Shaun Michael Estay v. Erin Flannery Estay ( 2022 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2021 CU 0329
SHAUN MICHAEL ESTAY
VERSUS
ERIN FLANNERY ESTAY
DATE OFJUDGMENT-*
1PR 2 7 2022
ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFOURCHE, STATE OF LOUISIANA
DOCKET NUMBER 117566
HONORABLE F. HUGH LAROSE, JUDGE
Jerri G. Smitko Counsel for Plaintiff/Appellant
Houma, LA
Shaun Michael Estay
Rebecca N. Robichaux Counsel for Defendant/Appellant
Raceland, LA Erin Flannery Estay
BEFORE: GUIDRY, HOLDRIDGE, CHUTZ, WOLFE, AND RESTER, JJ.
Disposition: AFFMIED.
ti r``-ci
J
CHUTZ, J.
Erin Flannery Estay appeals a trial court judgment, modifying the consent
judgment she entered into with her former husband, Shaun Michael Estay, which
established the joint custody arrangements of their two minor children. We affirm.
FACTS AND PROCEDURAL HISTORY
Shaun and Erin were married in 2005, and had two children during their
marriage. On May 2, 2011, Shaun filed a petition for divorce in Lafourche Parish, in
which he sought, among other things, the joint and shared custody of the parties'
children. Erin answered the lawsuit and, in a reconventional demand, also sought
joint custody of the children, requesting her designation as the domiciliary parent
and reasonable physical custody to Shaun. The parties subsequently entered into a
consent judgment on July 13, 2011, agreeing to a joint custody arrangement, with
Erin designated as the domiciliary parent. An attached implementation plan set out
Shaun' s physical custody schedule, allowing him every other weekend from Friday
at 5: 30 p.m. until Sunday at 6: 30 p.m. when Erin worked days and until 5: 30 a.m.
on Monday when she worked nights. Additionally, when Erin worked nights, Shaun
picked up the children from their sitter' s at 5: 30 p.m. and returned them to the sitter' s
at 5: 30 a.m. the next morning.'
Because Erin stopped working nights, on September 27, 2012, Shaun sought
a modification of the July 13, 2011 consent judgment. According to Shaun, the time
he had been spending with the children amounted to a 60/ 40 split between the parties,
and the schedule was no longer in the best interest of the children. He sought a more
equal sharing of physical custody. After a hearing, the parties entered into a new
consent judgment, signed by the trial court on March 6, 2013, in which they agreed
to maintain joint legal custody with Erin as the primary domiciliary parent but
I The parties also agreed to share one- half of each major holiday.
2
modified the implementation plan to allow Shaun physical custody of the children
every other weekend and Wednesdays after school on the weeks he did not have
2
weekend physical custody.
On September 18, 2015, Shaun again sought joint custody and designation as
domiciliary parent.' Alternatively, Shaun requested shared physical custody with
each parent allowed seven days every other week ( seven/ seven basis) and that he
and Erin be designated " co -domiciliary parent." 4 In support of the modification,
Shaun alleged circumstances had changed warranting a modification in that Erin had
withheld the children, interfered with his phone conversations with them, and
obstructed the exercise of his physical custody for the past 2- 3 years. He also averred
that Erin had been cohabitating with a man who was not related to her.
The parties entered into another consent judgment that was signed by the trial
court on April 11, 2017. They agreed to continue sharing joint custody with Erin
named as the domiciliary parent. Shaun' s physical custody with the children was
every other weekend from Thursdays after school until Monday mornings.'
On July 15, 2020, Shaun filed a rule for sole custody, again averring that a
change in circumstances warranted a modification of the parties' custody
arrangements. Particularly, Shaun alleged that Erin failed to allow the children to
speak with him during her physical custody periods; he has been happily married for
2
Specifically, Shaun had physical custody of the children from after school/ daycare pick-up on
Fridays until Monday mornings, and when there was no school on Mondays, the children remained
with him until 6: 00 p.m. on Monday. On Wednesdays that he exercised physical custody, the
children were with Shaun from after school until 8: 00 p.m. During the summer, the parties
alternated every other seven- day period and continued to split time on all major holidays.
