Ketchum v. Ketchum

882 So. 2d 631, 2004 WL 1936513
CourtLouisiana Court of Appeal
DecidedSeptember 1, 2004
Docket39,082-CA
StatusPublished
Cited by17 cases

This text of 882 So. 2d 631 (Ketchum v. Ketchum) 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
Ketchum v. Ketchum, 882 So. 2d 631, 2004 WL 1936513 (La. Ct. App. 2004).

Opinion

882 So.2d 631 (2004)

Bridget Lyons KETCHUM, Plaintiff-Appellant
v.
Chad Daniel KETCHUM, Defendant-Appellee.

No. 39,082-CA.

Court of Appeal of Louisiana, Second Circuit.

September 1, 2004.

*634 Susan D. Scott, for Appellant.

Smith & Jacobs, APLC, by E. Charles Jacobs, for Appellee.

Before GASKINS, PEATROSS & DREW, JJ.

PEATROSS, J.

In this modification of custody action, the father, Chad Ketchum, sought modification of an existing Joint Custody Implementation Plan, or stipulated judgment, providing for joint custody of his two-year-old daughter, Katelin. After a hearing, the trial court found that modification of the custody arrangement was warranted and awarded shared custody with alternating week physical custody. The trial court further ordered that the mother, Bridget Lyons (Ketchum) Stanford, who was named domiciliary parent in the prior custody plan, be removed as domiciliary parent and that she and Chad be "co-domiciliary parents," provided that Chad remain married and moved to the area where Bridget and the child reside. Bridget now appeals. For the reasons stated herein, we reverse and remand.

FACTS

Bridget and Chad were married in 1999 and lived in Springhill, Louisiana. They separated in 2001 due to Chad's infidelity. Bridget was pregnant at the time of the separation and Katelin Ketchum was born in October 2001. Chad filed for final divorce and for shared custody of the baby in January 2002. Days later, Bridget filed for final divorce, custody and child support and asked for an injunction against Chad to stop harassing and threatening calls. She also asked for supervised visitation due to Chad's alleged erratic behavior and unstable emotional state. In March 2002, a Joint Custody Implementation Plan was approved by the trial court granting joint custody with Bridget as domiciliary parent and visitation in favor of Chad every other weekend, every Wednesday overnight, alternating holidays and two to three weeks in the summer. At that time, Chad was living in Sarepta with his parents and was traveling to work in Ashdown, Arkansas. Bridget, a middle school teacher, still lived in the former marital home in Springhill.

Chad married Kelly in February 2003, at which time he moved into Kelly's home in Shreveport. He continued to commute every day to work in Ashdown. In July 2003, after failed discussions with Bridget about reconciliation,[1] Chad filed suit to obtain equal physical custody of Katelin by alternating weeks of physical custody. He also sought to modify child support and for he and Bridget to be "co-domiciliary parents" instead of Bridget holding the domiciliary parent status. At trial, Chad indicated that he and Kelly were planning to move to the Springhill area depending on the court's finding regarding physical custody. *635 The court imposed a gradual scale of shifting physical custody to work the child into an alternating week arrangement. Specifically, Chad's period of physical custody was immediately increased to Wednesday through Monday every other week and was to increase one day every two months or so until, by June 1, Katelin would be on an alternating week living arrangement. The trial court further ruled that, if Chad was still married and had moved to the Springhill area by June 1, the parents would then become "co-domiciliary parents."

Apparently, Chad and Kelly did, in fact, move to Sarepta in April 2004. Bridget also remarried — to a man she had known since high school and had dated for more than a year and a half prior to the marriage.

DISCUSSION

On appeal, Bridget raises five assignments of error essentially challenging the trial court's findings that a change in circumstances materially affecting the welfare of the child had occurred warranting a modification of the custody plan to an equally shared arrangement of alternating weeks of physical custody was in Katelin's best interest. She argues that Chad failed to meet his burden of proof on either of those requirements and further submits that equally shared custody arrangements are not mandated by law, nor are they presumed to be in the child's best interest. Bridget also challenges her removal as domiciliary parent and the re-designation of "co-domiciliary parents."

Modification of custody

The nature of the original custody award dictates the burden of proof a party has when seeking to modify a prior permanent custody award. There are two types of custody awards. The first is a stipulated judgment, wherein the parties consent to a custodial arrangement. The second is a considered decree, which is rendered after the trial court has received evidence of parental fitness to exercise care, custody and control of a child. When the original custody decree is a stipulated judgment, the party seeking modification must prove that there has been a change in circumstances materially affecting the welfare of the child since the original decree and that the proposed modification is in the best interest of the child. White v. Kimrey, 37,408 (La.App.2d Cir.5/14/03), 847 So.2d 157, writ denied, 03-1943 (La.8/1/03), 849 So.2d 534, citing Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731; Touchet v. Touchet, 36,881 (La.App.2d Cir.1/29/03), 836 So.2d 1149; Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/7/01), 803 So.2d 975. See also Arbuckle v. Arbuckle, 36,616 (La.App.2d Cir.12/11/02), 833 So.2d 1119.

Generally, the determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Roberie v. Roberie, 33,168 (La.App.2d Cir.12/8/99), 749 So.2d 849; Warlick v. Warlick, 27,389 (La.App.2d Cir.9/29/95), 661 So.2d 706.

In the case sub judice, because the parties were subject to a joint stipulated custody decree, the burden of proof to change the agreement regarding Katelin's custody would, therefore, be on Chad to show that (1) there has been a material change of circumstances affecting the welfare of the child since the original custody decree was entered and (2) the proposed modification is in the best interest of Katelin. Joint custody determinations are governed by La. R.S. 9:335 which provides, in pertinent part, that:

(A)(1) In a proceeding in which joint custody is decreed, the court shall render *636 a joint custody implementation order except for good cause shown. (2)(a) The implementation order shall allocate the 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. (b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

A joint custody arrangement does not necessarily require an equal sharing of physical custody. Ellinwood v. Breaux, 32,730 (La.App.2d Cir.3/1/00), 753 So.2d 977; Nichols v. Nichols, 32,219 (La.App.2d Cir. 9/22/99), 747 So.2d 120. The primary consideration should be substantial time rather than strict equality of time as mandated by the legislative scheme providing for joint custody of children. Ellinwood, supra; Boyd v. Boyd, 26,292 (La.App.2d Cir.12/7/94), 647 So.2d 414. As noted by the Ellinwood court, joint custody does not necessarily mean a 50/50 sharing of time. See also Nichols, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
882 So. 2d 631, 2004 WL 1936513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ketchum-v-ketchum-lactapp-2004.