Givens v. Givens

53 So. 3d 720, 2010 La.App. 1 Cir. 0680, 2010 La. App. LEXIS 1829, 2010 WL 5185537
CourtLouisiana Court of Appeal
DecidedDecember 22, 2010
DocketNo. 2010 CU 0680
StatusPublished
Cited by8 cases

This text of 53 So. 3d 720 (Givens v. Givens) 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
Givens v. Givens, 53 So. 3d 720, 2010 La.App. 1 Cir. 0680, 2010 La. App. LEXIS 1829, 2010 WL 5185537 (La. Ct. App. 2010).

Opinion

WELCH, J.

iJn this acrimonious divorce and child custody proceeding, Frances Jean Crow Givens appeals a trial court judgment and its incorporated joint custody plan insofar as it allocates Kenneth Blake Givens periods of overnight physical custody1 with the minor child. Finding no error in the judgment of the trial court, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Frances Givens and Kenneth Givens were married on August 4, 1979. During their marriage, they had two children: Victoria Brighten Givens, who was born on June 24, 1987 (and is now a major), and Olivia Rose Givens, who was born on July 24,1997. During the marriage, they resided in Terrebonne Parish. On March 23, 2007, Frances Givens filed a petition for divorce based on La. C.C. art. 103(2), alleging Kenneth Givens had committed adultery. In her petition, she also requested that she be awarded sole custody of the minor child, Olivia. Kenneth Givens admitted the allegations of adultery in his answer to the petition. However, he denied that Frances Givens should be award[724]*724ed sole custody of Olivia, and asserted that the parties were entitled to joint custody and that he should be designated as the domiciliary parent. Kenneth Givens subsequently amended his answer, maintaining that the parties should be awarded joint custody of the child, but asserting that Frances Givens should be designated as the child’s domiciliary parent, subject to liberal and generous physical custodial periods with the child in his favor. Shortly after Frances Givens filed her petition for divorce, she moved with the minor child to New Orleans, Louisiana (without notice to Kenneth Givens) into the home of her sister and brother-in-law, both of whom are attorneys |3and are representing her in this matter.

A trial on the issue of custody initially commenced on July 5, 2007; however, the matter was not completed on that date. On that date, the majority of the testimony and evidence concerned specific details regarding Kenneth Givens’ use of the internet on the family computer to access pornographic websites (some of which suggested inappropriate sexual proclivities), and sexually explicit communications and photographs exchanged between Kenneth Givens and Barbara Crosby, the person with whom he had an adulterous affair. Pending completion of the trial, Kenneth Givens was granted visitation one day every weekend from 9 a.m. until 9 p.m. Additionally, following that hearing (and by a previous joint agreement of the parties), a psychological evaluation of the parties was performed by John C. Simoneaux, Ph.D.2 Also, a psychiatric evaluation of Kenneth Givens, for the purpose of determining the presence of any psychiatric dysfunction, was conducted by Frances Givens’ expert, Harold M. Ginzberg, M.D., J.D., M.P.H.

The parties were eventually divorced,3 and thereafter, Kenneth Givens married Barbara Crosby (hereinafter “Barbara Givens”) and moved from Terrebonne Parish to her residence in Wesson, Mississippi. Numerous disputes between the parties over various issues arose, all of which required court appearances and resolution by the trial court. Pertinent to this appeal, Frances Givens made a request to inspect and photograph Barbara Givens’ residence in Mississippi. Kenneth Givens objected to this request, and in response, Frances Givens requested Kenneth Givens’ request for “liberal and generous” (or overnight) custodial time be stricken based on his refusal to allow the inspection. The trial court denied both Frances Givens’ request to inspect and photograph 14 Bar bar a Givens’ residence and her motion to strike.

The remainder of the custody trial was eventually held on June 1, 2, and 3, 2009. At the conclusion of trial, the trial court took the matter under advisement. On July 24, 2009, the trial court rendered and signed a judgment awarding Frances Givens and Kenneth Givens joint custody of the minor child, Olivia, subject to a joint custody plan attached to and made part of the judgment. The judgment also designated Frances Givens as the domiciliary parent of the child, subject to Kenneth Givens’ right to physical custodial time, without restriction, in accordance with the attached joint custody plan. The attached joint custody plan allocated physical custodial periods to Kenneth Givens: every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., commencing Friday, July 31, 2009; on specific holidays, with [725]*725the holidays each party was entitled to alternating on a yearly basis; and for four weeks during the school summer vacation. Following the rendition of judgment, on August 25, 2009, the trial court issued extensive findings of fact and written reasons for judgment.

Frances Givens has appealed the July 24, 2009 judgment of the trial court, asserting that the trial court erred in awarding Kenneth Givens overnight periods of physical custody.4 Specifically, she argues that the trial court erred in denying her the right to inspect Barbara Givens’ home in Mississippi and in denying her motion requesting that Kenneth Givens’ request for overnight visitation be stricken. She also argues that the trial court erred in: rejecting the testimony of two experts, Dr. Ginzberg and Dr. Simoneaux; relying on the testimony of Dorothy Day, a Licensed Marriage and Family Therapist, whom the trial court accepted as an expert in marital and family counseling; accepting the testimony of Barbara Givens; and “[ajpplying incorrect principles of law, which errors were prejudicial to [Frances |fiGivens], and otherwise making clearly erroneous findings of fact that [were] not supported in the record.”

LAW AND DISCUSSION

General Precepts Concerning Child Custody

Each child custody case must be viewed in light of its own particular set of facts and circumstances. Perry v. Monistere, 2008-1629, p. 3 (La.App. 1st Cir.12/23/08), 4 So.3d 850, 852. Louisiana Civil Code article 131 provides “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” Thus, the paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577, p. 12 (La.2/6/98), 708 So.2d 731, 738. In determining the best interest of the child, La. C.C. art. 134 provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(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, 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.

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Cite This Page — Counsel Stack

Bluebook (online)
53 So. 3d 720, 2010 La.App. 1 Cir. 0680, 2010 La. App. LEXIS 1829, 2010 WL 5185537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/givens-v-givens-lactapp-2010.