Bailey v. Bailey

527 So. 2d 1030, 1988 WL 58197
CourtLouisiana Court of Appeal
DecidedJune 1, 1988
Docket19653-CA
StatusPublished
Cited by22 cases

This text of 527 So. 2d 1030 (Bailey v. Bailey) 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
Bailey v. Bailey, 527 So. 2d 1030, 1988 WL 58197 (La. Ct. App. 1988).

Opinion

527 So.2d 1030 (1988)

Donovan Wilbur BAILEY, M.D., Plaintiff-Appellee,
v.
Laurie Myers BAILEY, Defendant-Appellant.

No. 19653-CA.

Court of Appeal of Louisiana, Second Circuit.

June 1, 1988.
Rehearing Denied July 7, 1988.
Writ Denied August 8, 1988.

*1031 Jerry L. Jones, M. Randall Donald, Monroe, for defendant-appellant.

McGlinchey, Stafford, Mintz, Cellini & Lang by James C. Crigler, Jr., Lake Providence, for plaintiff-appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

SEXTON, Judge.

Defendant-appellant, Laurie Bailey appeals the judgment changing the original joint custody decree to provide that the parents retain joint custody of their five-year-old child, but changing the primary residential parent to the father, Donovan Wilbur Bailey, M.D. We reverse in part and amend in part.

FACTS

Donovan Wilbur Bailey, M.D. and Laurie Myers Bailey were divorced on July 24, 1984. By consent judgment, the parties were granted joint custody of their minor child, Donovan Myers Bailey, with Laurie Bailey having primary residential care of the child. She was also awarded $300 per month for child support by consent.

By agreement between her and Dr. Bailey, visitation rights on weekends for Dr. Bailey were expanded to Thursday through Monday of every other weekend.

On August 19, 1986, Dr. Bailey filed a rule for change of custody and reduction in child support. Specifically, Dr. Bailey sought to be named the primary residential custodian. He claimed that because of his remarriage, he could provide a more stable home environment for the child. He additionally alleged that the defendant, Ms. Bailey, attempted to retard the development of a close relationship between the child and himself by refusing to allow the child to visit as provided by the judgment. He finally claimed that he was better equipped to provide food, clothing, and shelter and that he could provide a better family atmosphere for the child.

Ms. Bailey reconvened for sole custody and an increase in child support.

The trial judge granted the change of custody and raised the child support to $400 per month when the child was residing with the mother. Laurie Bailey appeals that judgment. She specifically alleges that the trial court erred in changing the primary residential care to Dr. Bailey as such change is not in the best interest of the child. She argues that the trial court abused its discretion in removing young Donovan from a stable environment in which he had been residing for a period of over three and one-half years and that the trial court abused its discretion in placing too much emphasis on the financial ability of Dr. Bailey. Finally, appellant argues that the trial court erred in failing to increase the award of child support to an amount greater than $400.

The original joint custody decree in this case was uncontested. Where no "considered decree" of custody has been rendered, the test applied in the change of custody action is "best interest of the *1032 child." Murray v. Murray, 521 So.2d 754 (La.App. 2d Cir.1988); Risher v. Risher, 511 So.2d 1220 (La.App. 2d Cir.1987); Dungan v. Dungan, 499 So.2d 149 (La.App. 2d Cir.1986).

Stability of environment is a factor which should be taken into account to determine what is in the best interest of the child. Johnston v. McCullough, 410 So.2d 1105 (La.1982); Everett v. Everett, 433 So.2d 705 (La.1983); Dungan v. Dungan, supra.

Both parties in this case presented evidence relating to the quality of life at their residences. The testimony demonstrated that plaintiff, Dr. Donovan Bailey, is presently married to Diana Bailey. The parties have been married for eighteen months. They reside in Lake Providence, Louisiana with Diana's three children born of a prior marriage for which she is the primary custodial parent during nine months of the school year. Dr. Bailey enjoys an excellent medical practice in Lake Providence and earns approximately $8,000 per month. Diana Bailey works as his nurse and makes $900 per month. Dr. Bailey's current marriage is his third, his marriage to Laurie being his second. He has three children born of his first marriage, two of which have reached the age of majority and the third of which lives with his first wife.

The testimony demonstrated that Laurie Bailey remains single after her divorce from Dr. Bailey but has been married three times, the last marriage being to Dr. Bailey. She presently resides in Bernice, Louisiana, where she is employed as a licensed practical nurse and earns approximately $1,000 per month. She obtained her nursing degree after her divorce from Dr. Bailey. She purchased her own home in Bernice with the help of government subsidies. She presently works the night shift at a local nursing home and makes arrangements for Donovan to stay with her parents, who live nearby, approximately three to four nights per week. Ms. Bailey shares breakfast with her son or picks him up in the morning depending upon how tired she is after her shift. The parents of Laurie are 69 years of age and her father has some heart problems.

Both parties presented expert evidence relating to the custody of Donovan. Dr. Paul Ware, expert for Laurie Bailey and an expert in the field of psychiatry with extensive training in child and adolescent psychiatry, noted that Laurie's work schedule was quite a good one in light of the child's age as the mother could spend evenings with the child and put him to bed, an important aspect of a small child's life. This, he noted, promotes feelings of security. He noted that the child appeared normal and was of medium to high intelligence. Dr. Ware felt that Laurie Bailey was showing signs of stress at his examination which he related to the threatened change in custody. He acknowledged that Laurie had trouble in relationships and tended to be too dependent upon people. Dr. Ware felt that the child should remain with Laurie Bailey because before a child reaches the age of six, he doesn't recommend that the child stay away from the primary home to which he is accustomed for more than a short time. He felt that Laurie Bailey had a good relationship with the child and that changing the primary residence at this time would not be in the best interest of the child. He noted problems with the sleeping arrangements as it was apparent that the child would either sleep with his grandparents or his mother. He made recommendations, however, to Laurie Bailey, who is now attempting to rectify the situation.

Dr. Bailey likewise presented expert evidence, the testimony of Dr. Bobby Stephenson, a licensed psychologist, who evaluated all three parties to the case. He noted problems in the sleeping arrangements as well. He, however, found no major problems in either of the parents' ability to be an effective parent. Dr. Stephenson noted that Laurie Bailey had tendencies to be too dependent and needed greater stability in her life. Dr. Stephenson admitted that a child of Donovan's age needs lots of stability but felt that the stability would be found in Dr. Bailey's home as opposed to Laurie Bailey's home.

Less than favorable testimony was heard concerning both the plaintiff and the defendant in this matter. Dr. Bailey acknowledged, *1033 and certain witnesses testified, that he had been involved in certain altercations with his present wife's ex-husband. Dr. Bailey claimed that the ex-husband instigated the altercations. The testimony also revealed that Dr.

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Bluebook (online)
527 So. 2d 1030, 1988 WL 58197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-bailey-lactapp-1988.