Breaux v. Breaux

677 So. 2d 1106, 96 La.App. 3 Cir. 214, 1996 La. App. LEXIS 1383, 1996 WL 396555
CourtLouisiana Court of Appeal
DecidedJuly 17, 1996
DocketNo. 96-214
StatusPublished
Cited by5 cases

This text of 677 So. 2d 1106 (Breaux v. Breaux) 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
Breaux v. Breaux, 677 So. 2d 1106, 96 La.App. 3 Cir. 214, 1996 La. App. LEXIS 1383, 1996 WL 396555 (La. Ct. App. 1996).

Opinion

LGREMILLION, Judge.

Dennis Wayne Breaux, through his curator, appeals the trial court’s award of sole custody of their two minor children, Bradley, age fifteen, and Amy, age thirteen, to his former wife, Phyllis Ann Bouillion Breaux. We affirm the trial court’s award of custody.

FACTS

Phyllis and Dennis were married on September 12,1978, in Vermillion Parish, Louisiana and lived together in Gueydan, Louisiana, until they physically separated on April 21, 1995. Phyllis filed a petition for divorce on April 27, 1995. At the hearing held on November 14, 1995, the only contested matter was the custody of the children. It was stipulated that Dennis has been interdicted due to a massive head injury he received in an offshore oil field accident and that his father, Melvin Breaux, was appointed his curator. It was further stipulated by both parties that the curator, if called to the stand, would testify that “Dennis Breaux is fully capable and ^disposed to give both of his children love and affection,, and with his curator (sic) is prepared and able to provide spiritual guidance for his children and continue his children’s education and rearing.” Additionally, it was stipulated that, as a result of his injury, Dennis is incapable of making either day-to-day or major parental decisions for the children. In order to máke those decisions, it was further stipulated that he would need the help and advice of his curator.

The trial court determined that sole custody in favor of Phyllis was in the best interest of the children because Dennis was interdicted and “could not make day-to-day decisions and actually take care of his children, were he given custody, without the help of his father who is the curator.” The trial court also granted the divorce, barred Phyllis from receiving permanent alimony, awarded child support in the amount of $450.00 per month per child until they reach the age of majority, and granted visitation rights to Dennis. The award of custody is the sole issue raised by this appeal.

CUSTODY

“In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” La.Civ.Code art. 131. In the absence of an agreement by the parents concerning the custody of the children, or if the agreement is found not to be in the best interest of the children, “the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.” La.Civ.Code art. 132. Factors to be considered in determining the best interest of the child are provided in La.Civ.Code art 134:

[1108]*1108The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party 13and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other medical needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

Absent a clear showing of an abuse of discretion, an award of custody by a trial court will not be disturbed. Mayeux v. Mayeux, 93-1603 (La.App. 3 Cir. 6/1/94); 640 So.2d 686.

ASSIGNMENT OF ERROR NUMBER ONE

Dennis claims in his first assignment of error that the trial court erred by relying solely on the fact of his mental incapacity and his interdiction in awarding sole custody to Phyllis.

Although not law, the comments to Article 134 reveal that the factors setUforth in the article are provided as a guide and the court is to determine the weight given to each factor. The wording of Article 134 illustrates that the court is not bound to make a mechanical evaluation of all factors listed. For example, the first sentence of Article 134 requires the court to consider all relevant factors when making a custody determination. The second sentence provides that “such factors may include” the twelve factors listed. It is clear that the legislature recognizes that the factors listed may not be relevant to every custody decision. Each case should be decided on its on facts in light of these factors. Indeed, in the case subjudice, the trial court found that because of Dennis’ interdiction, he could not make decisions regarding his children. It would be absurd to require the court to do a mechanical analysis of each factor in Article 134, since there is no analysis it could make that would negate the fact that Dennis is mentally incapable of making important decisions regarding his children.

It is clear from the trial court’s oral reasons that it felt that the interdiction of Dennis was significant enough to warrant sole custody being vested in Phyllis. Counsel for Dennis claims that the evidence is uncontra-dicted that Dennis is capable of exercising his custodial rights over his children with the assistance of his curator. However, the fact remains that it has been determined that Dennis cannot make decisions regarding his own affairs without the assistance of his curator. By awarding joint custody, the trial court would, in effect, be awarding joint custody to the curator, in this instance, Dennis’ father, Melvin Breaux.

Under La.R.S. 9:335, assuming that Phyllis would be the domiciliary parent, she would have the authority to make all decisions affecting the children; however, the curator could require the court to review her decisions. Likewise, under La.R.S. 9:336, joint custody would obligate Phyllis to confer with the curator when ^exercising her decision making authority. The law does not contemplate that joint custody be awarded to a parent and a non-parent, which would be [1109]*1109the effect of a joint custody award in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
677 So. 2d 1106, 96 La.App. 3 Cir. 214, 1996 La. App. LEXIS 1383, 1996 WL 396555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breaux-v-breaux-lactapp-1996.