Shaun filed the rule to modify custody in Terrebonne Parish despite earlier proceedings having
been conducted in Lafourche Parish. In response to Shaun' s rule, Erin filed exceptions raising the
objections of lis pendens and improper venue, which were granted by the trial court. The matter
was transferred to Lafourche Parish.
4 We note that Shaun' s request of co -domiciliary parent designation was without merit since the
court can only designate a single domiciliary parent. See Hodges v. Hodges, 2015- 0585 ( La.
11/ 23/ 15), 181 So. 3d 700, 706,
When Mondays were not school days, Shaun' s physical custody continued until 6: 00 p. m. that
Monday. The parties continued to share equal time on all major holidays.
41
over eight years in a stable, loving relationship; the children wanted to live with him;
Erin repeatedly left the children alone at home; Erin was unable to provide a suitable
home environment because she had several different men ( most of whom were
married) move in the house and live with her and the minor children; and Erin placed
the children in unsafe situations by bringing them out of town with her and her
married boyfriends. Shaun also averred that he had such grave concern for the safety
and well-being of his minor children that he had contacted the Louisiana Department
of Child and Family Services and had applied for a protective order.
On July 17, 2020, Shaun filed an ex parte petition for protection from abuse
on behalf of the children based on allegations that Erin walked around the house in
the nude in the presence of the minor children. Additionally, he maintained, among
other things, that the children had seen sexually explicit videos and pictures of Erin
on her cell phone.
A hearing on Shaun' s rule for custody was held on August 21, 2020. Because
the parties were unable to finish presenting their evidence, the trial court set
resumption of the matter for September 29, 2020. An interim order was signed,
directing that the parties exercise custody on a seven/ seven schedule until the
hearing, and requiring that the parties and the children submit to an evaluation by a
counselor.
Additionally, Shaun voluntarily waived the request for protection from
abuse and the trial court dismissed the claim.
Following the presentation of additional witness testimony and documentary
evidence on September 29, 2020, the trial court issued a judgment, ordering the
parties to continue joint custody but changing designation of the domiciliary parent
to Shaun. The judgment awarded Erin physical custody of the children every other
Erin appeals.
weekend from Friday at 5: 00 p.m. through Sunday at 5: 00 p.m.'
6 The judgment also ordered that during summer months, the parties share physical custody on a
seven/ seven basis and set forth a holiday schedule.
I]
DISCUSSION
Every child custody case must be viewed in light of its own peculiar set of
facts and circumstances. Elliott v. Elliott, 2010- 0755 ( La. App. lst Cir. 9/ 10/ 10), 49
So. 3d 407, 411, writ denied, 2010- 2260 (La. 10/ 27/ 10), 48 So.3d 1088. The primary
consideration in any determination of child custody is the best interest of the child.
See La. C. C. art. 131; Bonnecarrere v. Bonnecarrere, 2011- 0061 ( La. App. 1st Cir.
7/ 1/ 11), 69 So. 3d 1225, 1232.
La. C. C. art. 134A' provides a non- exclusive list of factors that the trial court
shall consider, along with all other relevant factors for the determination of the best
interest of the child, and the determination as to the weight given each factor is left
to the discretion of the trial court. The illustrative nature of the listing of factors
contained in La. C. C. art. 134 gives the court freedom to consider additional factors;
and, in general, the court should consider the totality of the facts and circumstances
7best
La.interest
C.C. art.of134A provides, that the court shall consider " all relevant factors in determining the
the child,"
which include:
1) The potential for the child to be abused, as defined by Children' s Code Article
603, which shall be the primary consideration.
2) The love, affection, and other emotional ties between each party and the child.
3) 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.
4) The capacity and disposition of each party to provide the child with food,
clothing, medical care, and other material needs.
5) The length of time the child has lived in a stable, adequate environment, and the
desirability of maintaining continuity of that environment.
6) The permanence, as a family unit, of the existing or proposed custodial home or
homes.
7) The moral fitness of each party, insofar as it affects the welfare of the child.
