Arbuckle v. Arbuckle

833 So. 2d 1119, 2002 WL 31758738
CourtLouisiana Court of Appeal
DecidedDecember 11, 2002
Docket36,616-CA
StatusPublished
Cited by5 cases

This text of 833 So. 2d 1119 (Arbuckle v. Arbuckle) 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
Arbuckle v. Arbuckle, 833 So. 2d 1119, 2002 WL 31758738 (La. Ct. App. 2002).

Opinion

833 So.2d 1119 (2002)

John R. ARBUCKLE, Plaintiff-Appellee,
v.
Karla Gonzales ARBUCKLE, Defendant-Appellant.

No. 36,616-CA.

Court of Appeal of Louisiana, Second Circuit.

December 11, 2002.

*1120 E. Ray Kethley, Shreveport, for Appellant.

Gary V. Evans, Mansfield, for Appellee.

Before STEWART, KOSTELKA and DREW, JJ.

STEWART, J.

This appeal arises out of the trial court's involuntary dismissal of defendant, Karla Lovell's rule to modify custody and to set child support. Mrs. Lovell not only appeals the dismissal of her rule, but also the trial court's assessment of all costs against her. For the reasons set forth herein, we affirm the judgment of the trial court denying the rule for modification of custody and assessing Mrs. Lovell with all costs. However, we reverse the judgment of the trial court insofar as it denies Mrs. Lovell's request for a determination of child support, and remand the matter to the trial court for further proceedings.

FACTS

John Arbuckle and Karla Lovell (formerly Arbuckle) were married on September 18, 1987, in Logansport, Louisiana, where they resided as husband and wife until approximately March of 1999, when Mrs. Lovell moved out of the matrimonial domicile. The parties had one minor child, Krysta Dawn Arbuckle, born on June 17, 1993.

On March 18, 1999, Mr. Arbuckle filed a petition for divorce and incidental relief including a request that the parties be granted joint custody of their minor daughter, with him being designated the domiciliary parent. Mrs. Lovell responded with a reconventional demand that she be awarded sole custody of the minor child subject to visitation rights in favor of Mr. Arbuckle. Mrs. Lovell also made a request for child support.

The parties subsequently stipulated to joint custody, the exercise of which was to be governed by the oral stipulation order entered June 23, 1999, and the Joint Custody Implementation Order signed by the trial court on August 8, 1999. According to the order, Mr. Arbuckle was appointed the child's primary domiciliary parent, and the child was to reside primarily with him *1121 subject generally to the following custodial periods awarded to Mrs. Lovell:

1. Three weekends out of every month;
2. Mother's Day, half of the Christmas holidays, and every other Easter and Thanksgiving holiday.
3. Thirty (30) days during the summer.

Through new counsel, Mrs. Lovell subsequently filed a motion for new trial alleging that among other things she entered into the stipulation set forth above because her former attorney had informed her that her co-habitation with her then "fiancee," Larry Glynn Lovell, would prevent her from obtaining domiciliary parent status. The motion for new trial was denied on August 26, 2002, and no further review of that initial award of custody was made by either party.

The parties were subsequently divorced by judgment rendered on September 23, 1999. A marriage license was issued on September 27, 1999, to Ms. Lovell, and she married Mr. Lovell in Carthage, Texas on October 2, 1999. On October 25, 1999, Mrs. Lovell filed a rule to change custody alleging, among other things, that her marriage to Mr. Lovell and her establishment of a permanent residence in Logansport justified the change. On November 8, 1999, the parties entered into a stipulated judgment whereby the joint custody was modified to designate both Mrs. Lovell and Mr. Arbuckle as co-domiciliary parents and to prohibit either parent from moving the child's residence from DeSoto Parish. The physical custody of the minor child was to be shared as follows:

Mrs. Lovell:

1. During the school year she would have the minor child from Sunday evening until Friday after school let out every week; and,
2. During the summer she would have the minor child every other week.
Mr. Arbuckle:
1. During the school year he would have the minor child every weekend from Friday after school let out until Sunday evening; and,
2. During the summer he would have the minor child every other week.

The parties were to alternate physical custody of the minor child for major holidays.

The consent judgment provided that "neither parent may remove the residence of the minor child from Desoto Parish, Louisiana." There was no specific award of child support although the judgment did provide that the parties had a mutual obligation to provide support for the care and maintenance of the minor child and that each was to provide hospitalization insurance through their employer if such was available to them.

On June 6, 2000, Mrs. Lovell filed a rule to change the visitation set forth in the January 5, 2000, judgment, to establish child support, and for the issuance of an income assignment order to collect the child support. On July 11, 2000, Mr. Arbuckle filed an answer generally denying Mrs. Lovell's allegations and making a reconventional demand that the court revert back to the original custody decree of March 18, 1999, wherein he was designated the domiciliary parent. The court minutes reflect that these matters came for hearing on July 20, 2000, and a stipulated interim order was entered ordering the child's return to Louisiana and ordering the child to attend the Logansport school. The order also granted Mrs. Lovell visitation one weekend a month which seems to imply that her primary residence was to be with her father. This record *1122 reflects that this interim order was never formalized in a judgment.

On July 2, 2001, Mrs. Lovell filed yet another Rule to Change Custody. She alleged that the parties had extra-judicially modified the effective custody award in that the minor child is primarily residing with her mother and, therefore, she should be made the primary domiciliary parent. She also requested that child support be set and that she be allowed to relocate to Carthage, Texas.

After the initial hearing, the court appointed Dr. Mark Vigen as an expert and ordered the parties to be evaluated by him. The hearing on the rule for custody was subsequently tried on February 20, 2002. At the trial, the court considered the testimony of Mrs. Lovell and Dr. Vigen.

Mrs. Lovell testified that sometime after the January 5, 2000, judgment was signed, she took the minor child out of her school and placed her in a Carthage school without prior authorization from the trial court or Mr. Lovell. This action led to the subsequent order of the court in July mandating the return of the child to Louisiana and to her Logansport school. Mrs. Lovell testified that thereafter the minor child resumed attendance at her Logansport school, but continued to live in Carthage contrary to the trial court's order. Mrs. Lovell claimed she filed for the change because it was too tiring to have to drive the minor child 30 miles to school every day and that residing in Carthage also impacted the minor child's ability to participate in after school activities. Mrs. Lovell never testified about having made any extra-judicial agreement with Mr. Arbuckle regarding her maintaining the child's residence in Carthage after the trial court ordered her return to Louisiana. Apart from the travel required to take the child to and from school, Mrs. Lovell gave no other reasons why a move to Carthage was in the best interest of the minor child other than the fact that Mrs. Lovell and Mr. Lovell owned a home there.

Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Justin Hodges v. Amy Hodges
181 So. 3d 700 (Supreme Court of Louisiana, 2015)
Ketchum v. Ketchum
882 So. 2d 631 (Louisiana Court of Appeal, 2004)
Blackburn v. Blackburn
836 So. 2d 1222 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
833 So. 2d 1119, 2002 WL 31758738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arbuckle-v-arbuckle-lactapp-2002.