trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Arnaud v. Scottsdale Ins. Co., 2015-0185, p. 3 (La. App. 1 Cir. 9/18/15), 181 So.3d 759, 761. While the general rule is that the party cast in judgment should be assessed with court costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems just, even against the party prevailing on the merits. See La. Code Civ. P. art. 1920; St. James Behavioral Health Hosp., Inc. v. Gopalam, 2016-0170, p. 4 (La. App. 1 Cir. 7/28/16), 199 So.3d 639, 642, writ denied, 2016-1696 (La. 1/9/17), 214 So.3d 864.

It is clear from the record that both parties benefitted from the court-ordered evaluations and testimony and recommendations of Drs. Kelley and Simoneaux. It was within the family court's discretion to allocate those costs 75 percent to Clay and 25 percent to Dana, and we find no abuse of discretion in regard to that allocation.

CONCLUSION

For the above and foregoing reasons, we affirm the family court's November 13, 2015 judgment. We assess all costs associated with this appeal against appellant, Clay Humphreys.

AFFIRMED; MOTION TO STRIKE GRANTED IN PART.

FOOTNOTES

1.   To protect the identity of the minor child involved in this appeal, we have used initials in this opinion. Uniform Rules—Courts of Appeal, Rule 5-2.

PETTIGREW, J.