8) The history of substance abuse, violence, or criminal activity of any party.
9) The mental and physical health of each party. Evidence that an abused parent
suffers from the effects of past abuse by the other parent shall not be grounds for
denying that parent custody.
10) The home, school, and community history of the child.
11) The reasonable preference of the child, if the court deems the child to be of
sufficient age to express a preference.
12) The willingness and ability of each party to facilitate and encourage a close
and continuing relationship between the child and the other party, except when
objectively substantial evidence of specific abusive, reckless, or illegal conduct has
caused one party to have reasonable concerns for the child's safety or well- being
while in the care of the other party.
13) The distance between the respective residences of the parties.
14) The responsibility for the care and rearing of the child previously exercised by
each party.
5
of the individual case. La. C. C. art. 134, 1993 Revision Comment ( d). The
consideration of all relevant factors under La. C. C. art. 134 should be followed in
actions to change custody, as well as in those to fix custody initially. La. C. C. art.
134, 1993 Revision Comment ( d). The trial court is not bound to make a mechanical
evaluation of all of the statutory factors listed in La. C. C. art. 134, but should decide
each case on its own facts in light of those factors. Underwood v. Underwood, 2021-
0277 ( La. App. 1st Cir. 10/ 21/ 21), 332 So. 3d 128, 139- 40.
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. C. C. 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. La. C. C. art. 132.
The burden of proof needed to change a custody plan ordered pursuant to a
considered decree is different from that required for modification of a non -
considered decree. Elliott, 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 the children. Elliott, 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. See Elliott, 49 So.3d at 412.
Once a considered decree of permanent custody has been rendered by a court,
the proponent of the modification 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. Bergeron v. Bergeron, 492 So. 2d 1193, 1200 ( La. 1986).
I
However, where the underlying custody decree is a non -considered decree or
consent judgment, the heavy burden of proof rule enunciated in Bergeron is
inapplicable. Elliott, 49 So. 3d at 412- 13.
Rather, a party seeking a modification of
a consent judgment must prove that: ( 1) there has been a change in circumstances
materially affecting the welfare of the child since the original ( or previous) custody
decree was entered; and ( 2) the proposed modification is in the best interest of the
child. Elliott, 49 So. 3d at 413.
Here,
it is undisputed that the underlying custody decree was a consent
judgment. As such, in order to seek modification of that judgment, Shaun had to
prove a change in circumstances materially affecting the welfare of the children and
that the proposed modification is in the best interest of the children.
Generally, the trial court' s determination of these issues is based heavily on
factual findings, and, as such, may not be set aside in the absence of manifest error
or unless clearly wrong. Bonnecarrere v. Bonnecarrere, 2009- 1647 ( La. App. 1st
Cir. 4/ 14/ 10), 37 So. 3d 1038, 1044, writ denied, 2010- 1639 ( La. 8/ 11/ 10), 42 So. 3d
381. 37 So. 3d at 1044. But when a trial court fails to determine whether there has
been a change in circumstances materially affecting the welfare of the children, a
legal error occurs, warranting a de novo review of the evidence. See Cedotal, 2005-
1524 ( La. App. 1st Cir. 11/ 4/ 05), 927 So. 2d 433, 437; Bonnecarrere, 37 So. 3d at
1044.
On appeal, Erin maintains that the trial court applied an incorrect burden of
proof that interdicted its factual findings. Erin points to a statement at the beginning
of trial wherein the trial judge indicated that its role today is " simply to find the best
interest of the children." She also suggests that the lack of an express finding of a
change in circumstances materially affecting the welfare of the children either orally
or in the written reasons for judgment similarly demonstrates that the trial court
applied the wrong burden of proof.
