Chance v. Chance

784 So. 2d 817, 2001 WL 460793
CourtLouisiana Court of Appeal
DecidedMay 2, 2001
Docket00-1658
StatusPublished
Cited by2 cases

This text of 784 So. 2d 817 (Chance v. Chance) 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
Chance v. Chance, 784 So. 2d 817, 2001 WL 460793 (La. Ct. App. 2001).

Opinion

784 So.2d 817 (2001)

Leslie Therese Fried CHANCE
v.
David Gordon CHANCE.

No. 00-1658.

Court of Appeal of Louisiana, Third Circuit.

May 2, 2001.

*818 Jacques B. Pucheu, Jr., Eunice, LA, Attorney for Plaintiff/Appellee Leslie Therese Fried Chance.

L. Kimberly Morrow, Opelousas, LA, Attorney for Intervenors Elspeth and Will Chance.

Helen Scott Johnson, Lafayette, LA, Attorney for Defendant/Appellant David Gordon Chance.

Court composed of DOUCET, Chief Judge, THIBODEAUX, and SULLIVAN, Judges.

DOUCET, Chief Judge.

David Gordon Chance appeals the trial court's custody order and its denial of his motion for new trial/reconsideration.

The parties married in 1977. At that time, David Chance adopted Leslie Chance's two children from a previous marriage, Sara and Lance. Subsequently, *819 they had two children of their own, Elspeth, born in 1986, and William, born in 1989. The parties separated in March 1998 and Leslie Chance filed a petition for divorce on April 3, 1998. A hearing concerning the custody of Elspeth and William was held on November 3-5, 1998. The trial court issued reasons for judgment on December 9, 1998, awarding custody as follows:

The above [Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98); 708 So.2d 731] noted it is the decision of the Court that it is in the best interest of the children that joint custody is to be awarded and that the father is to be the custodial or domiciliary parent. It should be noted however that Act 261 has also affected the terms of the "domiciliary parent", in that notwithstanding the domiciliary parent's right to make all decisions affecting the children, joint custodians are now much more clearly obligated to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision making authority.
The Court has also determined that the mother shall have extensive visitation privileges. Shared visitation will continue "basically" as is presently in effect with the father keeping the children half of the time and the mother keeping the children half of the time. The father and the mother are to divide up major holidays wherein the father and the mother will rotate holidays on an odd/even numbered year basis. The mother will always hav[e] the children on Mother's Day and the father will always have the children on Father's Day.
As a special condition to custody/visitation the children shall have reasonable access to both parents all of the time. If the children are at the mother's house for a two week period and wish to talk to their father via the telephone or computer, etc, the children shall be allowed to make this communication and vice versa. As another special condition, the Court will require that the mother maintain a housekeeper on a permanent basis for at least three days a week during the weeks that the children are home.

The court entered a judgment based on its reasons for judgment on January 6, 2000. On January 7, 2000, David Chance filed a motion for a new trial which the trial court denied.

The court appointed an attorney for Elspeth, and she filed a motion for reconsideration of the custody plan citing new evidence. The new evidence apparently consisted of Elspeth's desire to have a "home base," and her negative reaction to the custody plan instituted by the trial court. The trial court denied the motion and terminated the appointment of the children's attorney.

David Chance appeals the court's custody ruling as well as its denial of the motion for reconsideration. He specifies error as follows:

1. The District Court erred in awarding joint custody.
2. The District Court erred in designating David Gordon Chance as domiciliary parent and then depriving him of effective decision making authority.
3. The District Court erred in ordering an equal sharing of physical custody and a disruptive visitation schedule.

JOINT CUSTODY AND EQUAL SHARING

La.Civ.Code art. 132 provides that:

If the parents agree who is to have custody, the court shall award custody in *820 accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, 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.R.S. 9:335(A)(2)(b) provides that: "To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally."

David Chance argues that he has established, by clear and convincing evidence, that it is in the best interest of the children that he have sole custody. He further argues that the equal sharing plan enacted by the trial court is disruptive. He asserts that the judgment is not in the best interest of the children in that they need a home base. In making these arguments he relies heavily on the testimony of the court appointed psychological expert, Dr. Mark Vigen. It is to be noted that the version of the evidence given by the Appellant in his brief is one sided and does not accurately reflect the contents of the record as a whole. The record reveals the personal failings and weakness of both parties. However, the record also shows that both are excellent parents and have done and continue to do an outstanding job of raising all their children. Both parties need to accept that each has different, but equally important gifts to offer to their children. It is true that Dr. Vigen recommended that David Chance be given sole custody of the children with extensive visitation to Leslie Chance. However, the trial judge ordered joint custody and explained his rejection of the expert's recommendation as follows:

The Court will also address the Court appointed expert. On this issue the Court followed the rationale set forth in Day v. Day, 97-1994 (La.App. 1 Cir. 4/8/98), 711 So.2d 793. In Day, after listening to the recommendations of the Court appointed expert, the Court did not follow the recommendations of the expert, stating "the ultimate `best interest of the child' decision rests squarely in the exclusive province of the Court." This decision was affirmed by the appellate Court with the case remanded for implementation of a visitation plan since one had not already been established. It is an observation by the Court that when we as Judges are dealing with jury trials we give jurors instructions that are to the effect that experts that are testifying are not present to decide the case for jurors but are there simply to assist the jurors in arriving at a fair decision. We as Judges must follow the same rule of law and it was obvious to the Court that the recommendation of the Court appointed expert, Mark Vigen, was by his own admission a "close call". It was also obvious from his recommendations for mother visitation that the children would still be spending a substantial amount of time with the mother and that the custody visitation schedule which the Court is imposing does not increase that percentage extensively. Additionally, the evidence from Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
784 So. 2d 817, 2001 WL 460793, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chance-v-chance-lactapp-2001.