Borne v. Sutton

892 So. 2d 128, 2004 WL 2997669
CourtLouisiana Court of Appeal
DecidedDecember 28, 2004
DocketNo. 04-CA-826
StatusPublished
Cited by5 cases

This text of 892 So. 2d 128 (Borne v. Sutton) 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
Borne v. Sutton, 892 So. 2d 128, 2004 WL 2997669 (La. Ct. App. 2004).

Opinion

I «SUSAN M. CHEHARDY, Judge.

In this matter, the trial judge granted David Sutton’s request for a reduction in child support for his son, Gage Sutton. On appeal, David Sutton seeks a further reduction in his child support payment to Gage’s mother, Shane Borne. For the following reasons, we affirm the trial court judgment.

On July 1, 1998, Gage Sutton was born to Shane Borne(“Borne”) and David Sutton(“Sutton”). In a consent judgment that was rendered on August 3, 1999 and signed on February 29, 2000, Borne and Sutton agreed to joint custody of Gage with Borne designated as the primary domiciliary parent. Sutton was awarded visitation every other weekend and two evenings every other week. A visitation schedule for holidays and vacations was also established. Sutton was ordered to pay child support of $525.08 per month. Sutton was also ordered to pay 64% of uncovered medical expenses, including co- . payments.

On September 25, 2003, Sutton filed a Rule for Child Custody and to fix a Schedule of Visitation. In his petition, Sutton sought domiciliary status and equal physical custody, i.e. each parent would have the child for six months a year. On October 15, 2003, Borne filed a Rule to Increase Child Support and Modify Visitation and for Contempt. In her petition, Borne alleged that circumstances had | ^changed because Sutton’s income had increased and Gage’s educational and clothing expenses had increased. Borne also averred that Sutton had violated the consent agreement by unilaterally reducing his child support payment to $500.00 instead of $525.08 as ordered in the consent judgment.

On November 17, 2003, the trial judge ordered an evaluation of the parties by a mental health professional with The Center for Family and Youth Services. On January 26, 2004, the parties entered into another consent judgment that maintained Borne as the domiciliary parent and awarded Sutton visitation amounting to 6 days every two weeks. The consent judgment also stated that “the parent who does not have physical custody of the child shall have reasonable and liberal telephone access with[sic] the child.”

On February 4, 2004, Sutton filed a “Rule to Show Cause why Child Support should be Decreased.” In his petition, Sutton alleged that he was granted “shared custody” of Gage and “is therefore entitled to a reduction in child support.” A hearing was set for March 19, 2004.

On February 19, 2004, Borne filed a Rule for Contempt and Rule to Show Cause alleging that Sutton had violated the January 2004 consent judgment by refusing to allow her liberal telephone ac[130]*130cess to Gage while Gage was in Sutton’s custody. Borne sought attorney’s fees and court costs. Borne also sought the right of first refusal to care for Gage if Sutton was unable to do so overnight during his scheduled visitation period. A hearing was set for March 19, 2004.

At the March 19, 2004 hearing, Shane Borne testified and also called Dr. Danny Roussel from The Center for Family and Youth Services, who was appointed to conduct a custody evaluation in this case. Dr. Roussel recommended that Shane Borne remain primary custodial parent with increased visitation to David Sutton. He specifically recommended that Borne remain the domiciliary parent “based on the consistency [that] she has been there since birth.” Dr. 1 ¿Roussel encouraged increasing Sutton’s visitation to 6 days out of every 14 days but discouraged his desired 50/50 custody sharing or granting co-domiciliary status.

Dr. Roussel also recommended that each parent should have the right of first refusal to care for Gage if the custodial parent will be away from Gage overnight during their scheduled visitation. He also stated that Gage has been diagnosed with an oppositional disorder so Gage needs a “very very structured” environment. Dr. Roussel stated that continued strife between his parents creates an oppositional culture for Gage, which is not positive for him. Dr. Roussel stated, in fact, that Gage is aware of the conflict and stated that he wants “the grown-ups in his life to stop.” Dr. Roussel also testified that it is important to maintain stability in Gage’s life. - Since Gage is succeeding in the current educational environment, Dr. Roussel recommended that Gage remain enrolled at his current private school, which he has attended for three years.

Shane Borne testified that she is a dental assistant who makes $13.00 per hour. She works less than 40 hours a week and does not receive overtime pay. She has no other source of income. She presented her 2003 W-2s and 2003 income tax return that showed her income as $18,610.00. She lives with her parents and does not pay rent or utilities. Borne presented documentation of the loan that she incurred to pay Gage’s school tuition for 2003-2004, which was $3090.00. Borne also documented the cost of ten weeks of summer camp, which totaled $600.00. She also testified that she pays for before and after-school care, school uniforms, school supplies, lunch money, extracurricular activities, clothing, and food. Further, Borne stated that she routinely incurs extraordinary medical expenses for Gage, who has been diagnosed with Attention Deficit Disorder and porphyria, a blood disease.

|fiDavid Sutton testified that he thought the latest custody arrangement gave him visitation with Gage for “probably eight” days out of every 14 days. He stated that he works for All-Star Electric and is paid $16.00 per hour. He said that he is not guaranteed overtime but he will receive overtime pay if he works more than 40 hours in one week. He testified that he does not have any other sources of income.

Sutton testified that he left his job at Graham Packaging, which paid $18.22 per hour, so he could spend more time with Gage. On cross examination, Sutton admitted, when he was asked if illness caused him to leave Graham Packaging, that he “would probably say yeah.” He stated that he was “goofing up things” and his bosses had “meetings” with him immediately before he decided to leave Graham Packaging. He further admitted that his gross income for 2003 from Graham Packaging was $34,458.44. He also admitted that he worked part-time as a mechanic while he lived with Borne to help her pay bills.

[131]*131Sutton acknowledged that he got married on January 31, 2004. He and his wife, who works outside of the home, reside together and share expenses.

David Sutton also testified that, in his opinion, his son should not attend private school because St. Charles Parish public schools, which he attended for four years, are “very adequate.” He admitted on cross examination that he attended and graduated from private school. Sutton testified that he has a school-aged step-son and his wife is pregnant. He 'opined that sending Gage to public school would be better because “we wouldn’t be able to afford to send all of them to private school.”

Sutton also admitted that, on the first weekend after the January 2004 consent judgment that instituted the new visitation schedule, he got married, went on his honeymoon, and left Gage with his mother and his brother. Carol Sutton, David’s mother, testified that she did not prevent Borne from speaking to Gage on the telephone during that time. She admitted that her other son was visiting that | (¡weekend, and if he refused to allow Borne to speak with Gage that she “don’t know anything about it.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Justin Hodges v. Amy Hodges
181 So. 3d 700 (Supreme Court of Louisiana, 2015)
State Department of Children & Family Services ex rel. J.C. v. Charles
102 So. 3d 179 (Louisiana Court of Appeal, 2012)
Broussard v. Rogers
54 So. 3d 826 (Louisiana Court of Appeal, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
892 So. 2d 128, 2004 WL 2997669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borne-v-sutton-lactapp-2004.