Winterer v. Winterer

335 So.3d 538

Maggye Rebecca Turner WINTERER, Plaintiff-Appellee

v.Seth Russell WINTERER, Defendant-Appellant

No. 54,480-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered March 9, 2022.

CARMOUCHE, BOKENFOHR, BUCKLE & DAY, PLLC, By: John N. Bokenfohr, Counsel for Appellant

SOCKRIDER, BOLIN, ANGLIN & BATTE, By: Gregory H. Batte, Shreveport, Counsel for Appellee

WEEMS, SCHIMPF, HAINES, SHEMWELL & MOORE, By: Kenneth P. Haines, Shreveport, Counsel for Appellee

Before MOORE, STONE, and ROBINSON, JJ.

ROBINSON, J.

In this relocation dispute, a father who opposes relocation appeals the judgment permitting the relocation to occur. After converting this appeal to a writ, we deny the writ and refer this matter to the trial court for consideration of any remaining custody matters.

FACTS

Maggye Winterer and Seth Winterer were married on February 22, 2013, in Caddo Parish. A son, H.W., was born on May 31, 2013. A second son, W.H., was born on November 6, 2016. Maggye has a son from a prior marriage who is two years older than H.W. Maggye has domiciliary custody of her oldest son.

Seth was born in Spokane, Washington, and moved to Shreveport to attend college at Centenary. Following graduation, he worked ten years for a company which sold online advertising before leaving that company in the beginning of 2014. He stayed at home for approximately a year to help raise H.W., then worked with a digital marketing company for a few months. In 2016, he started a business with two associates but they eventually went their separate ways. In 2017, he started Digital Logic, which builds websites and does internet marketing for businesses, mostly law firms, around the country. Seth earns between $100,000 and $200,000 per year.

The couple lived in Shreveport during their marriage. They began experiencing marital woes in 2016 when Seth thought Maggye's spending was excessive. In May of 2017, Seth discovered that Maggye had taken $54,000 from the account of Conversion Twelve, a business that he owned. Maggye was a member of Conversion Twelve, but she lacked signature authority on the account. Seth sold her engagement ring to recover some of the money. He also believed that Maggye was taking his Adderall medication. Maggye complained that she would ask for help at home but Seth would tell her to handle it herself.

In July of 2017, Maggye checked herself into Willis-Knighton Rehabilitation Center for substance abuse treatment. On July 20, 2017, Maggye entered into treatment at Edgefield Recovery Center near Alexandria, Louisiana. The couple agreed that Maggye's mother would watch the boys in Alexandria during the week while she was in treatment so Seth could work. Maggye remained at Edgefield for less than three weeks.

It was noted in a psychiatric evaluation on July 26, 2017, that Maggye had been abusing opiates and Adderall. She reported using ten narcotics and drinking a fifth of whiskey per day. Maggye told the psychiatrist that she planned to live with her mother and three children in Alexandria on the farm and get a job. The diagnostic impression was severe alcohol use disorder and severe opiate use disorder.

On August 30, 2017, Maggye wrote in a letter to Seth that her intent was to permanently relocate with the children to Alexandria. The reasons that she gave for relocating were: (i) her family in Alexandria was a very good support system for her and a huge help with the kids; (ii) living in Alexandria would significantly improve the boys’ lives as they have a safe neighborhood setting there; (iii) public schools in Alexandria are generally better than the ones in Shreveport and their school is one of the more popular ones and is only three blocks away; (iv) there is a program for confidence building and self-esteem in Alexandria; and (v) moving in the middle of the school year would not benefit the boys.

On September 5, 2017, Maggye filed a petition for a La. C.C. art. 102 divorce in Caddo Parish. Maggye sought joint custody of the children with her being named domiciliary parent, as well as child support and spousal support. There was no mention of relocation in the petition.

On September 22, 2017, Seth filed an objection to relocation of the children. He sought a temporary and permanent order preventing the relocation. He requested that the court appoint a custody evaluator expert to determine whether the proposed relocation was in the best interest of the children. The service note said it was sent to Maggye's attorney by fax and U.S. Postal Service.

On that same date, Seth filed an answer and a reconventional demand. He prayed for joint custody with him being named as domiciliary parent, along with child support. He asserted that Maggye was precluded from receiving spousal support. A hearing was set for October 5, 2017. Maggye filed her answer to the reconventional demand on October 2, 2017. It did not mention relocation.

