Mills v. Wilkerson3/26/2001
As amended April 9, 2001.
A.K. MILLS, JR. AND VIRGINIA MILLS PLAINTIFFS-APPELLANTS
v.
CHARLES LLOYD WILKERSON DEFENDANT-APPELLEE
Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. 32,308 Honorable E. Rudolph McIntyre, Judge
Robert P. Mcleod, Jr. and Laurie Burkett Counsel for Plaintiffs-Appellants. John Taylor Bentley and Dennis Grady Stewart Counsel for Defendant-Appellee
Before Norris, Stewart and Peatross, JJ.
The opinion of the court was delivered by: Norris, Chief Judge
Maternal grandparents, Virginia and A.K. Mills ("the Mills"), appeal a judgment modifying a nonconsidered joint custody decree and awarding sole custody of Charles Ryan Wilkerson ("Ryan") to his father, Charles Wilkerson. Charles answers the appeal, challenging the trial court's grant of visitation rights to the Mills. We reverse and render. Factual Background Charles and Catherine ("Cathy") were married August 19, 1988; Ryan was born September 26, 1992. In May 1996, Cathy and Charles separated; Cathy, Ryan and her two children from a previous marriage, Peter and Sarah, moved in with Cathy's parents, the Mills. Later that month, Cathy was killed in a train accident. The children continued living with the Mills who, with permission from their biological father, soon adopted Peter and Sarah. Pursuant to a July 11, 1996 stipulated decree, the Mills and Charles agreed to share joint custody of Ryan on a 50/50 basis. Due to his work schedule, however, Charles rarely exercised custody and for the next three years, Ryan spent most of his time living with his grandparents and siblings. On August 24, 1998, Charles married Tammy, who has custody of Taylor, her daughter from a prior marriage and the same age as Ryan. On June 25, 1999, Charles filed a petition to modify the joint custody plan, requesting sole custody of Ryan. The Mills filed a counter motion to modify the existing joint custody decree, seeking designation as domiciliary custodians. The court found that the Mills failed to show that sole custody with Charles would result in substantial harm to Ryan. A judgment was signed on August 17, 1999, granting Charles sole custody of Ryan effective May 26, 2000; in the interim, the Mills were to have temporary custody while Ryan would be integrated into Charles and Tammy's home. It also ordered that Ryan undergo therapy to prepare him for the move; further, "in order to receive this sole custody award," Charles was to pay for half of therapy costs, complete a substance abuse program including AA, and show documentation of continuing employment. From the bench, the court advised Charles, "if you had not been the parent, or if this had been a situation of nonparents v. nonparents, or parent v. parent, I would not be awarding you custody of this child." In light of these concerns, the judgment also provided that prior to May 26, 2000, the Mills or any other interested party could provoke a re-evaluation hearing if they felt that circumstances had changed such that actually transferring sole custody to Charles would result in substantial harm. On May 3, 2000, the Mills filed for a re-evaluation hearing, alleging that the custody modification would cause Ryan substantial harm in that Charles had not attended the required AA meetings, maintained stable employment and residence, or timely paid for half of the therapy costs and expert witness fees; and that Ryan was in distress about moving in with Charles and Tammy. After receiving evidence, the court again found that the Mills failed to prove t
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