Joiner v. Joiner

619 So. 2d 581, 1993 La. App. LEXIS 1560, 1993 WL 127081
CourtLouisiana Court of Appeal
DecidedApril 21, 1993
DocketNo. 92-346
StatusPublished
Cited by2 cases

This text of 619 So. 2d 581 (Joiner v. Joiner) 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
Joiner v. Joiner, 619 So. 2d 581, 1993 La. App. LEXIS 1560, 1993 WL 127081 (La. Ct. App. 1993).

Opinions

DECUIR, Judge.

Both Wanda Hunt Joiner and Charles R. Joiner appeal the decision of the trial court modifying a joint custody judgment giving plaintiff, Dr. Charles R. Joiner, principal domiciliary parent status four and a half months of the year and increasing child support. We reverse in part, amend in part and remand with instructions.

FACTS

Wanda and Charles Joiner were divorced on February 1, 1989. They were granted joint custody of their minor son, Britten Michael Joiner, and Wanda was designated primary residential custodian of Britten. Charles was granted reasonable visitation with Britten subject to agreement between [582]*582the parties. A community property settlement was entered into whereby Charles paid most of the community debts, agreed to pay Wanda $200.00 a month until January 1,1991 and child support of $600.00 per month. Charles later married Grace Veal-Joiner who has one teenage daughter from a prior marriage.

On April 19, 1991, Charles filed a rule to show cause why full implementation of joint custody should not be granted and requested a reduction in child support. Charles requested $300.00 a month child support go to Wanda and $300.00 be deposited in an educational fund. On May 23, 1991, Wanda filed an answer to Charles’ petition stating that joint custody was already in effect and that she should continue to be designated the principal domiciliary parent and specific visitation should be set in a plan of joint custody implemented by the court. She argued there should be no reduction in child support but requested an increase in child support on the basis that a material change took place in the income of the parties, i.e. Charles remarried and Charles’ wife’s contribution to the community income should be considered in determining child support under the Louisiana Child Support Guidelines.

On September 16, 1991, Charles filed an answer to the reconventional demand entering a general denial and filed an exception of no cause of action. The custody matter was heard the same day. On September 23, 1991, the trial court rendered reasons for judgment of custody. Also, the child support matter was heard, at which time Charles objected to any enlargement of the pleadings. On September 26, 1991, the trial court rendered reasons for judgment in the support issue. The formal judgment on custody and child support was signed October 23, 1991. The trial court increased child support from $600.00 per month to $995.00 per month when Britten resides with Wanda and awarded Wanda $450.00 per month when Britten resides with his father, Charles. The trial court also appointed Wanda the principal domiciliary parent only from October 1 to May 15 and appointed Charles principal domiciliary parent of Britten from May 15 to October 1.

Both parties filed applications for a new trial and/or reargument. A hearing was held on those applications for a new trial, and a judgment denying both applications was signed December 10, 1991. Wanda applied for writs of certiorari to the Third Circuit Court of Appeal which was denied. Wanda filed a devolutive appeal on December 30, 1991, and on March 31, 1992 Charles answered the appeal.

Wanda asserts three assignments of error. First, Wanda alleges the trial court committed manifest error in modifying the custody judgment in which Wanda was designated the principal domiciliary parent. Wanda alleges the court awarded principal domiciliary parent status to Charles for part of the year without Charles alleging a factual change of circumstances in the petition warranting a modification of the judgment and without requiring Charles to carry the heavy burden of proving custody in Wanda was so deleterious as to warrant a change of custody. Wanda further asserts the trial court committed manifest error in failing to apply Louisiana Child Support Guidelines in determining child support based on documented evidence of factors under Louisiana Child Support law. Her last assignment of error is the trial court committed manifest error in failing to make child support retroactive to the date of the filing of the child support claim.

Charles asserts two assignments of error. Charles alleges the trial court erred in applying La.R.S. 9:315.14 and increasing the child support obligation from $600.00 per month to $955.00 per month without any evidence reflecting additional needs of the child. The second assignment of error is the trial court erred in granting Wanda $450.00 per month child support while Britten resides with Charles. We divide the assignments of error into two topics: custody and child support. Charles also requests damages for frivolous appeal.

CUSTODY

Wanda contends the trial court erred in modifying the joint custody decree [583]*583which designated Wanda as primary domiciliary custodian. The trial court modified the custody decree by designating Charles as primary domiciliary custodian 4½ months of the year and Wanda as primary domiciliary custodian the remaining V-k months. This court notes that Charles did not request a modification of the joint custody decree to designate him as primary domiciliary custodian. The original custody decree in the case sub judice was a “considered decree.” Therefore, the burden of proof rule enunciated by our Supreme Court in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) is applicable. That rule states:

"... When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation 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. See Bankston vs. Bankston, 355 So.2d 58 (La.App. 2d Cir.1978); Languirand vs. Languirand, 350 So.2d 973 (La.App. 2d Cir.1977). Cf. Unif. Marriage and Divorce Act, 9A U.L.A. § 409 (1979) ...” Bergeron, supra, at page 1200.

See Miller v. St. Clergy, 535 So.2d 563 (La.App. 3rd Cir.1988).

The trial court stated in Reasons for Judgment that both parents had equal qualifications to care for the child and there was no reason both parents should not have equal access to the Child. The trial court failed to articulate a change of circumstances, failed to articulate any deleterious circumstance, and failed to state any other reason to justify modification of the joint custody decree. We conclude that Charles failed to carry his burden of proving a change of circumstances sufficient to justify a modification of the joint custody decree. Accordingly, we reverse the judgment of the trial court in this respect and reinstate Wanda Joiner as primary domiciliary custodian of the minor child of the marriage.

CHILD SUPPORT

Charles alleges the trial court erred in increasing the child support obligation from $600.00 per month to $955.00 per month without any evidence of additional needs of the child and erred in granting Wanda $450.00 per month child support while Britten resides with Charles. Wanda alleges the trial court erred in failing to apply the Louisiana Child Support Guidelines properly and erred in failing to make the child support retroactive to the date of the filing of the child support claim.

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Bluebook (online)
619 So. 2d 581, 1993 La. App. LEXIS 1560, 1993 WL 127081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joiner-v-joiner-lactapp-1993.