Jones v. Jones

877 So. 2d 1061, 2004 WL 1418186
CourtLouisiana Court of Appeal
DecidedJune 25, 2004
Docket38,790-CA
StatusPublished
Cited by34 cases

This text of 877 So. 2d 1061 (Jones v. Jones) 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
Jones v. Jones, 877 So. 2d 1061, 2004 WL 1418186 (La. Ct. App. 2004).

Opinion

877 So.2d 1061 (2004)

Kay Pedigo JONES, Plaintiff-Appellee
v.
John Daniel JONES, Defendant-Appellant.

No. 38,790-CA.

Court of Appeal of Louisiana, Second Circuit.

June 25, 2004.

*1064 The Boles Law Firm by Robert Alan Breithaupt, Monroe, for Appellant.

Donald L. Kneipp, Monroe, for Appellee.

Before BROWN, PEATROSS, and MOORE, JJ.

BROWN, C.J.

This appeal arises out of rulings incidental to the divorce of Kay Cherie Pedigo *1065 Jones ("Cherie") and John Daniel Jones ("Danny"). For the reasons set forth below, we amend in part and, as amended, affirm.

Facts and Procedural Background

Danny and Cherie were married on November 18, 1994. Two children were born to the couple: a daughter, Shelby, on September 3, 1997, and a son, Benjamin, on February 28, 2000. After several separations and reconciliations during the course of their marriage, the parties separated in August 2002 and Cherie filed for divorce that same month, seeking joint custody and designation as domiciliary parent, as well as awards of child and spousal support. In his answer, Danny filed a reconventional demand for divorce, sought domiciliary custody, and asserted that Cherie's fault should preclude an award of permanent spousal support.

An interim order was entered on November 19, 2002, providing that Cherie would have domiciliary custody of the children, with Danny having visitation on an alternating basis of three nights one week, two nights the next week.[1] Thereafter, on March 24, 2003, a second order was entered, awarding Cherie interim spousal support in the amount of $5,000 per month[2] and child support in the amount of $3,500 per month. A judgment of divorce was rendered on May 8, 2003.

A hearing was held over the course of several months in the summer of 2003. The trial court's written reasons were issued on October 31, 2003, and a judgment was signed and filed on November 24, 2003. The court's judgment provided for:

(1) joint custody, with Cherie as domiciliary parent and Danny having specified weekend, holiday and summer visitation;
(2) Danny to pay child support in the amount of $4,000 per month;
(3) Danny to maintain health insurance on the children and bear the cost of all medical, dental, prescription, and orthodontic expenses not covered by insurance;
(4) Danny to pay interim spousal support in the amount of $5,000 per month; and
(5) Cherie to pay $625 per month to Danny for use of the matrimonial home.

The judgment further found that Cherie was free from legal fault in the dissolution of the parties' marriage, although an award of permanent spousal support was not made at that time. It is from this judgment that Danny has appealed.

Discussion

Child Custody

The trial court's award of joint custody and designation of Cherie as domiciliary parent are not contested. Danny simply asserts that his time with the children is inadequate.

The trial court awarded Danny visitation with the children as follows: alternating weekend visitation during the school year from Friday after school until Sunday at 6:00 p.m.; three hours every Wednesday afternoon during the school year; most of the summer, except for three one-week periods and alternating weekends, during which the children will be with Cherie; and specified holidays.

Taking issue with the fact that the trial court's visitation schedule gives him only 102-106 overnight visits per year, Danny contends that his contact with the children is insufficient and asks this court to increase *1066 his visitation in accordance with the recommendations of Dr. E.H. Baker, the court-appointed psychologist.[3]

La. R.S. 9:335(2)(a) provides that in decrees of joint custody, the implementation order shall allocate time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents. Subsection (2)(b) further states that, to the extent it is feasible and in the best interest of the child, physical custody of the child should be shared equally.

The trial court's finding that joint custody is in the best interest of the child does not necessarily require an equal sharing of physical custody. Collins v. Collins, 36,629 (La.App.2d Cir.10/23/02), 830 So.2d 448; Craft v. Craft, 35,785 (La.App.2d Cir.01/23/02), 805 So.2d 1213; Nichols v. Nichols, 32,219 (La.App.2d Cir.09/22/99), 747 So.2d 120. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Collins, supra; Craft, supra; Ellinwood v. Breaux, 32,730 (La.App.2d Cir.03/01/00), 753 So.2d 977; Nichols, supra. Joint custody does not necessarily mean a fifty-fifty sharing of time. Collins, supra; Nichols, supra.

Each child custody case must be viewed in light of its unique facts and circumstances with the principal goal of reaching a decision that embodies the best interest of the child. Collins, supra; O'Brien v. O'Brien, 30,001 (La.App.2d Cir.12/10/97), 704 So.2d 933. A determination in each case will depend on the child's age, the parents' situations, and other factors relevant to that particular custody dispute. Craft, supra; Nichols, supra.

Regarding the testimony of an expert in a custody matter, after weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert. The weight given expert testimony is dependent upon the expert's professional qualifications and experience and the facts upon which the opinion is based. It is within the trial court's discretion to substitute common sense and judgment when such a substitution appears warranted upon the record as a whole. Derbigny v. Derbigny, 34,672 (La.App.2d Cir.04/06/01), 785 So.2d 989; Warlick v. Warlick, 27,389 (La.App.2d Cir.09/29/95), 661 So.2d 706.

The trial court's determination regarding child custody is entitled to great weight and will not be disturbed absent a clear abuse of discretion. Collins, supra; Craft, supra; Ellinwood, supra. As noted by the court in Wilson v. Wilson, 30,445 (La.App.2d Cir.04/09/98), 714 So.2d 35, an appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion.

As noted above, Danny feels that the trial court erred in not awarding visitation as recommended by Dr. Baker. An examination of the entirety of Dr. Baker's testimony, however, reveals that the psychologist backed away from his initial recommendation after evidence was presented which showed that Shelby's grades had suffered as a result of being with her father on school nights. Dr. Baker further testified that if Danny's co-parenting behavior did not improve, Shelby would continue *1067 to have problems. Dr. Baker opined, and the trial court found, given Danny's behavior over the course of these proceedings (refusal to allow Cherie telephone contact with the children and failure to share Shelby's testing and related school information with Cherie), that there was no indication that he would in fact change.

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Cite This Page — Counsel Stack

Bluebook (online)
877 So. 2d 1061, 2004 WL 1418186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-jones-lactapp-2004.