On October 20, 2017, the trial court entered an interim order agreed to by the parties which awarded joint custody with Maggye as the domiciliary parent. Seth, who would have custody every weekend, was ordered to pay child support and interim spousal support. The custody exchange would take place near Natchitoches. Trial on the incidental matters was reset for December 12, 2017.

A new interim order agreed to by the parties was entered on January 23, 2018. Seth's child support obligation increased, but the amount he paid in interim spousal support decreased. The custody arrangement remained in effect.

Maggye texted to Seth on October 12, 2017, "We are moving back to Shreveport no matter what ...." Later that month, she texted to him, "I'm moving back to Shreveport so you can be with your boys." When Seth responded that having the kids live by him was the most important thing to him, she replied, "Understand. Which is why we are moving back and why I told you a few ideas to get out of the lease[.]" After Thanksgiving of 2017, Maggye texted to Seth, "I'm moving back for you Seth." Presumably in January of 2018, Seth texted, "I hate to not see those kids everyday[.]" Maggye texted in reply, "Well Seth only a few more months Then we can be neighbors and both will be able to see them every day[.]" On March 1, 2018, Maggye texted to him, "We need to figure out what school we want the boys in next year and if I need to start looking for a house to buy or if we may be moving back in together or what[.]"

An order granting Maggye's motion to substitute counsel was signed by the trial court on July 30, 2018. On August 2, 2018, Seth filed a petition for a La. C.C. art. 103 divorce and a motion to set trial on custody and relocation. The relocation and custody issues were set to be tried on October 25, 2018. On August 7, 2018, the trial court signed an order allowing Seth to substitute his counsel of record.

On October 10, 2018, Maggye and Seth filed a joint motion for the court to appoint Dr. John Simoneaux to evaluate the family. The court ordered that all pending matters be reset when Dr. Simoneaux's report was rendered. All previous orders were to remain in force and effect.

On October 12, 2018, Seth filed a rule for judgment of divorce. A judgment granting the divorce was rendered on November 28, 2018.

Dr. Simoneaux's report

Dr. John Simoneaux was appointed by the court to examine Maggye and Seth. He interviewed Seth on March 5, 2019, and Maggye a couple of days later. Dr. Simoneaux's report was issued on March 29, 2019.

Dr. Simoneaux noted that Seth had an arrogant attitude regarding Maggye. The clear implication that Seth gave to Dr. Simoneaux throughout the interview was that Maggye is not as smart, worldly, or as sophisticated as he is, and by implication, not as good a parent as he would be.

Seth told Dr. Simoneaux that after he realized the money was missing and later noticed Maggye was drinking more, he began staying at the office to avoid fighting in front of the kids. Dr. Simoneaux noted that although Seth was staying away because of his concerns about her drinking, he was still leaving the children in her care.

Dr. Simoneaux wrote that he was puzzled that Seth allowed Maggye's parents to care for the children while she was in treatment since he had some availability. Dr. Simoneaux also noted that following inpatient treatment, Seth agreed to Maggye and the kids remaining in Alexandria through December. Dr. Simoneaux further noted that the situation must not have seemed grave to Seth because he took no action to remove the children from the care of Maggye or her parents.

Seth told Dr. Simoneaux that the perfect solution would be for Maggye to move back to Shreveport and share equal custody. Dr. Simoneaux was puzzled that Seth would be willing to enter into an equitable physical custody arrangement after he was so critical of her. Dr. Simoneaux thought that Seth's personality suggested he would have difficulty abiding by court orders that were contrary to him.

According to Dr. Simoneaux, Maggye believed that Seth had become a better father since they moved away because he was responsible for their sons on weekends and had to make them a priority over work.

Dr. Simoneaux noted that Maggye was seeing Cindy Nardini, a local counselor, and was being prescribed medication by Dr. Jim Quillin, a local psychologist. He knew both providers and thought she was getting very good care.

Asked by Dr. Simoneaux what would be the perfect solution, Maggye replied it would be for Seth to move to Alexandria because the boys were much happier there and are around so many cousins close to their age.

Maggye told Dr. Simoneaux that she had been charged with careless and reckless operation in 2005 and had a DWI in 2006. She smoked marijuana periodically in high school. She drank every day for six weeks in 2017. She had regularly used painkillers for two to five months, and had taken prescribed stimulants. Maggye thought Seth had a problem with alcohol.

In his summary, Dr. Simoneaux noted that Seth was very critical of Maggye. Maggye seemed to...