Barnes v. Cason

637 So. 2d 607, 1994 WL 172188
CourtLouisiana Court of Appeal
DecidedMay 4, 1994
Docket25808-CA
StatusPublished
Cited by24 cases

This text of 637 So. 2d 607 (Barnes v. Cason) 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
Barnes v. Cason, 637 So. 2d 607, 1994 WL 172188 (La. Ct. App. 1994).

Opinion

637 So.2d 607 (1994)

Lane Keith BARNES, Plaintiff and Defendant-in-rule and Appellant,
v.
Vivian Diane CASON, Defendant and Plaintiff-in-rule and Appellee.

No. 25808-CA.

Court of Appeal of Louisiana, Second Circuit.

May 4, 1994.

*608 Rankin, Yeldell, Herring & Katz by Charles E. Herring, Jr., Bastrop, for appellant.

Jack F. Owens, Jr., Harrisonburg, for appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff, Lane Keith Barnes, appeals from a trial court judgment granting joint custody of the parties' three children and designating the defendant, Vivian Diane Cason, as the primary domiciliary parent. We reverse the trial court judgment, award primary domiciliary parent status to the plaintiff, and remand for formulation of a joint custody implementation plan between these parties.

FACTS

The plaintiff and defendant lived together for several years before their marriage. During that time, two children were born. Karolyn Jean Barnes was born on October 3, *609 1987, and Travis Roy Barnes, a/k/a Jonathan Stein Cason, was born on July 20, 1989.[1]

The parties married on December 13, 1989. The defendant left the plaintiff in January, 1990, taking the children with her. She obtained a divorce in Arkansas in 1990. The divorce judgment stated that no children were born of the marriage and made no provision for the custody of Karolyn and Travis.

On December 11, 1990, after their divorce, the defendant and the two children returned to live with the plaintiff in Concordia Parish. The parties lived together until July 26, 1991, when the defendant again left with the children. The plaintiff was not aware that when the defendant left, she was pregnant with their third child.

On October 4, 1991, pursuant to a petition filed by the plaintiff in Concordia Parish, a joint custody decree was entered. The judgment named the defendant as the primary domiciliary parent and established a visitation schedule for the two children. The custody plan did not include the third child who had not yet been born.

On April 2, 1992, the defendant gave birth to a third child, Caitlyn Danielle Cason. The plaintiff is also the father of this child.

In early September, 1992, the defendant arrived at the plaintiff's home at 2 a.m. with the two older children and left them with him. The children were tired, dirty, thin, and not well cared for. The defendant brought no clothing for the children. The baby, Caitlyn, was left with the defendant's mother.

On January 11, 1993, the plaintiff filed suit to have the joint custody decree from Concordia made executory in Morehouse Parish, where he was then living. He also filed a rule to change the joint custody decree. The plaintiff was joined in his petition for change of custody by his mother, Carolyn Barnes, and by the defendant's mother, Jean Cason. The petition sought to have sole custody of the three children awarded to the plaintiff, or, in the alternative, to award joint custody, with the plaintiff as the primary domiciliary parent. In the further alternative, the petitioners sought to have the court grant sole custody of the two older children to the paternal grandmother, Carolyn Barnes, and custody of Caitlyn to her maternal grandmother, Jean Cason.

In the petition seeking a change of custody, numerous allegations were made regarding the unfitness of the defendant and the reasons why a change of custody would be in the best interest of the children. The following allegations were made. The plaintiff had physical custody of the two older children for seven months prior to filing the petition for change of custody while Jean Cason had physical custody of Caitlyn from September through December, 1992. In December, the defendant took the baby back into her physical custody. The defendant had a habit of disappearing and leaving the children with the plaintiff. The defendant had an unstable lifestyle and had lived with several men to whom she was not married, when she had the children in her physical custody. One of these men was subsequently convicted of drug charges. The defendant neglected the physical needs of the children and physically abused them. The defendant is emotionally unstable, has not maintained steady employment, and has sometimes concealed the whereabouts of herself and the children. The plaintiff also alleged that the defendant once threatened to give the youngest child, Caitlyn, to a boyfriend and then commit suicide on her twenty-first birthday.

A hearing on the rule for change of custody was held on March 22, 1993. Following the hearing the trial court handed down written reasons for judgment. The trial court found that "both parents have made some important mistakes" but that both were fit to have custody of the children. The court denied the request for custody by the grandmothers and found that the presumption in favor of joint custody had not been rebutted.

The court found that even though the defendant had experienced some difficulties in *610 her past, at the present time she had remarried and was living in a stable environment and was employed. On this basis, the trial court awarded the parents joint custody of all three children and named the defendant as the primary domiciliary parent. A judgment to this effect was signed and filed on July 26, 1993.

The plaintiff appealed the trial court judgment. He argues that in awarding custody, the trial court failed to consider the factors listed under LSA-C.C. Art. 131. He also contends that the trial court based its opinion on a misunderstanding of the facts and consideration of inappropriate factors. In essence, the plaintiff argues that the judgment of the trial court granting joint custody and naming the defendant as the primary domiciliary parent is manifestly erroneous and clearly wrong and therefore not entitled to deference by this court on appeal.

LEGAL PRINCIPLES

Custody of children after divorce is regulated by LSA-C.C. Art. 134 and, by reference, LSA-C.C. Art. 131.[2] LSA-C.C. Art. 131(C) provides that there shall be a rebuttable presumption that joint custody is in the best interest of a minor child. See also Yelverton v. Yelverton, 621 So.2d 36 (La. App.2d Cir.1993). LSA-C.C. Art. 131(C)(2) provides that the presumption in favor of joint custody may be rebutted by showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to several factors listed in the statute. Yelverton v. Yelverton, supra.

Those factors include:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.

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Cite This Page — Counsel Stack

Bluebook (online)
637 So. 2d 607, 1994 WL 172188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-cason-lactapp-1994.