Brazan v. Brazan

638 So. 2d 1176, 1994 WL 278425
CourtLouisiana Court of Appeal
DecidedJune 24, 1994
Docket93 CA 2369
StatusPublished
Cited by25 cases

This text of 638 So. 2d 1176 (Brazan v. Brazan) 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
Brazan v. Brazan, 638 So. 2d 1176, 1994 WL 278425 (La. Ct. App. 1994).

Opinion

638 So.2d 1176 (1994)

Deborah BRAZAN
v.
Richard Joseph BRAZAN, Jr.

No. 93 CA 2369.

Court of Appeal of Louisiana, First Circuit.

June 24, 1994.

*1177 Michael J. Bourquard, New Orleans, for plaintiff-appellant Deborah Brazan.

Daniel J. Nail, Napoleonville, for defendant-appellee Richard Joseph Brazan, Jr.

Before CARTER, GONZALES, and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal from a judgment awarding alimony pendente lite, child support, and joint custody.

*1178 FACTS

On January 21, 1993, plaintiff, Deborah Brazan, filed a petition for divorce in accordance with LSA-C.C. art. 102. The petition alleged that, on June 6, 1990, she and her husband, Richard Joseph Brazan, Jr., were married and that, on December 15, 1990, a child, Richard Joseph Brazan, IV, was born of the marriage. In the petition for divorce, Deborah requested alimony pendente lite, child support, and temporary custody of the minor child.

On January 21, 1993, the trial court awarded temporary custody to Deborah. On April 13, 1993, an interim judgment was issued, ordering that, pending the resolution of the issues, child support be set at $509.00 per month, with an additional direct payment of $240.00 per month for child care services and an additional $120.00 per month for hospitalization. Alimony pendente lite was set at $200.00 per month.

On April 26, 1993, a final judgment was rendered, awarding joint custody, with equal sharing of time, to be allocated in seven-day periods or in other equal amounts as agreed by the parties. The judgment further awarded $314.07 per month for child support and $300.00 per month for alimony pendente lite. On July 16, 1993, a judgment was signed in accordance with the ruling.

Deborah appealed from the judgment, assigning the following specifications of error:

1. The award of $300.00 alimony pendente lite was contrary to the law and evidence.
2. The award of 50/50 equal sharing of time of this two-year-old child was contrary to the law and evidence.
3. The calculation reducing the defendant-appellee's child support payments was contrary to the law and evidence.

JOINT CUSTODY

Deborah contends that the trial court abused its discretion in awarding joint custody with equal sharing of time.

LSA-C.C. Art. 131, formerly art. 146, provides that the standard to be applied by the trial court in determining custody of a child of a dissolved marriage is that of the "best interest of the child." Turner v. Turner, 455 So.2d 1374, 1378 (La.1984). In determining the best interest of the child, the court is guided by the factors enumerated in LSA-C.C. art. 131C(2),[1] which, at all times pertinent hereto, provided:

There is a rebuttable presumption that joint custody is in the best interest of a minor child.
(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(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.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
*1179 (j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. However, the classification of persons according to race is neither relevant nor permissible.

Although joint custody means a physical sharing of the child in addition to both parents' participation in decisions affecting the child's life, it does not necessarily mean a fifty-fifty sharing of time. Each case will depend on the child's age, the parents' situations, and other factors relevant to a particular child custody dispute. Swope v. Swope, 521 So.2d 656, 659 (La.App. 1st Cir.1988); Pevey v. Pevey, 484 So.2d 959, 962 (La.App. 1st Cir.1986). Although divided physical custody is an option in some circumstances, the courts have been willing to "split the child" only when the parents live a short distance from one another and the child is not required to attend different schools. Swope v. Swope, 521 So.2d at 659, citing Meylian v. Meylian, 478 So.2d 218 (La.App. 3rd Cir. 1985); Brooks v. Brooks, 469 So.2d 398 (La. App. 3rd Cir.1985); Peyton v. Peyton, 457 So.2d 321 (La.App. 2nd Cir.1984); Duhe v. Duhe, 451 So.2d 1198 (La.App. 5th Cir.1984); Black v. Black, 460 So.2d 1175 (La.App. 2nd Cir.1984), writ denied, 463 So.2d 1318 (La. 1985); Slack v. Slack, 458 So.2d 177 (La.App. 5th Cir.1984).

A trial court has much discretion in awarding and implementing child custody awards. Stephenson v. Stephenson, 404 So.2d 963, 966 (La.1981). An appellate court will not set aside a trial court's custody award in the absence of an abuse of that discretion. See Swope v. Swope, 521 So.2d at 659.

Richard Brazan testified that he had helped care for his son since his birth and enjoyed caring for him. Richard stated that he missed taking care of his son and spending time with him. However, Richard stated that, when he does get to visit his son, they spend very much time together and do fun things.

Richard indicated that, if he obtained custody of his son, the child would remain in the same day care center as he currently attends. Richard stated that he would be available to pick up his son from the day care center on most occasions. However, Richard acknowledged that, as an attorney, he occasionally is required to work late, but that, in the event he obtained equal custody, he would make arrangements for someone to pick up his son at the day care center on those rare occasions.

Richard testified that he was living in Vacherie at the time of trial, but that he would move to Baton Rouge if he obtained joint custody of his son. Richard stated that if he received custody of his son for every other weekend only, he would lease a one-bedroom apartment, but that if he received joint custody with equal sharing of time, he would lease a two-bedroom apartment.

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Bluebook (online)
638 So. 2d 1176, 1994 WL 278425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brazan-v-brazan-lactapp-1994.