Franklin v. Franklin

763 So. 2d 759, 2000 WL 675947
CourtLouisiana Court of Appeal
DecidedMay 24, 2000
Docket99-1738
StatusPublished
Cited by11 cases

This text of 763 So. 2d 759 (Franklin v. Franklin) 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
Franklin v. Franklin, 763 So. 2d 759, 2000 WL 675947 (La. Ct. App. 2000).

Opinion

763 So.2d 759 (2000)

Tracy Craig FRANKLIN
v.
Deanna Renee M. FRANKLIN.

No. 99-1738.

Court of Appeal of Louisiana, Third Circuit.

May 24, 2000.

*760 Walter E. Dorroh, Jr., Jena, Louisiana, Counsel for Plaintiff-Appellee.

Mark L. Talley, Jena, Louisiana, Counsel for Defendant-Appellant.

(Court composed of Judge HENRY L. YELVERTON, Judge BILLIE COLOMBARO WOODARD, Judge GLENN B. GREMILLION).

GREMILLION, Judge.

In this case, Deanna Renee M. Franklin Hoffman (Deanna) appeals the trial court's determination granting her ex-husband, Tracy Craig Franklin (Craig), physical custody of their only son Tyler Craig Franklin (Tyler).

FACTS AND PROCEDURE

Deanna and Craig married on September 7, 1991, separated initially on February 23, 1996, reconciled sometime during January or February of 1997, and separated in fact for the final time on or about March 1, 1997. This suit was initiated as a La.Civ.Code art. 102 divorce action on March 12, 1997. Even though the divorce was granted, no custodial disposition was made as to Tyler. After the separation, Tyler resided with Deanna at her residence in Caldwell Parish some forty-five miles from Craig's home in LaSalle Parish. Tyler lived with his mother, but he spent approximately an equal amount of time with Craig. Craig was able to get Tyler any time he was able, and when his work afforded it, he spent as much as a week with Tyler.

On May 10, 1997, Deanna began dating Paul Hoffman. In the spring of 1998, Paul began the process of selecting a location for a new residence in the Atlanta, Georgia area. One of the factors that he considered in selecting a location was the school facilities in the area of his proposed residence. On June 6, 1998, Craig married his current wife Kimberly and later adopted her four-year-old daughter Reagan. On July 10, 1998, Paul proposed marriage to Deanna. Also on that same day, at the *761 urging of Deanna, she and Craig voluntarily entered into a Joint Custody Plan. The plan named Deanna as the domiciliary custodial parent and provided that Craig would be allowed visitation on alternating weekends, portions of school holidays, and one-half of the school summer vacation period. However, it appears that, prior to the signing of the agreement, the parties had an informal agreement that Craig would be afforded visitation whenever his work schedule allowed. Following the signing of the plan, however, Deanna restricted access to Tyler to only that which was delineated in the plan.

On July 20, 1998, just ten days after the signing of the custodial agreement, Deanna's attorney wrote to Craig's attorney advising of a proposed relocation by Deanna to Acworth, Georgia and her intentions to remove Tyler from the State of Louisiana. The Joint Custody Plan itself contained a provision concerning a relocation of a parent and read as follows:

VIII. CHANGE OF RESIDENCE. Either party may change residence at any time. However, if such change requires modification of this plan, the party desiring to change residence shall communicate with the other for the purpose of agreeing to a modification. The communication shall be in writing. Any modification shall be presented to the Court by a joint motion of the parties. If no agreement on modification is reached, the party changing residence shall request a modification from the court.

After notification of Deanna's intentions to relocate, Craig filed a rule to revise the Joint Custody Plan, and a new intermittent agreement affording visitation of alternating two-week durations to each party was reached in mid-October of 1998. The agreement was supposed to have been reduced to writing in the form of a consent order, but never went beyond a letter from Craig's attorney to Deanna's attorney. In his pleading, Craig alleged that Deanna was aware of her plans to move when she proposed the Joint Custody Plan and, as such, he was deceived into consenting to the plan. Craig sought to be awarded sole custody and, in the alternative, to be declared the domiciliary parent of Tyler. Craig also sought child support.

In August of 1998, Deanna's mother, with whom Deanna had been residing in Caldwell Parish, remarried and moved to Georgia. In contemplation of litigation, the parties agreed that Deanna would not leave Louisiana with Tyler for the purpose of establishing a residence elsewhere until completion of the litigation. Approximately six weeks later, Craig filed a rule for contempt alleging that Deanna had moved herself and Tyler to the State of Georgia. At the conclusion of the hearing, the trial court found that Deanna had established a new residence in Acworth, Georgia. The trial court further held that Deanna intended to maintain her residence in Caldwell Parish only so long as she needed it to appear that she had not relocated.

On August 10, 1998, Deanna married Paul and went on a long honeymoon. On August 30, 1998, Paul moved to Georgia. Deanna was in Louisiana between September 1-8 and 17-30, and October 1-9, 1998.

Dr. John Simoneaux, a psychologist and independent expert appointed by the trial court, evaluated both Craig and Deanna and concluded that granting Craig domiciliary custody and allowing visitation to Deanna in accordance with the geographic distance between the parties was in the best interest of Tyler. Dr. Simoneaux, in his deposition and report, was of the opinion that Craig offered the sort of stable environment and familiar surroundings essential to a four-year-old child.

The trial court found that Deanna "was not honest and forthcoming" with Craig with respect to her intended marriage and relocation. The trial court further held that Deanna induced Craig to execute the Joint Custody Plan "because she felt she would have an advantage in the custody matter." Thus, the trial court concluded *762 that Deanna "put her concerns and desires ahead of the considerations for the best interests of Tyler." The trial court further stated that it did not consider the Joint Custody Plan a "considered" decree and that Craig did not have the burden of showing a change in circumstances in order to be allocated the status of domiciliary parent.

After extensively reviewing the applicable law, the trial court determined that it was in the best interest of Tyler that he live with his father in Louisiana and imposed such in the Joint Custody Plan dated June 24, 1999. The trial court further ordered Deanna pay child support starting on September 1, 2000, and that Craig acquire and pay for any and all group health insurance upon Tyler which may be available through his employment. Additionally, Craig was ordered to pay sixty-five percent of any reasonable and necessary health care expenses not covered by health insurance, with Deanna required to pay the remaining thirty-five percent.

Deanna appeals the trial court's ruling, claiming the trial court erred in determining that her relocation to Georgia was not in the best interest of Tyler.

APPELLATE REVIEW

A trial court's determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365. Every child custody case must be decided based only on its own particular facts and circumstances. Lindner v. Lindner, 569 So.2d 173 (La.App. 1 Cir.1990). In Kuhl v. Kuhl, 97-1725, pp. 2-3 (La.App. 3 Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
763 So. 2d 759, 2000 WL 675947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-franklin-lactapp-2000.