7
Initially, we note that although Erin has correctly recalled the trial judge' s
expressed concern was for the children' s best interest and that he failed to make an
explicit finding that a change in circumstances materially affecting the welfare of
the children had occurred, a trial court' s judgment is presumptively correct and it is
the appellant' s duty to point out any error in the judgment appealed. See Frandria
v. Holden, 2020- 0410 ( La. App. 1st Cir. 12/ 30/ 20), 319 So. 3d 332, 338 n.4, writ not
considered, 2021- 00692 ( La. 9/ 27/ 21), 324 So. 3d 102. The record shows that at the
commencement of the hearing, the trial judge acknowledged the applicability of the
two prongs required to modify a custody decree, and expressly noted there were
new allegation[ s]" under consideration. The trial court provided no other insight
into its reasoning aside from the brief written reasons issued along with its judgment,
over a month after the conclusion of the review hearing. Therefore, nothing in this
record shows that the trial court used the wrong burden.'
Since we review judgments, not the reasons for a judgment, see Beem v.
Beem, 2020- 0897 ( La. App. 1 st Cir. 4/ 20/ 21), 324 So. 3d 682, 686, and given the
presumption of correctness of a trial court' s determination, in the case presently
before us since the record fails to demonstrate that the trial court actually applied an
incorrect burden of proof, we apply the manifest error/ clearly wrong standard of
review to ascertain whether there is support for an implicit factual finding that a
8 This matter is distinguishable from the legal errors committed in Cedotal, 927 So.2d at 436- 37
and Bonnecarrere, 37 So. 3d at 1044. In Cedotal, during the hearing, the trial court stated that
movant bore the burden of proving a change in custody was in the child' s best interest. Irl Finding
the failure to first require movant to prove a change of circumstance materially affecting the child
constituted legal error, the Cedotal court noted the trial court' s approach had effectively precluded
both parents from the opportunity to provide a complete presentation of the evidence. Indeed,
given the lack of evidence of a change in circumstances materially affecting the child, the Cedotal
court could not make a de novo determination and had to remand the matter to the trial court. In
Bonntecarrere, the trial court stated it did not hear " anything to change [ its] feelings concerning
the award of custody and, therefore, will maintain the parties['] joint custody of the minor children
with [ the mother] ... continuing to be designated as the primary domiciliary parent, subject to
visitation of [the father] ... [ and] will maintain the current visitation of [the father] with the minor
children as stated in [ the prior consent judgment]." But it signed a judgment that modified the
physical custody schedule. The appellate court determined it was legal error for the trial court to
do so without first finding a material change in circumstances affecting the welfare of the children.
Id.0
change of circumstances materially affecting the children occurred since the last
consent judgment.
Further, the trial court is vested with broad discretion in deciding child
custody cases. Because of the trial court' s better opportunity to evaluate witnesses,
and taking into account the proper allocation of trial and appellate court functions,
great deference is accorded to the decision of the trial court. Thus, the trial court' s
determination regarding child custody should not be disturbed absent a clear abuse
of discretion. Martello v. Martello, 2006- 0594 (La. App. 1 st Cir. 3/ 23107), 960 So. 2d
186, 191- 92.
The record shows, and Erin admitted, that she walked around in the nude
while the children were present in the house but claimed the children were either in
other rooms with the doors closed or were otherwise occupied. Once Shaun became
aware of this, he filed the rule seeking sole custody which prompted this matter.
Although Erin indicated that she only was nude in the boys' presence before bathing,
while walking from one area of the house to another, or when disciplining them as
she bathed but covering herself up in the process, the record contains evidence to
support a finding that Erin was nude in the boys' presence much more frequently
than she described, and that it was not merely on inadvertent occasions. Evidence
also
supports a finding that Erin' s frequent nudity caused the boys to be
uncomfortable"
to the point of asking her to put clothes on and adapting their
behavior by removing themselves to other areas of the house to avoid seeing her in
the nude. Erin' s nudity in front of the boys occurred for at least one year and perhaps
as long as seven years, and one of the reasons the boys preferred Shaun' s house was
because no one walked around nude there.
