Brown v. Brown

877 So. 2d 1228, 2004 WL 1621178
CourtLouisiana Court of Appeal
DecidedJuly 21, 2004
Docket39,060-CA
StatusPublished
Cited by8 cases

This text of 877 So. 2d 1228 (Brown v. Brown) 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
Brown v. Brown, 877 So. 2d 1228, 2004 WL 1621178 (La. Ct. App. 2004).

Opinion

877 So.2d 1228 (2004)

Gregory BROWN, Plaintiff-Appellee
v.
Mona BROWN, Defendant-Appellant.

No. 39,060-CA.

Court of Appeal of Louisiana, Second Circuit.

July 21, 2004.

*1231 Legal Services of North Louisiana, Inc., by Sophia Dixon Brown, for Appellant.

Law Offices of Fewell-Kitchens, by Richard L. Fewell, Jr., West Monroe, for Appellee.

Before GASKINS, PEATROSS and MOORE, JJ.

MOORE, J.

This expedited appeal comes to us from the Fourth Judicial District Court, Ouachita Parish, the Honorable Jimmy N. Dimos presiding. The appellant, Mona Brown, appeals that part of the divorce judgment awarding domiciliary custody of her four minor children to her former husband, Gregory Brown, giving her visitation rights on alternating weekends and two months each summer. The judgment does not require her to pay child support. Finding no abuse of discretion or legal error, we affirm.

FACTS

Gregory and Mona Lisa Brown married the first time on August 19, 1994 — her first, his second.[1] The couple lived together before getting married. Mona had two children prior to the marriage, Crystal, born June 15, 1990, four years prior to the couple's marriage, and Stephen, born December 9, 1993. Two more children were born during the marriage: Summer, born on November 13, 1995 and Michael, born on July 16, 1998. On April 9, 1998, Greg executed an acknowledgment of paternity for Crystal that was signed by Mona. However Mona testified at trial that Crystal was born 11 months before she met Greg, who was married at the time, and that DNA testing would prove that Greg is not the biological father of Crystal.

The couple divorced the first time in January of 2002. Mona, who was unemployed, gave Greg custody of the children and left the matrimonial domicile. She was ordered to pay child support, but failed to do so. Apparently during this time, she did not see the children for seven months. She eventually moved back into the home with Greg, and the couple subsequently remarried on February 14, 2003. Two weeks later, they separated and have not lived together since the separation.

*1232 On November 13, 2003, Greg filed a petition for divorce seeking primary custody and care of the children under a joint custody plan. He also prayed for exclusive use of the matrimonial domicile and child support.

Dr. E.H. Baker was appointed by the court to evaluate the children and parents. At trial Dr. Baker testified extensively regarding his examination and observations. He recommended that Mr. Brown be given domiciliary custody of the children with Mrs. Brown having appropriate visitation.

After two days of trial, the court granted a judgment of divorce in favor of Greg and awarded him primary custody of the four minor children, including Crystal, even though Mona Brown stated that she could prove the child was not his. The judgment included exclusive use of the family home. He denied Greg's prayer for child support.

In its oral reasons for judgment, the court said it was in the best interest of the children to reside with the father because he had a job and a home (i.e. a trailer belonging to the community but awarded to him by the court). Additionally, the court concluded that the children had closer emotional ties to the father, and that he offered spiritual guidance and moral fitness not offered by the mother.

Against the mother, the court found that the mother was unemployed and had no home. It also found that she "frequents with different men," that she "engaged in sexual activity on the back end of a car at a bar," that she had been involved in "adulterous affairs," that she "came home drunk while she was still married," and that she "never say [sic] any time that she was interested in these children making and attending church services."

Neither side, observed the court, had encouraged communication with the other parent.

Mona filed this appeal alleging several assignments of error.

DISCUSSION

Mona contends that the trial court erred by granting custody of her four children to Greg. The erroneous custody award, she contends, arose from several mistaken evidentiary rulings and the court's bias against her. Additionally, she alleges the court erred as a matter of law by awarding custody of Crystal to Greg using the best interest of the child standard rather than requiring Greg to show substantial harm to the child.

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. Evans v. Lungrin, 97-0541, (La.2/6/98), 708 So.2d 731.

In the case of a considered decree, La. C.C. art. 134 provides the relevant criteria for the evaluation. According to Article 134, the relevant factors to be considered in determining the best interest of the child may include the following:

(1) The love, affection, and other emotional ties between each party and 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 material needs;
(4) The length of time the child has lived in a stable, adequate environment, *1233 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; and
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134, but should decide each case on its own facts in light of those factors. Moreover, the trial court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Rogers v. Stockmon, 34,327 (La.App. 2 Cir. 11/1/00), 780 So.2d 386. Finally, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. McIntosh v. McIntosh, 33,908 (La.App. 2 Cir. 8/31/00), 768 So.2d 219.

Continuity and stability of environment are important factors to consider in determining what is in the child's best interest. Washkow v. Washkow, 33,965 (La.App. 2 Cir. 8/23/00), 765 So.2d 1210; Roberie v. Roberie, 33,168 (La.App. 2 Cir. 12/8/99), 749 So.2d 849.

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Cite This Page — Counsel Stack

Bluebook (online)
877 So. 2d 1228, 2004 WL 1621178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-brown-lactapp-2004.