Jessen v. Jessen

697 So. 2d 717, 97 La.App. 1 Cir. 0287, 1997 La. App. LEXIS 1726, 1997 WL 349483
CourtLouisiana Court of Appeal
DecidedJune 20, 1997
DocketNo. 97 CA 0287
StatusPublished
Cited by1 cases

This text of 697 So. 2d 717 (Jessen v. Jessen) 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
Jessen v. Jessen, 697 So. 2d 717, 97 La.App. 1 Cir. 0287, 1997 La. App. LEXIS 1726, 1997 WL 349483 (La. Ct. App. 1997).

Opinions

J2LOTTINGER, Chief Judge.

This is an action for custody, visitation and child support of a three-year-old child. The mother now appeals the family court’s award of joint custody and its plan of implementation which provides for alternate visitation privileges every two months. The mother further appeals the family court’s award of child support and one-half of the transportation costs.

FACTS

The record reflects that the parties hereto met in New York City in 1990, and were married a year and a half later in March of 1992. Following their marriage, the couple resided in Sterling, Virginia where their son, Kristian, was born in October of 1992. The couple remained in Virginia for almost three years. During this time, plaintiff, Cheri Cor-bett Jessen (hereinafter, “Ms.Jessen”), continued her employment as a flight attendant with American Airlines, while defendant, Thomas Jessen (hereinafter, “Mr.Jessen”), a Danish national, worked under contract with the import sales division of Anheuser-Busch.

When Mr. Jessen’s contract ultimately ran out, he secured another position with Anheu-ser-Busch’s marketing division; however, this change necessitated a move to Plantation, Florida. Ms. Jessen was able to switch her base of operations to Miami where she began flying international flights. After eight months in Florida, Mr. Jessen secured a better paying job as a district manager for a bottled water firm in Austin, Texas. Following their move to Austin, the couple lived there for approximately four weeks when Ms. Jessen left and moved with Kristian back to her family’s home in East Baton Rouge Parish. Approximately three weeks later, she filed for divorce.

Following a hearing on a rule to show cause as to custody and visitation, the family court in and for the Parish of East Baton Rouge awarded provisional custody of Kris-tian to Ms. Jessen subject to unsupervised visitation with Mr. Jessen in Austin for alternate three-week periods. Aggrieved, Ms. Jessen thereafter obtained a writ from this court vacating the proposed visitation schedule on the grounds that said schedule was “unreasonable in light of the distance between the parties.”1

IgFolIowing a subsequent hearing on the issue of permanent custody, the family court awarded custody of Kristian jointly to Ms. Jessen and Mr. Jessen, with Ms. Jessen being named as the domiciliary parent. Using their combined monthly gross incomes, the court calculated the basic support obligation owed by the parties for one child, and fixed Mr. Jessen’s monthly support obligation at $205.00. The family court then ordered the parties to submit to the court within thirty days a plan that would provide for equal sharing of the child.

When the parties thereafter failed to submit a plan, the court devised its own plan which granted to each parent visitation with the child for alternating two-month periods. The court’s plan also provided that during the middle of the other parent’s visitation cycle, the non-visiting parent could visit the child for a weekend at the place where the child was staying. The plan devised by the court further provided that the parents would alternate the major holidays, and that each parent would be responsible for one-half [719]*719of the costs of transporting the child between the two households. The family court signed a judgment in accordance with these findings on August 29, 1996.2 From this judgment, Ms. Jessen now appeals.3

ASSIGNMENTS OF ERROR

In her appeal, Ms. Jessen asserts that the family court abused its discretion in the following respects:

1. In ordering that the parties share joint custody of their minor child;
2. In ordering “that the parties share physical custody equally, to the extent feasible, as close to fifty (50%) percent of the time as possible”;
3. In ordering the mother to repay the father for certain travel costs; and
144. In ordering the father to pay the mother only $205.00 dollars in monthly child support.

DISCUSSION

After a thorough review and evaluation of the record, we are convinced that the evidence supports the family court’s decision to award custody of the minor to the parties jointly in accordance with La. Civ.Code art. 132. In concluding that joint custody was in the best interest of the child, the family court, in written reasons for judgment, carefully considered the twelve factors set forth under La. Civ.Code art. 134 and provided a well-reasoned analysis for its findings. We find no fault in its determination.

In her second assignment of error, Ms. Jessen contends that the family court’s order “that the parties share physical custody equally, to the extent feasible, as close to fifty (50%) percent of the time as possible,” constituted an abuse of discretion. In support of this contention, Ms. Jessen cites Swope v. Swope, 521 So.2d 656 (La.App. 1st Cir.1988) and Stanley v. Stanley, 592 So.2d 862 (La.App. 3rd Cir.1991) for the proposition that where the parents live in different cities, a joint custody implementation plan providing for a fifty-fifty sharing of physical custody is not in the child’s best interest. We find these cases to be inapposite for the reason that they dealt with school age children, and were decided prior to the enactment in 1993 of La. R.S. 9:335 A(2)(b).

As this court noted in Remson v. Remson, 95-1951 (La.App. 1st Cir. 4/4/96), 672 So.2d 409:

LSA-R.S. 9:335 enacted by Acts 1993, No. 261, § 5, and the previous amendments to LSA-C.C. art. 131(D) as amended by Acts 1993, No. 905, § 1, represent a substantial departure from prior law. Previously, the courts consistently held that joint custody did not mean a 50-50 sharing of time. Brozan v. Brozan, 93-2369 (La. App. 1 Cir. 6/24/94), 638 So.2d 1176. However, the legislative amendments indicate a clear intent to foster an equal sharing of custody when it is feasible and in the best interests of the children. We believe that the best interest of the child remains the paramount concern in making custody determinations; however, that interest must be balanced with a parent’s right to equally share the physical custody of the child where feasible. See Bynog v. Bynog, 95-173 (La.App. 3d Cir. 7/26/95), 663 So.2d 86. [Footnote omitted.]

Remson v. Remson, 672 So.2d at 412.

IsAt the time this matter was tried in July of 1996, the parties’ minor child was nearly [720]*720four years old. While the distance between the parties involved a six or seven hour drive by car, Ms. Jessen testified that there are approximately five flights a day from Baton Rouge to Austin via Dallas on American Eagle, a subsidiary of American Airlines. While she is required to fly on a standby basis, she and her son may do so for five dollars per person each way. In light of the particular facts of this case, and inasmuch as the child was not yet of suitable school age, we cannot say that the parents’ distance from one another precludes a fifty-fifty sharing of physical custody. See, Evans v. Lungrin, 96-576, p. 8 (La.App. 3rd Cir. 12/11/96); 686 So.2d 67, 71.

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Bluebook (online)
697 So. 2d 717, 97 La.App. 1 Cir. 0287, 1997 La. App. LEXIS 1726, 1997 WL 349483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jessen-v-jessen-lactapp-1997.