Geisler v. Geisler

506 So. 2d 1332, 1987 La. App. LEXIS 9430
CourtLouisiana Court of Appeal
DecidedMay 6, 1987
DocketNo. 18685-CA
StatusPublished
Cited by4 cases

This text of 506 So. 2d 1332 (Geisler v. Geisler) 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
Geisler v. Geisler, 506 So. 2d 1332, 1987 La. App. LEXIS 9430 (La. Ct. App. 1987).

Opinion

HALL, Chief Judge.

Appellant, James-Wesley Geisler, Jr., and appellee, Iris Geisler Shaw, were married on June 21, 1973. Two children were born of this marriage. On April 16, 1981, the marriage was dissolved and appellee was granted sole custody of the two minor children. On September 23, 1985, appellant filed a rule to show cause why joint custody of the children should not be granted. On October 23, 1985, judgment was rendered, in accordance with an agreement between the parties, granting joint custody of the minor children to both parents. Although specific provisions for holidays were made, this judgment did not specify which parent was to have primary residential custody of the children.

On April 14, 1986, appellant filed a rule to show cause why the joint custody plan of October 23, 1985 should not be amended to grant appellant primary residential custody of the children. Appellee answered requesting that she be awarded primary residential custody. After a two day hearing on June 10 and 11, 1986, the trial court amended the joint custody plan and granted primary residential custody during the school year to appellee and during the sum[1334]*1334mer to appellant with alternating weekend visitation and specific holiday provisions as previously provided. At the time of the hearing, the children, two boys, were ages seven and twelve.

Appellant complains on appeal that he should have been awarded primary residential custody of the children during the school year. We find no abuse of discretion and affirm the judgment of the trial court.

From the time of their separation until March, 1985, both appellant and appellee resided in Monroe except for approximately a year and a half when appellant’s business required him to live in South Louisiana. During this time, the physical custody of the children was shared, and although the parents disagree as to the primary residence of the children, the evidence indicates the children resided primarily with their mother. From March, 1985 through February, 1986, appellant attended mortician’s school in Dallas, Texas; he returned to Monroe in March, 1986, where he now resides. In August, 1985, appellee and the children moved to Shreveport where they have since remained. Since March, 1985, the children have primarily resided with their mother during the school year. At the time of the hearing, the children were spending the summer with their father in Monroe. Both parents have been cooperative and have encouraged visitation by the other parent and his or her family.

While in Monroe, appellee was employed in the trust department of American Bank and Trust Company. Appellee was dismissed from her employment in April, 1985 and on January 81, 1986, she pled guilty in federal court to two counts of embezzlement of funds from American Bank in the total amount of $2,289.88. Appellee paid the bank in excess of $60,000.00 in settlement of the bank’s claims against her. She was later sentenced to two years imprisonment of which all but thirty days was suspended, and placed on five years probation with the special condition that she perform four hundred hours of community service work. Appellee was to begin serving her thirty day prison term in Lafayette on June 15,1986 while the children were with appellant during the summer.

Appellant remarried in December, 1981 and is presently employed as a mortician at Kilpatrick’s Funeral Home in Monroe. Appellant’s wife Helen is not employed outside of the home.

Appellee married Captain Michael Shaw on May 17, 1986. Captain Shaw, a career Air Force pilot, was on active duty with a reserve unit at Barksdale Air Force Base at the time of the hearing, but was to begin training as a flight engineer with United Airlines by the fall of 1986. Although this is Captain Shaw’s third marriage, he has no children. Appellee had been employed at Dillard’s Department Store in Shreveport, but terminated her employment shortly before the hearing and intended to stay at home with the children after serving her jail term. The Shaws and the children live in the three bedroom townhome in which appellee and the children have been living since their arrival in Shreveport. They intend to remain in Shreveport even though Captain Shaw will be flying with United Airlines.

Evidence at the hearing showed that both children have adjusted well to their move to Shreveport, have made new friends, have improved their'school grades, and participate in many extra-curricular activities. Several friends and neighbors testified that the children are always neatly dressed, well-mannered, and happy. The older son indicated to the trial court that he would prefer to spend the majority of his time living with his father, while the younger son indicated that he would prefer to spend the majority of his time living with his mother.

Dr. Bobby Stephenson, an associate professor of psychology at Northeast Louisiana University, evaluated each child prior to the hearing upon the request of appellant. This evaluation consisted of an individual interview plus a battery of tests measuring intelligence, perceptual motor development, personality techniques, and projected techniques. Dr. Stephenson found that the older child was suffering from considerable stress and anxiety, had [1335]*1335difficulty dealing with strong emotions, particularly anger, and showed strong signs that his emotional needs were not being satisfactorily met. According to Dr. Stephenson, the latter indicates some conflict in the child’s relationship with his mother. In addition to having the same problems as his brother, Dr. Stephenson also found that the younger child had an excessive dependence on his mother. Dr. Stephenson admitted that the children’s levels of stress and anxiety were probably enhanced by the fact of the court appearance regarding the dispute over their custody. He also admitted that his evaluation focused on the boys themselves rather than on which parent was more suitable to have primary custody, about which he expressed no opinion.

LSA-C.C. Art. 157 provides that in all cases of separation and divorce, and change of custody after an original award, permanent custody of the children shall be granted to the parents in accordance with Article 146. LSA-C.C. Art. 146 E provides that an order for joint custody may be modified if it is shown that the best interest of the child requires modification of the order. The best interest of the child is the paramount consideration involved in a change of custody matter. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Dun-gan v. Dungan, 499 So.2d 149 (La.App. 2d Cir.1986). Because neither parent was designated primary custodial parent in the custody decree of October 23,1985, there need not be a showing of change in circumstances in order to award primary residential custody to either parent. However, stability of environment, that is, the manner in which the existing joint custody plan has actually been implemented by the parties, is a factor which should be considered in such a case. Bergeron, supra; Johnson v. McCullough, 410 So.2d 1105 (La.1982); Dungan, supra.

Every child custody case must be viewed on its particular circumstances. Great weight is given to the trial court’s decision which will not be overturned absent a showing of abuse of discretion. Stephenson v. Stephenson, 404 So.2d 963 (La.1981); Cole v. Cole, 467 So.2d 872 (La.App. 2d Cir.1985).

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Bluebook (online)
506 So. 2d 1332, 1987 La. App. LEXIS 9430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geisler-v-geisler-lactapp-1987.