Additionally, the record contains evidence supporting findings that: Erin' s
phone had a passcode that her children knew but there was no specific security
feature to keep the children from accessing the folder of explicit pictures; and the
boys saw photos of Erin in the nude, both by herself and with her former boyfriend,
as well as a sexually explicit video of Erin with her former boyfriend while they
were both naked. Evidence also showed that the older boy attempted to shield his
younger brother by encouraging hien not to look " too deep" into Erin' s phone to
avoid seeing additional nude photos and videos of her. And it is undisputed that one
of the boys asked a female student at his school if she had ever taken a nude photo
of herself.
In addition to Erin' s nudity in the boys' presence and the explicit photos and
videos on her phone, the record contains evidence that Erin had a former boyfriend
of about two years, who was a married man at the time of her relationship with him.'
Findings that the children knew that he " had a wife already" and disapproved of the
relationship because the former boyfriend was already married are supported by the
evidence. Erin' s married boyfriend was frequently at Erin' s house when the boys
were there, and Erin admitted that she took the children with her to see her boyfriend
at the home of the friend with whom the boyfriend was living during the time he was
not with her. By the time of the hearing, Erin and her former married boyfriend
apparently had ended their relationship.
Lastly, the record contains the report of Betsy St.Pierre, Ph.D., LPC -S, a
licensed professional counselor who was appointed by the trial court to perform a
custody evaluation of the children. After conducting interviews with the parents
jointly and individually) as well as the father' s wife, the children, and a counselor
who had seen the children 32 times, Dr. St.Pierre recommended that the parties have
shared custody, with Shaun designated as the domiciliary parent. She also suggested
that Erin be awarded physical custody ofthe boys every other weekend and one night
during the school week.
9
According to Erin, her boyfriend had filed a petition for divorce and was no longer living with
his wife.
10
Mindful that the trial court already had an understanding of the dynamics of
the parties'
relationship prior to the commencement of the hearing, once the
evidence of Erin' s nudity in the children' s presence and in photos and videos was
brought to light, it is apparent that from the trial court' s perspective, this new
information was sufficient to constitute a change of circumstances that materially
affected the preadolescent children. The boys' discomfort when their mother was
nude in their presence, adjustment of their behavior to avoid Erin' s presence when
she was nude, and their affinity for Shaun' s house at which they were not exposed
to nudity are findings supported by the evidence that show the children were
materially affected by their mother' s conduct. A finding that one boy had solicited a
nude photo of a female classmate, which is supported by the evidence, demonstrates
that the sexually explicit photos and videos of Erin have already materially affected
him. In light of the boys' impressionable ages, a trier of fact could correctly
determine that their mother' s lifestyle created a vulnerability that was not in the
children' s best interest. And although the trial court disregarded the children' s stated
preference of spending time with each parent on a seven/ seven basis and did not
expressly analyze each of the La. C. C. art. 134 factors, we cannot conclude the trial
court abused it great discretion in heavily weighing the moral fitness of each party
insofar as it affected the welfare of the children so as to modify the parties' joint
custody in the manner it did. 10 See Underwood, 128 So. 3d at 140.
t0 Because the trial court continued the joint custody of the children, only modifying the physical
custody schedule and the designation of the domiciliary parent, a discussion of Erin' s assertion
that the trial court applied an incorrect burden of proof in Shaun' s request for sole custody is
unnecessary and, therefore, pretermitted.
11
DECREE
For these reasons, the trial court' s judgment is affinned." Appeal costs are
assessed against Erin Flannery Estay.
AFFIRMED.
To the extent a legal error interdicted the factfinding process, on de novo review, based on the
evidence undertaken in our application of the manifest error/ clearly wrong standard of review, we
find a change of circumstances materially affecting the children occurred and that a modification
of the parties' joint custody in the manner that the trial court adjusted it is in the best interest of
the children. Accordingly, the trial court' s judgment is alternatively affirmed on this basis, with
Shaun designated as the domiciliary parent and the physical custody schedule adjusted so that the
children spent more time at their father' s house in accordance with the child custody evaluator' s
recommendation while declining to award week night visits with their mother as Dr. St. Pierre
recommended.
12
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2021 CU 0329
ERIN FLANNERY ESTAY
VERSUS
SHAUN MICHAEL ESTAY
GUIDRY, J., dissents and assigns reasons.
l
GUIDRY, J., dissenting.
