Bergeron v. Bergeron

6 So. 3d 948, 2009 La. App. LEXIS 403, 2009 WL 691970
CourtLouisiana Court of Appeal
DecidedMarch 18, 2009
Docket44,210-CA
StatusPublished
Cited by13 cases

This text of 6 So. 3d 948 (Bergeron v. Bergeron) 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
Bergeron v. Bergeron, 6 So. 3d 948, 2009 La. App. LEXIS 403, 2009 WL 691970 (La. Ct. App. 2009).

Opinions

GASKINS, J.

_JjThe plaintiff, Janie Catherine Raley Bergeron, appealed from a trial court judgment which set permanent child support, modified the prior joint custody implementation plan, and reversed the plaintiffs decision to place the parties’ two children in a different school. The defendant, James Ronald Bergeron, Jr., answered the appeal, claiming that the trial court improperly ruled that his final child support obligation would be increased retroactively to May 21, 2007, the date of filing of the rule for an increase, rather than the date of the July 2008 trial court judgment. For the following reasons, we affirm in part, and amend in part, the trial court judgment.

FACTS

The plaintiff and defendant were married in 1992. They have two daughters, Ashley born in 1998, and Audrey born in 2000. In July 2004, the plaintiff filed for divorce. In September 2004, an interim judgment was rendered in open court awarding joint custody and ordering the defendant to pay $1,380.00 per month in child support.

In November 2004, a joint custody implementation plan was approved by the trial court and filed into the record. The plan specified that the plaintiff is the domiciliary parent. The plan included a complicated system of shared custody whereby the defendant had the children from Friday afternoon to Tuesday morning; the plaintiff had them from Tuesday afternoon until the following Monday morning. The defendant then picked the children up from school on Monday afternoon and kept them until Wednesday. The plaintiff had them from Wednesday afternoon until Friday morning. The plan would then repeat. Under this plan, the plaintiff had the | .¿children 57 percent of the time and the defendant had them 43 percent of the time.

A judgment of divorce was entered on February 16, 2005. The plaintiff reverted to the use of her maiden name.

On May 21, 2007, Ms. Raley filed a rule to modify the child custody order and to set final child support. She contended that material changes in circumstances required a modification of the custody order. She argued that the prior custody arrangement was disruptive for the children. She also made numerous allegations claiming that Mr. Bergeron did not properly care for the children. Ms. Raley sought to have the children live with her during the school year, with visitation for the father every other weekend. According to Ms. Raley, Mr. Bergeron had taken a job in the construction industry which required him to be in Las Vegas, Nevada, much of the time.

The children attended St. Joseph School. Ms. Raley had taken measures to switch the girls to First Baptist Church School, contending it had better programs and resources. On April 22, 2008, Mr. Berger-on filed a rule to show cause why an order should not be entered prohibiting Ms. Ra-ley from enrolling the children in First Baptist Church School.

The rules were heard by the trial court in May and June 2008. On July 29, 2008, [951]*951the trial court signed and filed a judgment specifying that the parties are to continue with joint custody, subject to the amended joint custody implementation plan executed with the judgment. In the amended joint custody implementation plan, the court ordered that the mother |scontinue as domiciliary parent, but the children were to stay with the mother one week and the father the next week.

Mr. Bergeron was ordered to pay final child support in the amount of $1,126.08, retroactive to May 21, 2007, and subject to credit for sums paid. The trial court overruled the decision of Ms. Raley to send the children to First Baptist Church School and ordered that they be readmitted to St. Joseph School.

In the reasons for judgment, the trial court discussed the history of child support prior to the instant rale to set final support. The court noted that the prior order specified that Ms. Raley had the children 57 percent of the time and Mr. Bergeron had them 43 percent of the time. In the prior order, interim child support had been set at $1,380.00 and the parties had agreed that they were not precluded from having the court determine the correct amount of permanent child support at a later date. The issue of final support had been discussed between the parties and the court noted that letters between the parties’ counsel showed that the trial court was considering setting the final child support award at $750.00 per month. Since late in 2004, Mr. Bergeron had paid and Ms. Ra-ley had accepted $750.00 per month in interim child support. The court found that the parties agreed that $750.00 per month was the amount of monthly child support due until further proceedings.

The evidence showed that Mr. Bergeron had a better job and now earns a higher income. The court found that Worksheet B under La. R.S. 9:315.9 and 9:315.20 was applicable. The trial court set the final child ^support obligation due from Mr. Bergeron at $1,126.08, retroactive to May 21, 2007, the date of the filing of the instant rule.

The court considered the mental health evaluations that were conducted on the parties and concluded that both were good parents and that both agreed that the former custody implementation plan was not in the best interest of the children. The court found that it would be better for the children for the parties to have shared custody, with the children spending alternating weeks with each parent.

The court determined that the children should remain at St. Joseph School. It noted that Ms. Raley had not consulted with Mr. Bergeron in her plan to switch the children to a new school and that there was no showing that a hew school would provide more for the children at this time.

Ms. Raley appealed the trial court judgment and Mr. Bergeron answered the appeal.

COMPROMISE OF CHILD SUPPORT OBLIGATION

Ms. Raley argues that the trial court erred in concluding that the parties somehow compromised the interim child support obligation of Mr. Bergeron. Ms. Ra-ley contends that the trial court was wrongly persuaded to believe that the parties agreed that the interim child support amount would be $750.00 per month. She points to numerous letters between the parties’ counsel showing that they were not in agreement as to the child support amount. This argument is without merit.

Legal Principles

A trial court’s finding of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or [952]*952manifestly erroneous. Under the manifest error standard of review, the only issue to be resolved by the appellate court is whether the trial court’s conclusion was a reasonable one. Heflin v. Heflin, 44,155 (La.App. 2d Cir. 1/14/09), 1 So.3d 820.

In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Mizell v. Mizell, 37,004 (La.App. 2d Cir.3/7/03), 839 So.2d 1222.

The general rule in Louisiana is that an alimony or child support judgment remains in effect until the party liable has it modified or terminated by the court. See Halcomb v. Halcomb, 352 So.2d 1013 (La.1977); Mizell v. Mizell, supra. The policy reason behind this rule is obvious.

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Bergeron v. Bergeron
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Bluebook (online)
6 So. 3d 948, 2009 La. App. LEXIS 403, 2009 WL 691970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bergeron-v-bergeron-lactapp-2009.