Bennett v. Bennett

657 So. 2d 413, 1995 WL 323180
CourtLouisiana Court of Appeal
DecidedMay 31, 1995
Docket95-152
StatusPublished
Cited by9 cases

This text of 657 So. 2d 413 (Bennett v. Bennett) 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
Bennett v. Bennett, 657 So. 2d 413, 1995 WL 323180 (La. Ct. App. 1995).

Opinion

657 So.2d 413 (1995)

George Alton BENNETT, Jr., Plaintiff-Appellant,
v.
Angela Brewer BENNETT, Defendant-Appellee.

No. 95-152.

Court of Appeal of Louisiana, Third Circuit.

May 31, 1995.

*414 Jimmy Roy Faircloth, Jr., Pineville, for George Alton Bennett, Jr.

Charles Gregory Gravel, Michael W. Shannon, Alexandria, for Angela Brewer Bennett.

Before KNOLL, SULLIVAN and BROUILLETTE[*], JJ.

HAROLD J. BROUILLETTE, Judge Pro Tem.

George Bennett appeals a trial court judgment on the issues of custody, visitation and child support. George and Angela Bennett were married in 1990 and divorced on February 8, 1993. The judgment of divorce incorporated the provisions of an earlier consent judgment which provided, inter alia, for (a) joint custody of the two children of the marriage; (b) Angela Bennett to be domiciliary parent subject to visitation privileges in favor of George Bennett; and (c) George Bennett to pay $500 per month child support.

About a year later George Bennett filed a petition seeking provisional domiciliary custody based upon allegations of neglect by Angela Bennett. Following a hearing on February 24, 1994, the court denied the petition for domiciliary custody but modified the earlier decree to grant specific visitation on alternating weekends and holidays and additionally, reducing support to $300 per month.

*415 Shortly thereafter, on March 18, 1994, George Bennett petitioned the court to order Angela Bennett to undergo a mental health examination and drug screens and to render a final decree of custody. On the basis of affidavit evidence attached to the motion, the court set a hearing for April 4, 1994 and ordered Angela Bennett to undergo a mental health examination and drug screen prior to the hearing. When the motion was called for hearing on that date, Angela Bennett had undergone neither a mental health examination nor the drug screen. Without presenting evidence, the parties entered into a stipulated judgment on that day which was signed on April 25, 1994 under the terms of which George Bennett was made domiciliary custodian and Angela Bennett's visitation was decreed to be as follows:

A. During the six month period immediately following rendition of this judgment, Ms. Bennett's visitation of the minor children and the conditions thereof shall be as follows:
1. Ms. Bennett may retrieve and return the children directly to day care anytime between the hours of 8:00 a.m. and 5:00 p.m. any Tuesday, Wednesday and Thursday;
2. While exercising her visitation, Ms. Bennett must remain in the presence of the children;
3. Ms. Bennett shall produce to the Court a certificate evidencing her completion of whatever program is recommended by her treating mental health provider, which certificate shall be placed into and become a part of the record of this proceeding; and
4. Ms. Bennett shall submit to monthly drug screens, the results of which shall be provided to the Court and shall be placed into and become a part of the record of this proceeding.

The judgment also provided that upon Angela Bennett's compliance with the recited requirements for a period of six months, the visitation would be changed to the customary alternating weekends, holidays and six weeks in the summer. The judgment delineated the particulars of the visitation and additionally, ordered Angela Bennett to pay $100 per month child support.

On October 13, 1994, George Bennett filed a rule petitioning the court to award him full custody; to again order Angela Bennett to undergo drug screens; and to adjudicate her to be in contempt for failure to comply with the requirements of the judgment of April 25, 1994. She answered the rule denying most of the allegations and petitioning the court to remove the restrictions on her visitation. Following a hearing on November 7, 1994, the court: (1) held that Angela Bennett was not guilty of contempt of court; (2) denied the request of George Bennett for sole custody, thereby continuing joint custody; (3) increased the visitation privileges in favor of Angela Bennett by adding alternating weekends; and (4) reduced her child support obligation from $100 to $50 per month.

Formal judgment was signed on January 11, 1995 and George Bennett has appealed each of those four rulings.

CUSTODY AND VISITATION

The trial court's refusal to grant sole custody to George Bennett, thereby continuing joint custody, and the increase in visitation privileges in favor of Angela Bennett are so closely related that they should be discussed together.

Prior to January 1, 1994, custody was governed in part by La.Civ.Code art. 131 as then worded. It was amended by Act 261 of 1993 which became effective on January 1, 1994. Section 8 of that act enacted La.R.S. 9:387, which provides that the act "does not apply to actions for separation from bed and board or divorce or actions for incidental relief commenced before January 1, 1994, or to reconventional demands thereto, whenever filed. Such actions are to be governed by the law in effect prior to January 1, 1994." This litigation commenced prior to January 1, 1994 and is therefore governed by the law as it existed prior to that date.[1]

Prior to January 1, 1994, subsection A(1) of Civil Code art. 131 established a "preference" *416 of joint custody when both parents claimed provisional custody. Subsection C established a rebuttable presumption that joint custody is in the best interest of a minor child. Subsection D provided that joint custody "shall mean the parents shall, to the extent feasible, share the physical custody of the children of the marriage," and further that "[p]hysical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents."[2]

The determination of whether joint custody should be continued is the threshold issue. If it is, visitation must meet the requirements of the former Article 131 D recited above. Conversely, if George Bennett is granted sole custody, those mandates do not apply.

The trial judge presumably found that the evidence presented in support of the motion failed to rebut the presumption that joint custody is in the best interest of the children. In making that determination, he was required to consider evidence with respect to all of the factors delineated (a) through (l) in the former Article 131C(2). Such a determination clearly required findings of fact based upon the testimony of the witnesses. He specifically rejected George Bennett's contention that the children were in danger when they were with their mother. Additionally, he found that the children loved their mother very much; enjoyed being with her; and that it would be in their best interest to spend more time with her, including overnight visitation. While reasonable people may disagree on what the evidence established, a reviewing court must give great weight to the factual conclusions of the trier of fact; inferences of fact should not be disturbed where there is conflicting testimony. Suire v. Suire, 532 So.2d 201 (La.App. 3 Cir.1988); Till v. Delta School of Commerce, 487 So.2d 180 (La.App. 3 Cir.1986); Rosell v. ESCO, 549 So.2d 840 (La.1989).

Counsel for George Bennett cites four cases supporting the statement that this court has issued orders of sole custody on appropriate facts. See Greene v.

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Cite This Page — Counsel Stack

Bluebook (online)
657 So. 2d 413, 1995 WL 323180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-bennett-lactapp-1995.