I respectfully disagree with the majority opinion affinning the trial court' s
judgment.
In the instant case, it is undisputed that the underlying custody decree
was a consent judgment. As such, in order to seek modification of that judgment,
Shaun had to prove a change in circumstances materially affecting the welfare of the
children and that the proposed modification is in the best interest of the children.'
However, with regard to the burden of proof, the trial court stated at the beginning
of trial that "[ its] role today is simply to find the best interest of the children."
Additionally, the trial court failed to mention or articulate any finding of a change
in circumstances materially affecting the welfare of the children either in court or in
its written reasons for judgment. A trial court' s failure to determine whether a
change in circumstances materially affecting the welfare of the children has occurred
constitutes legal error, and this court, if the record is otherwise complete, must render
judgment on the record by applying the correct law and determining the essential
Shaun filed his pleading seeking sole custody of the minor children, which requires a showing by
clear and convincing evidence that sole custody is in the best interest of the children. La. C. C. art.
132. However, because the trial court judgment continued the joint custody arrangement between
the parties and only modified the physical custody schedule and domiciliary parent status, I would
pretermit discussion of any argument raised by Erin that the trial court erred by applying an
incorrect burden of proof to Shaun in seeking sole custody.
1
facts de novo. Cedotal, 05- 1524 at pp. 7- 8, 927 So. 2d at 437; see also Bonnecarrere
09- 1647 at p. 7, 37 So. 3d at 1044.
Erin testified at trial and did not dispute that she walked around her house
naked when the minor children, who at the time of trial were eleven and twelve- year
old males, were home. Erin acknowledged that she also walked around the house
naked when she had physical custody of the boys and her boyfriend was in the home.
Erin stated that she only did this before bathing and she was walking from one area
of the house to another. Erin further acknowledged that she would call the boys into
the bathroom while she was bathing to discipline them when they were fighting,
although she stated that she tried to cover up on such occasions. Erin stated that she
discontinued this behavior a few months prior to trial.
In their interview with the court appointed custody evaluator, Ms. St. Pierre,
the children stated that Erin has been walking around the house naked for years, but
that she had stopped in the past few months. The children disputed that Erin only
does so while walking from one area of the house to another prior to bathing, stating
that she has also stopped and sat on the sofa in the living room while naked and
watched television. The children also acknowledged that this behavior occurred
when Erin' s boyfriend was in the house. Both children stated that their mom walking
around naked makes them uncomfortable. However, while both children indicated
that this behavior made them uncomfortable, they both still like being at Erin' s house
and would like to continue the 7 and 7 arrangement as implemented in the trial
court' s interim order. Furthermore, Ms. St. Pierre stated in her report that upon
observing the children with Erin, they were very comfortable with her and were
excited and cooperative in playing board games with her. Ms. St. Pierre stated that
she did not notice any anxiety, and neither child had any observable deficits in social,
cognitive, or emotional development.
2
Accordingly, based upon a de novo review of the record and the evidence
presented in this case, while I do not condone this type of behavior by a mother
around her adolescent, finale children and find that it clearly demonstrates a lapse in
good judgment, I would find that under the facts of this case, where the mother has
made an effort to correct her behavior and there is a lack of evidence showing that
the behavior has materially affected the welfare of the children, Shaun has failed to
meet his initial burden in seeking modification of the custody award on this basis.
Additionally, I find that Shaun has also failed to present evidence otherwise
establishing that there has been a change in circumstances that materially affects the
welfare of the children. Shaun also alleged that the children had seen videos and
pictures of Erin naked on her cell phone. Erin acknowledged that she became aware
that the children had seen photos on her phone after Shaun had notified the police.
She stated that these photos and videos were located in a file marked " hidden," but
they were not password protected. Erin acknowledged that the children knew the
passcode to her phone and used her phone. The minor children stated that they saw
one or two pictures and a video while looking on Erin' s phone. However, in their
testimony before the court and in their interview with Ms. St. Pierre, the children
stated that after they saw these pictures they stopped looking around on her phone.
