Dominick v. Dominick

470 So. 2d 314
CourtLouisiana Court of Appeal
DecidedMay 13, 1985
Docket84-CA-676
StatusPublished
Cited by7 cases

This text of 470 So. 2d 314 (Dominick v. Dominick) 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
Dominick v. Dominick, 470 So. 2d 314 (La. Ct. App. 1985).

Opinion

470 So.2d 314 (1985)

Donna Price, Wife of Thomas A. DOMINICK
v.
Thomas A. DOMINICK.

No. 84-CA-676.

Court of Appeal of Louisiana, Fifth Circuit.

May 13, 1985.

*315 Gwendolyn F. Thompson, Tobias, LeBlanc, Thompson & Waldrup, New Orleans, for defendant-appellant.

J. Stuart Douglass, Metairie, John J. Fenerty, III, New Orleans, for plaintiff-appellee.

Before KLIEBERT, GAUDIN and GRISBAUM, JJ.

KLIEBERT, Judge.

This is an appeal by Thomas A. Dominick, the husband, from a judgment relative to custody, visitation and child support in favor of Donna Price Dominick, the wife, rendered on October 8, 1984 in a marital dispute which initially commenced in the fall of 1981.

The judgment was rendered after a joint hearing on the following motions: (1) by the father for joint custody of the only child of the marriage, a six year old male, (2) by the wife to increase child support, (3) by the father to decrease child support, (4) by the wife to make executory and hold the husband in contempt for failure to pay interest payments on a mortgage held by a third party on the community house, and (5) by the husband to hold the mother in contempt for failure to comply with the court-ordered visitation rights of the father while the child was in her custody. The trial judge refused to change the custody of the child but made changes in the father's visitation rights, left the support amount the same as that ordered in the previous support judgment, made executory a judgment for past due interest of $1,888.00 and dismissed the contempt charges against the wife. We modify the visitation rights and remand the case for the trial judge to reduce the amount of the delinquent interest payments made executory in favor of the wife in accordance with the views hereafter expressed. In all other respects, the judgment is affirmed.

CUSTODY AND VISITATION

Early in the marital dispute and prior to the enactment of Civil Code Article 146, under an agreement of the parties, the custody of the then three year old male child was granted to the mother with visitation on alternate weekends and alternate specified holidays with the father. This was maintained until July 18, 1984 when visitation with the father was extended to include a six week period during the summer.

The husband's plan for joint custody suggested custody with the father during the summer months and custody with the mother during the school year with specific visitation rights for each parent while the *316 child was in custody of the other parent. On appeal, the husband contends the trial court erred in failing to grant joint custody pursuant to his plan as is required by Article 146 of the Civil Code.

As stated by the husband, Article 146 does create a presumption that joint custody is to the better interest of the child and therefore joint custody should be the court's first preference in making a custody award. Further, the article does apply to petitions for change of custody filed after the effective date of the act even though there was a prior custody order to a single parent. Duhe v. Duhe, 451 So.2d 1198 (5th Cir.1984). However, the presumption so created is a rebuttal one and therefore not a mandate to automatically award joint custody upon request of either party for same.

The Supreme Court, while discussing the presumption in Turner v. Turner, 455 So.2d 1374 (La.1984), said:

"This presumption has caused some confusion. Some lower courts seem to believe that the article requires granting joint custody. Such is not the case; the article clearly provides that there is only a presumption in favor of joint custody, and that it may be rebutted upon a proper showing that a different arrangement is in the child's best interest. Such a showing now must include a consideration of eleven specific, enumerated factors, plus any `other factor' which the trial court deems to be relevant. C.C. 146(C)(2)(a)-(1). Article 146 provides further that `the burden of proof that joint custody would not be in the child's best interest shall be on the parent requesting sole custody.' C.C. 146(A)(2). This provision does not create any extraordinary burden on the party requesting sole custody.
* * * * * *
The article 146 presumption only compels the judge to award joint custody in those cases where other things are equal; or where there is insufficient evidence to rebut the presumption; or whenever neither parent alone would be able to manage a sole custody arrangement, and where it cannot be shown that it would be detrimental to the child to remain in parental custody. Effectively, the presumption only provides the judge with a first choice, which choice must be rejected in the face of evidence which tends to disprove the conclusion. In such a case, it becomes necessary for the other party to reestablish the propriety of the presumption's conclusion.
There is but one element upon which the trial court cannot base its decision. Article 146(A)(2) expressly forbids the judge from `prefer[ring] a parent as the custodian because of that parent's sex.'"

In the instant case both parents had remarried. The husband was living with his second wife in an apartment in the Metairie area. The only other occupant of the home was a baby daughter born of the father's second marriage. The wife and her second husband, along with the two teenage daughters of the wife's second husband, were residing in an apartment in the Luling area.

The court ordered and obtained home study reports from the Department of Health and Human Resources. In essence, the reports indicated both homes had a good family environment which could provide the child a comfortable, loving and stable home. The trial judge concluded that both the mother and father were loving parents with each being capable and desiring to care and provide for the child and to have the child reside with them.

However, considering the record of the marital dispute, the trial judge found the parties were unable to get along and that a joint custody arrangement at this time would only serve to generate future problems. As in Turner, supra, the record before us shows that the parties were unable to resolve any problems outside of court. Joint custody requires cooperation between the parents to promote the better interest of the child. Since the child has resided with the mother throughout the pendency of this protracted procedure and *317 the parties now reside in different communities, we cannot say the trial court abused its discretion in finding that joint custody at this time was not in the best interest of the child. Duhe v. Duhe, supra; Plemer v. Plemer, 436 So.2d 1348 (La.App. 4th Cir. 1983).

Appellee also contends that the trial court erred in reducing his summer visitation rights with the child from six weeks to three weeks in August.

The trial court reduced the father's summer visitation rights because of prospective swimming activities of the child as a member of a local swimming team. We cannot say the trial court erred in finding that the best interest of the child included participation in these swimming activities. However, we note that some of these swimming activities may be conducted in the Metairie area as well as in the Luling area. Further, the father has testified that he is in agreement with the swimming program and he could and would make arrangements to bring the child to swimming practice and meets whenever necessary during the time the child resided with him.

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Bluebook (online)
470 So. 2d 314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dominick-v-dominick-lactapp-1985.