Bonnecarrere v. Bonnecarrere

37 So. 3d 1038, 2009 La.App. 1 Cir. 1647, 2010 La. App. LEXIS 529, 2010 WL 1498273
CourtLouisiana Court of Appeal
DecidedApril 14, 2010
Docket2009 CU 1647
StatusPublished
Cited by12 cases

This text of 37 So. 3d 1038 (Bonnecarrere v. Bonnecarrere) 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
Bonnecarrere v. Bonnecarrere, 37 So. 3d 1038, 2009 La.App. 1 Cir. 1647, 2010 La. App. LEXIS 529, 2010 WL 1498273 (La. Ct. App. 2010).

Opinions

GUIDRY, J.

Pefendant, John P. Bonnecarrere, III, appeals from a judgment of the trial court, maintaining joint custody and visitation as detailed in a prior judgment, except that beginning in calendar year 2011, the geographic restriction as to visitation is to be lifted and John will be granted additional summertime visitation, reducing his child support obligation, and ordering him to pay 82.2 percent of his children’s uncovered medical, dental, vision, and orthodontic expenses. Plaintiff, Amanda Ellzey Bonnecarrere, answers the appeal, contesting the trial court’s reduction in child support. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Amanda and John were married on February 3, 2002, in Vernon Parish, Louisiana and later established a matrimonial domicile in Tangipahoa Parish, Louisiana. Two children, Victoria and Abigail, were born of the marriage on January 11, 2005, and March 23, 2007, respectively.

On January 25, 2008, Amanda filed for divorce under La. C.C. art. 102. In her petition, Amanda requested that the court order joint custody of the two children, with Amanda being designated as the domiciliary parent and with John being granted liberal visitation at his parents’ home in Pearl River, Louisiana. She also [1042]*1042requested that John pay child support, that John pay for his proportionate share of medical and dental expenses, that the children remain on John’s health insurance, and that a temporary restraining order be issued.

On July 9, 2008, John filed a motion and order for visitation, stating that he was presently serving in the armed forces in Iraq, but that he was scheduled to return to the country between July 18 and 25. Accordingly, he requested an order from the court insuring that he would have visitation during this period, and additionally requested that a hearing be set for the purpose of setting forth a permanent visitation schedule with the children. The trial court issued an order permitting the July 2008 visitation and set the matter of permanent visitation for a hearing on July 28, 2008.

At the conclusion of the July 28, 2008 hearing, a stipulation as to visitation was entered into the record. Thereafter, in a judgment dated September 12, 2008, which memorialized the parties’ stipulations, the trial court granted the parties joint custody of the two children, with Amanda being designated as the domiciliary parent, subject to visitation in favor of John. The judgment outlined specific holiday visitation on behalf of John for 2008 and also provided for John to have additional reasonable visitation to be agreed upon by the parties. Additionally, the judgment provided that John was to have the children for two weeks in the summer. However, John was ordered not to remove the children from the jurisdiction of the court or the State of Louisiana.

With regard to child support, the September 12, 2008 judgment ordered John to pay $2043.00 per month, together with 91 percent of the children’s uncovered medical and dental expenses through August 2008, and $1413.00 per month, together with 80 percent of the children’s uncovered medical, dental, vision, and orthodontic expenses beginning September 1, 2008. This judgment was signed by the parties and by the trial judge.

On October 17, 2008, John filed a motion and order for reduction in child support and to set a visitation schedule. John asserted that he was now a resident of Pipestone, Minnesota, that his income had been altered considerably by the circumstances of his present employment, and that the child care expenses for his children had decreased. Because of these changes in circumstances, John requested a reduction in child support and also a modification of the visitation schedule so as to ensure that he has frequent and continuing contact with his minor children.

Thereafter, Amanda filed a rule to show cause for a temporary restraining order and injunctions and rule to show cause for restricted and supervised visitation.

Following a hearing on these issues, the trial court rendered and signed a judgment on March 30, 2009, maintaining joint custody of the children, with Amanda continuing to be designated as the primary domiciliary parent, subject to visitation in favor of John. The court maintained the visitation schedule as provided in the September 12, 2008 judgment, including the restriction that John could not remove the children from the jurisdiction of the court or the State of Louisiana. However, beginning in 2011, the judgment removes the geographic restriction and grants John additional summertime visitation for either the entire month of June or July at John’s election. After 2011, the judgment grants John six weeks of summertime visitation at his election between June 1 and August 1. Further, with regard to child support, the trial court reduced John’s support obligation to $877.07 per month and ordered [1043]*1043John to pay 82.2 percent of the children’s uncovered medical, dental, vision, and orthodontic expenses.

Amanda filed a motion for new trial as to the reduction in child support, which was denied. John now appeals from the March 30, 2009 judgment, asserting that the trial court erred: (1) in allowing him only limited in-state visitation; (2) in not ordering Amanda to install a web camera, at his expense, so that he could maintain video contact between he and his children between periods of physical custody; and (3) in not limiting his obligation for his proportionate share of medical expenses to “extraordinary” medical expenses. Additionally, Amanda answers the appeal, asserting that the trial court erred in reducing John’s child support obligation from $1,413.00 to $877.07.

DISCUSSION

“Visitation”

As stated previously, John and Amanda enjoy joint custody of their two children. The trial court and the parties refer to John’s time with the children as visitation. “Visitation,” as provided for in La. C.C. art. 136, however, applies only when a parent does not have custody or joint custody. The time that parents with joint legal custody share with their child is more properly described as a physical custody allocation of a joint custody plan. La. R.S. 9:335; Cedotal v. Cedotal, 05-1524, p. 5 (La.App. 1st Cir.11/4/05), 927 So.2d 433, 436. Accordingly, because John sought modification of the allocation of physical custody in the September 12, 2008 judgment, this case must be considered as a modification of custody. See Cedotal, 05-1524 at pp. 5-6, 927 So.2d at 436; Jackson v. Harris, 05-604, pp. 4-5 (La.App. 3rd Cir.12/30/05), 918 So.2d 1163, 1166; Lee v. Lee, 34,025, p. 4 (La.App. 2nd Cir.8/25/00), 766 So.2d 723, 725-726, writ denied, 00-2680 (La.11/13/00), 774 So.2d 150.

The burden of proof on a party seeking to modify a prior permanent custody award is dependent on the nature of the underlying custody award. Custody awards are commonly made in two types of decisions. The first is through a stipulated judgment, such as when the parties consent to a custodial arrangement. The second is through a considered decree, wherein the trial court receives evidence of parental fitness to exercise care, custody, and control of a child. Shaffer v. Shaffer, 00-1251, p. 3 (La.App. 1st Cir.9/13/00), 808 So.2d 354, 356, writ denied, 00-2838 (La.11/13/00), 774 So.2d 151.

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Cite This Page — Counsel Stack

Bluebook (online)
37 So. 3d 1038, 2009 La.App. 1 Cir. 1647, 2010 La. App. LEXIS 529, 2010 WL 1498273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonnecarrere-v-bonnecarrere-lactapp-2010.