There was no testimony wherein the children, Ms. St. Pierre, or any other person
stated that seeing these pictures affected their welfare, affected their relationship
with Erin, or had any adverse effect on them.
Shaun also alleged that Erin had relationships with married men, who stayed
in the home with the minor children, and that she has brought the children out of
town with these men. Erin acknowledged that she had been in a relationship for two
years with a married man, and that he stayed in the home, but she stated that the
relationship ended months prior to trial. Erin stated that she had been very open
about her relationship with this lean, that she had brought him to the children' s
3
football games where Shaun was also present, and that Shaun had never had a
problem with hien in the past. Erin also stated that she had brought the children with
her and the boyfriend on occasion to a friend' s house in Watson. However, Erin
stated that she never told the children that the boyfriend was married. The children
stated that the boyfriend was the only male that stayed in the house while they were
there. Accordingly, other than speculation by Shaun that this relationship
endangered the children because of what might happen if the boyfriend' s wife found
out, there is no evidence in the record that this prior relationship, which has ended,
materially affects the welfare of the children.
Shaun further alleged that Erin prevented the children from speaking with him
during her periods of physical custody. Through testimony at trial and evidence
admitted at trial, it was revealed that the children were not prohibited from speaking
with Shaun, although one child did state that the other child was told one time he
could not speak to Shaun. When confronted with phone records showing the call
history between himself and the children, Shaun stated that the problem was that he
was not allowed to speak freely with his children because Erin insisted that the
children be by her when they spoke with him. However, the record is devoid of any
evidence demonstrating that the welfare of the children was materially affected by
the fact that Erin was next to the children during their phone conversations with
Shaun.
Finally, Shaun alleged that Erin leaves the children at home alone. However,
the testimony of multiple witnesses, including neighbors, the maternal grandmother,
sitters, and the children indicate that on days when Erin had to go to work before the
children left for school, a neighbor/ sitter would come over to the house and get the
children up and make sure they got dressed for school. Shaun even acknowledged
that he used the same sitters on days he had custody of the children because it was
convenient. Erin and the children stated that if she wasn' t at home when the oldest
M
child arrived home from school, he would be at home alone until she got there.
However, Erin and the youngest child acknowledged that the youngest child was
never left at home alone, and she was home by the time he got off of the bus.
Additionally, the testimony of multiple witnesses indicates that Erin, a sitter, or the
maternal grandmother assisted the children when they were attending school
virtually" while at home due to COVID. Accordingly, from my review of the
record, while the evidence demonstrates that Erin may not always be at home, the
children are not routinely left alone but rather, are in the care of a neighbor, a sitter
or the maternal grandmother if Erin is not there.
Therefore, after a thorough review of the record, I would find that Shaun has
failed to meet his burden of establishing a change in circumstances materially
affecting the welfare of the children so as to support a modification of custody.
5
ERIN FLANNERY ESTAY STATE OF LOUISIANA
COURT OF APPEAL
VERSUS
FIRST CIRCUIT
SHAUN MICHAEL ESTAY 2021 CU 0329
HOLDRIDGE, J., dissents.
I concur in part and dissent in part. I concur in that portion of the opinion that
affirms the trial court' s judgment ordering the parties to continue joint custody and
changing the designated domiciliary parent to the father. However, I dissent from
that portion of the opinion that affirms the judgment insofar as it limits Ms. Estay' s
physical custody of the children to every other weekend. The trial court' s judgment
ordered the parties to share physical custody on an alternating weekly basis during
summer months. Based on the facts of this case, if such an arrangement is
appropriate, i. e., not harmful to the children and in the best interest of the children
for the summer months, it should likewise be appropriate for the remainder of the
year. Accordingly, I would remand this matter to the trial court, directing it to
comply with La. R.S. 9: 335( A)(2)( A) and ( b) in establishing the provisions of the
joint custody implementation plan that address the sharing of physical custody. La.
R.S. 9: 335( A)(2)( b) provides, " To the extent it is feasible and in the best interest of
the child, physical custody of the children should be shared equally." ( Emphasis
added.)