Glover v. Tooley

641 So. 2d 1032, 1994 La. App. LEXIS 2268, 1994 WL 460687
CourtLouisiana Court of Appeal
DecidedAugust 17, 1994
DocketNo. 25988-CA
StatusPublished
Cited by1 cases

This text of 641 So. 2d 1032 (Glover v. Tooley) 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
Glover v. Tooley, 641 So. 2d 1032, 1994 La. App. LEXIS 2268, 1994 WL 460687 (La. Ct. App. 1994).

Opinion

JiSEXTON, Judge.

The mother of a minor child appeals that portion of the judgment which affirmed an earlier order of restricted visitation in the presence of an off-duty police officer. We affirm.

FACTS

This case involves a custody dispute between Charles Glover and Georgia Gilbert Tooley over the minor child born of their former union. The parties were married on May 31, 1982, in Bossier Parish, Louisiana. Of this marriage, one child was born on August 20, 1985, Aric Glover (“Aric”).

Charles Glover left the matrimonial domicile on September 9,1987, and filed a petition for separation and request for custody of the minor child on May 12, 1988. By order dated May 12, 1988, Mr. Glover was granted provisional custody of Aric. On May 14, 1988, Mrs. Tooley was allowed two weeks visitation with Aric by her estranged husband and it was agreed that she would return the child on May 28,1988. However, on that date, she informed Mr. Glover that she would not return the child.

On June 14, 1988, Charles Glover filed an ex parte motion for return of Aric. An order issuing a civil warrant for the return of the minor child to Charles Glover was rendered by the trial court on June 14,1988. Aric was thereafter returned to the custody of his father.

On July 28, 1988, the court rendered judgment ordering that the minor child to be evaluated by a clinical psychologist, that Charles Glover continue provisional custody of the child pending the custody hearing, and that Georgia Tooley pay $100 per month in child support.

On January 19, 1989, the trial court rendered judgment granting joint custody of the minor child to the parties, designating Charles Glover as domiciliary parent with Georgia Glover having reasonable visitation in accordance with a joint custody visitation plan submitted by the parties. This judgment was signed on February 13, 1989.

|20n May 12, 1989, Charles Glover filed a rule to modify the joint custody plan submitted earlier by the parties seeking weekend visitation with the child during the six-week summer period during which the child was with his mother. This request was granted, and allowed Georgia Gilbert Tooley an additional four days visitation.

On July 23, 1991, Charles Glover filed a rule to terminate and/or restrict visitation, claiming that the minor child was experiencing difficulty upon return from Georgia Too-ley’s care and that she was planning to remove the minor child from the jurisdiction of the court. Accordingly, Charles Glover requested that visitation rights be terminated or, in the alternative, restricted, to take place only in the presence of a law enforcement officer. Georgia Tooley countered on July 24, 1991, with a request for a writ of habeas corpus and for a rule for contempt of court claiming that Charles Glover had threatened to not allow her to see the minor child again.

On August 1, 1991, a hearing was held specifically on the writ of habeas corpus and rule for contempt. These claims were orally dismissed by the trial court on the date of the hearing. Written judgment to that effect was signed on August 15, 1991. The trial [1034]*1034court continued the matter as to the issue of a change in custody, but ordered interim custody and visitation for the parties. Specifically, the court continued domiciliary custody with Mr. Glover and granted the mother visitation with the child every other Saturday in the presence of an off-duty police officer, the cost of which was ordered to be shared by the parties.

On August 13, 1991, Georgia Tooley filed a rule for sole custody or, in the alternative, that she be named domiciliary parent, claiming that it was not in the child’s best interest to remain with Charles Glover.

No further action was taken on the pending rules until May 25, 1993, when Georgia Tooley filed a rule to modify visitation pending a hearing on the rules previously filed. The request included a request for contempt of court against Charles Glover for failing to allow the minor child to visit with Georgia Glover, a preliminary Iginjunction directed unto Charles Glover restraining and enjoining him from advising health and hospitalization insurance companies not to pay certain medical and counseling bills incurred by Georgia Tooley on behalf of the minor child, expanded visitation for the purpose of taking the child to counseling and excluding supervision by an off-duty police officer, and the appointment of an attorney for representation of Aric Glover.

Charles Glover filed a rule for contempt to make past-due support executory, to obtain an income assignment order, and to increase child support.

The trial court entered judgment dismissing the claims of Georgia Tooley for modification of visitation rights and contempt of court against Charles Glover. The court maintained the earlier judgment of August 15, 1991, which provided for supervised visitation. The claims of Charles Glover for an increase in child support were dismissed. Further, the court ordered that there be judgment allowing Georgia Tooley access to all records of the child, including school and medical, except those which would enable her to determine the schedule of the child. The court found Georgia Tooley in contempt of court, sentencing her to a suspended sentence of five days in jail. She was assessed the sum $1300 for child support arrearage which was made executory. The court further ordered an income assignment order to be served upon Georgia Tooley.

Georgia Gilbert Tooley appeals that portion of the judgment which maintained the restrictive visitation. She claims that the trial court erred in failing to lift the visitation restriction, in failing to expand visitation to allow her access to the child (to facilitate counseling to reestablish the relationship between the mother and the child), in failing to consider the best interest of the child, and in not allowing her to post bond to insure compliance with visitation orders unless both parties consented to the bond procedure.

^DISCUSSION

Louisiana law establishes a presumption in favor of joint custody of the children of the marriage. LSA-C.C. Art. 131 (now LSA-C.C. Arts. 131-136, effective January 1, 1994); Yelverton v. Yelverton 621 So.2d 36 (La.App. 2d Cir.1993); Guillory v. Guillory, 602 So.2d 769 (La.App. 3d Cir.1992).

In all cases involving a change of custody after an original award,. permanent custody of the child shall be granted to the parents in accordance with LSA-C.C. Art. 131. Any order may be modified if it is shown that the best interest of the child requires modification or termination of the order. LSA-C.C. Art. 131(E); Pulley v. Pulley, 587 So.2d 116 (La.App. 2d Cir.1991).

In deciding whether or not the trial court erred in modifying or failing to modify an original decree, it is necessary to determine whether the original judgment was a considered decree. A considered decree is one rendered subsequent to the presentation of evidence as to the fitness of a party to have the care, custody and control of the children. Schubert v. Schubert, 605 So.2d 666 (La.App. 2d Cir.1992), writ denied, 609 So.2d 230 (La.1992); Hillidge v. McFarland, 566 So.2d 192 (La.App. 2d Cir.1990); Dungan v. Dungan, 499 So.2d 149 (La.App. 2d Cir.1986). When a court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that continuation of the present cus[1035]

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Related

Wilson v. Wilson
714 So. 2d 35 (Louisiana Court of Appeal, 1998)

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Bluebook (online)
641 So. 2d 1032, 1994 La. App. LEXIS 2268, 1994 WL 460687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glover-v-tooley-lactapp-1994.