Granger v. Granger

25 So. 3d 162, 9 La.App. 3 Cir. 272, 2009 La. App. LEXIS 1915, 2009 WL 3734327
CourtLouisiana Court of Appeal
DecidedNovember 10, 2009
Docket09-272
StatusPublished
Cited by5 cases

This text of 25 So. 3d 162 (Granger v. Granger) 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
Granger v. Granger, 25 So. 3d 162, 9 La.App. 3 Cir. 272, 2009 La. App. LEXIS 1915, 2009 WL 3734327 (La. Ct. App. 2009).

Opinions

AMY, Judge.

hThe parties were awarded joint custody of their minor child by a considered decree. The mother was named as the domiciliary parent. Thereafter, the father requested a change in the physical custody schedule as, he contended, the physical custody schedule was unworkable. The trial court found in favor of the father, modifying a portion of the physical custody-schedule. The mother appeals. For the following reason, we affirm.

Factual and Procedural Background

The parties, Dr. Tommie Granger and Dr. Stephanie Barnes, were awarded joint custody of their minor daughter, Savannah, by an August 2000 considered decree. The decree named Dr. Barnes as the domiciliary parent. At that time, Dr. Barnes resided in Little Rock, Arkansas with Savannah, while Dr. Granger resided in Alexandria, Louisiana.

The plan implementing the joint custody provided that Dr. Granger would have physical custody of the minor child every other weekend from Wednesday to Sunday. It prohibited Dr. Granger from removing Savannah from Little Rock until after school on Fridays. During the summer, Dr. Granger had physical custody from the beginning of the summer school break until ten days before the start of school. Dr. Barnes had physical custody every other weekend from Wednesday to Sunday.

By 2002, Dr. Granger began seeking a modification of the considered decree and a reduction in child support. By that time, Dr. Barnes and Savannah had relocated to Shreveport, Louisiana. After a number of continuances and after attempts at mediation, a hearing on the modification of the physical custody decree was eventually held in December 2008 and, thereafter, the trial court rendered a new decree. The decree maintained the parties’ joint custody status and, again, designated |2Pr. Barnes as the domiciliary parent. However, it shortened Dr. Granger’s period of physical custody during the school year to Friday after school until Sunday at 6:00 p.m. It lengthened Dr. Granger’s periods of summer physical custody from the end of the school term until five days prior to the beginning of the fall semester. As for the summer, Dr. Barnes was given physical custody every other weekend from 5:00 p.m. on Friday until Sunday at 6:00 p.m.

The trial court also reduced Dr. Gran-ger’s child support obligation by fifty percent during the summer when he was exercising physical custody.

Dr. Barnes appeals, assigning the following as error:

1. The trial court erred in modifying the visitation schedule of the minor child.
[164]*1642. The trial court erred in failing to address visitation during the beginning and end of the summer time.
3. The trial court erred in setting the time for transfer of custody at 6:00 p.m.
4. The trial court erred in reducing the child support obligation.

Discussion

Modification

Dr. Barnes first questions the trial court’s modification of the existing physical custody arrangement. It is important to note that, throughout this proceeding, the parties have referred to the matter submitted to the court as a request for change in visitation. In fact, in her brief to this court, Dr. Barnes states that, since Dr. Granger “is attempting to modify visitation alone, the applicable standard is the best interest of the child.”

Yet, the parties shared joint custody in this case and, therefore, visitation is not at issue. See La.Civ.Code art. 136, which provides for visitation only in the event a |sparent does not have custody or joint custody.1 Instead, Dr. Granger sought a modification of the schedule of joint physical custody instituted pursuant to La. R.S. 9:335.2 Therefore, this case must be considered as a modification of custody. See Jackson v. Harris, 05-604 (La.App. 3 Cir. 12/30/05), 918 So.2d 1163; Cedotal v. Cedotal, 05-1524 (La.App. 1 Cir. 11/4/05), 927 So.2d 433; DeSoto v. DeSoto, 04-1248 (La. App. 3 Cir. 2/2/05), 893 So.2d 175; Francois v. Leon, 02-460 (La.App. 3 Cir. 11/27/02), 834 So.2d 1109; Lee v. Lee, 34,025 (La.App. 2 Cir. 8/25/00), 766 So.2d 723, writ denied, 00-2680 (La.11/13/00), 774 So.2d 150 (citing Davenport v. Manning, 95-2349 (La.App. 4 Cir. 6/5/96), 675 So.2d 1230).

The best interest of the child is the paramount consideration in a custody matter. See La.Civ.Code art. 131.3 However, because Dr. Granger sought a modification of a considered decree, he was required to satisfy the further jurisprudential standard of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Bergeron requires the party seeking a change in custody to prove that the |4continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id. See also La.Civ.Code art. 131, comment (d).4 A trial court’s determina[165]*165tion in child custody matters is entitled to great weight, and will not be disturbed on review in the absence of a clear showing of abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756.

As the trial court did not render written or verbal reasons for its ruling, it is unclear what standard it applied in its determination to modify the physical custody schedule. However, our review of the record indicates that the trial court’s ruling is not an abuse of its discretion as the evidence supports a modification of the original, considered decree under the Bergeron standard. In particular, the record contains clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

The Bergeron requirements must be considered in light of the circumstances of this case and the minimal changes requested by Dr. Granger. First, it is clear that certain aspects of the original custody decree were no longer working for the parties and that, although they had been living under the original decree, they were only Isdoing so with a great deal of stress and a certain degree of flexibility. That flexibility, or perceived lack thereof at certain times, caused friction between the parties. Further, the parties were aware of the need to reach a mutually agreeable schedule as they previously appeared in court and worked in mediation. However, they had been unable to do so. The trial court recognized this, stating that “nothing has worked, and that’s why we’re here today.” Finally, the modifications of the original decree requested by Dr. Granger, and imposed by the trial court, were limited in the scheme of the entire custody arrangement, i.e., the father was granted lengthier periods of physical custody in the summer, but was granted fewer days of custody during the school year. Although the trial court rendered a new order, the remaining custody terms were essentially unchanged.

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Cite This Page — Counsel Stack

Bluebook (online)
25 So. 3d 162, 9 La.App. 3 Cir. 272, 2009 La. App. LEXIS 1915, 2009 WL 3734327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granger-v-granger-lactapp-2009.