Alexander v. Alexander

831 So. 2d 1060, 2002 WL 31513159
CourtLouisiana Court of Appeal
DecidedNovember 13, 2002
Docket02-683
StatusPublished
Cited by6 cases

This text of 831 So. 2d 1060 (Alexander v. Alexander) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Alexander, 831 So. 2d 1060, 2002 WL 31513159 (La. Ct. App. 2002).

Opinion

831 So.2d 1060 (2002)

Scott G. ALEXANDER
v.
Sharon ALEXANDER.

No. 02-683.

Court of Appeal of Louisiana, Third Circuit.

November 13, 2002.

*1062 Lisa Kay Nelson, Williams & Nelson, Leesville, LA, for Plaintiff/Appellee Scott G. Alexander.

Bradley O'Neal Hicks, Dowden & Hicks, Leesville, LA, for Defendant/Appellant Sharon Alexander.

Court composed of HENRY L. YELVERTON, SYLVIA R. COOKS, and BILLIE COLOMBARO WOODARD, Judges.

YELVERTON, J.

This appeal concerns child custody and temporary spousal support. Sharon Alexander appeals claiming that the trial court erred in granting her and Scott Alexander the joint care, custody, and control of their minor children, with each of them being designated co-domiciliary parents. Her main complaint is that the trial court awarded evenly split custody of the couple's two young children. The trial court gave Sharon custody for 182 days and Scott custody for 183 days. Sharon lives with her parents in California, and Scott lives on post at Fort Polk in Louisiana. She also claims that the trial court erred in finding that Scott should not have to pay interim spousal support as long as he pays the couple's substantial community obligations. We find merit in her assignment regarding split custody, but find no merit in her other contentions. Therefore, for the reasons given below, we reverse in part and affirm in part.

Scott and Sharon were married on August 24, 1995, in Elizabethtown, Kentucky. They moved to Vernon Parish in Louisiana, in July of 2000 when Scott, a Staff Sargent in the U.S. Army, was assigned to Fort Polk. Two children were born of the marriage. Kenneth, the oldest, is now three, and Christy is just over one. On December 6, 2001, Sharon, fed up with Scott's uncontrolled spending, left the family home in Fort Polk and took the children to her former home in Los Angeles. Both Scott and Sharon are originally from Los Angeles, and both of their parents and extended family members still live there. Since leaving Louisiana, Sharon and the children have lived there with her parents.

Less than a week after Sharon left, Scott sued for divorce. At a hearing on the matter, custody was also an issue. Following a short trial, the court found that despite the considerable distance between the parents, custody of the children should be divided between them, 183 days a year to Scott and 182 days a year to Sharon. The extra day in Scott's favor was to allow him to retain family housing on post. Additionally, the trial court ruled that Scott would not be forced to pay interim periodic support to Sharon as long as he continued to pay the community's considerable outstanding debts.

Sharon's brief on appeal, as stated earlier, mainly attacks the alternating equal custodial periods. Scott has not favored us with an appellate brief.

SPLIT CUSTODY IN EQUAL INCREMENTS

We find that the trial court clearly abused its discretion in ordering that the parents share physical custody in alternating six-month increments. In custody cases, the paramount consideration is always the best interest of the child. La. Civ.Code art. 131; Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). "The two parties stand on equal footing at the outset of trial, and the court determines the best *1063 interest of the child based on the relative fitness and ability of the competing parties in all respects." McGee v. McGee, 98-1911, p. 6 (La.App. 3 Cir. 10/13/99), 745 So.2d 708, 712 (citing Warren v. Warren, 617 So.2d 545 (La.App. 2 Cir.), writ denied, 620 So.2d 846 (La.1993)). Consequently, each case must be decided on the basis of its particular facts and circumstances by weighing and balancing those factors favoring and opposing custody of the respective parents. Id. The factors to be considered by the trial court in making a custody determination are set out in Louisiana Civil Code Article 134, including:

(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.

The standard of review on appeal of a trial court's custody decision is a clear showing of abuse of the trial court's discretion. Williams v. Bernstine, 626 So.2d 497 (La.App. 3 Cir.1993). When considering all of these factors, we find that the trial court abused its discretion in splitting the physical custody of the children into alternating six-month periods.

Joint custody does not require an equal sharing of physical custody. Nichols v. Nichols, 32,219 (La.App. 2 Cir. 9/22/99), 747 So.2d 120; Meylian v. Meylian, 478 So.2d 218 (La.App. 3 Cir.1985). The legislative scheme providing for joint custody of children mandates substantial time rather than strict equality of time. See La.R.S. 9:335; Nichols, 747 So.2d 120. While the 1700-mile distance between them will unfortunately prevent one of the parents from seeing the children frequently, equal time is not required by law.

The distance between Fort Polk and Los Angeles is over 1700 miles. Switching homes every six months does not lend itself to stability for young children, especially if the children are effectively prevented from seeing the non-custodial parent for six months at a time. Continuity and stability of environment are important to consider in child custody matters. Ezell v. Kelley, 535 So.2d 969 (La.App. 2 Cir.1988).

In Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731, the Louisiana Supreme Court found that a trial court's *1064 award of four-month, alternating, split physical custody was not in the best interest of the two-year-old child. The evidence in that case revealed that such an arrangement between a parent who lived in the state of Washington and a Louisiana parent deprived the child of a sense of stability. The supreme court also found that transporting the child back and forth between the states of Washington and Louisiana at four-month intervals would not be in her best interest.

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831 So. 2d 1060, 2002 WL 31513159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-alexander-lactapp-2002.