Key v. Key

519 So. 2d 319, 1988 WL 3531
CourtLouisiana Court of Appeal
DecidedJanuary 20, 1988
Docket19237-CA
StatusPublished
Cited by15 cases

This text of 519 So. 2d 319 (Key v. Key) 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
Key v. Key, 519 So. 2d 319, 1988 WL 3531 (La. Ct. App. 1988).

Opinion

519 So.2d 319 (1988)

Dr. Gary Stephen KEY, Plaintiff-Appellee,
v.
Gayle Ann Hager KEY, Defendant-Appellant.

No. 19237-CA.

Court of Appeal of Louisiana, Second Circuit.

January 20, 1988.

*320 Tyler & Johnson by D.G. Tyler, for defendant-appellant.

Kennedy, Goodman & Donovan by Robert J. Donovan, Jr., for plaintiff-appellee.

Before MARVIN, NORRIS and LINDSAY, JJ.

MARVIN, Judge.

In this action to change joint custody of children, the mother appeals a judgment granting the father sole custody of the two children, terminating the father's support obligations, and assessing each party one-half the cost of litigation and future counseling.

Notwithstanding the father's contention that the appeal is moot, we reach the merits of the case. We amend to decree joint custody with the father as domiciliary parent. We affirm the amended judgment and remand to allow the litigants to detail and implement a joint custody plan under supervision of the trial court.

PROCEDURAL HISTORY; MOOTNESS OF APPEAL

The marriage of the father and mother in 1975 produced two children; a daughter, Kellie, in 1977 and a son, Stephen, in 1979. The parties legally separated in 1983 and joint custody was agreed on and decreed with the mother being the domiciliary parent. A divorce in 1984 continued the joint custody decree and support order.

A judgment in March 1986 reduced the father's monthly support obligation from $600 to $525 per child and added these provisions to the joint custody decree:

Either parent may remove residence from the Parish of Caddo. At least thirty (30) days prior to such removal, the parent changing residence shall request a modification of this plan from the remaining parent ... If no agreement is reached, the party changing residence shall request a modification from the court.
The residence of the children shall not be removed at any time from Caddo Parish without an appropriate order of this court.

About a month later and alleging his knowledge of the mother's intent to marry a resident of, and move to, Ohio, the father sought to modify joint custody and have himself decreed to be residential custodian. After a two-day hearing, the trial court rendered a judgment on August 22, 1986, that was signed on February 6, 1987. This judgment rejected the father's demand to modify joint custody, but stated:

*321 provided, however, that should [the mother] marry any person who lives outside Caddo Parish ... then upon the happening of that event, [the father] will be and he is at that time awarded sole custody

. . . . .

The mother had married her Ohio finance in December 1986 after that judgment was rendered but before it was signed.

On January 29, 1987, the father sought sole custody on allegations about the mother's second marriage. The only evidence adduced at a brief hearing on February 13, 1987, was about the mother's second marriage. Obviously relying also on evidence adduced in the August 1986 hearing, the trial court rendered judgment on February 13, which was signed on February 19, 1987, and which decreed sole custody to the father and visitation privileges to the mother.

The mother's motion and order for appeal, filed and signed on February 27, 1987, mentions only the February 6 and not the February 19 judgment. The father seeks here to dismiss the appeal of the February 6 judgment on the grounds that it was superceded and rendered moot by the February 19 judgment. Because of the described circumstances and the jurisprudential policy favoring appeals, we do not agree with the father.

As a general rule, judgments must be certain and not be based on any contingency. Pepe v. Tournage, 128 So.2d 56 (La. App. 1st Cir.1961). See also 49 C.J.S. § 73. The procedural history of this case explains the reasons for and supports the policy requiring that judgments be certain. The first judgment, in our opinion, is improper in that, at the very least, it implies that a second judgment following the mother's remarriage is perhaps unnecessary and merely redundant. To compound the procedural anomaly, the mother had remarried even before the February 6 judgment was signed and after the father sought sole custody.

La.CCP Art. 2161 governs the dismissal of appeals for "irregularities" that are "imputable to the appellant." We cannot hold the appellant responsible because the procedural anomaly is largely attributable to the unfortunate wording and the timing of the signing of the first judgment. See Gremillion v. Rinaudo, 240 So.2d 237 (La. App. 1st Cir.1970).

The February 19 judgment relates to the February 6 judgment and cannot be based solely upon the evidence presented at the February 13 hearing. The January 29, 1987, rule filed by the father and the hearing of that rule in February are merely extensions of the first rule and the first hearing in August 1986. We maintain the appeal because the two February 1987 judgments are so interrelated and merged. See Smith v. Smith, 398 So.2d 549 (La. App. 1st Cir.1979), writ denied. We shall consider, as the trial court did, the entire record, which was compiled in August 1986 and in February 1987, in this appeal. See Garrett v. Garrett, 324 So.2d 494 (La.App. 2d Cir.1975).

EVIDENTIARY FACTS

The father is a dental surgeon in Shreveport. The mother had not been employed other than as a homemaker and nurturing parent until after the 1983 separation when she worked part-time for a brief period for a Shreveport law firm.

The evidence taken in August 1986 revealed the family and individual circumstances before and after the husband and wife separated.

Each party alleged and attempted to prove the other unfit because of adulterous conduct and alcohol abuse. Ultimately, however, the trial court found that both the mother (in Ohio) and the father (in Louisiana) would provide good homes for the children, but concluded the stress and uncertainties resulting from a move to Ohio would not be in the best interest of the children. At the time of the hearing Kellie was about nine years old and Stephen was seven years old. Both the mother and father were planning a marriage to another in August and the court heard testimony concerning their respective plans.

Three experts in the area of psychology and family counseling testified. Dr. *322 Staats, a psychologist, was appointed by the court to evaluate the two children, the mother and father, and their respective fiances, who were Mr. Setzer and Ms. McCormick. As part of the evaluation, Dr. Staats administered psychological tests of the adults and the children.

Kellie was found to be extremely well adjusted while Stephen's adjustment to the parents' separation was average. Kellie was thought to be better able to adjust to living with a parent of the opposite sex than Stephen. Dr. Staats noted Kellie's desire to remain with her mother, that she identified more with her mother, and that it would be in her best interest to remain with her mother. Stephen desired to remain in Shreveport with his father. Dr. Staats believed that it would be in Stephen's best interest to do so.

Dr. Staats found the father to be compulsive and manipulative. He believed the father's personality evaluation indicated "whitewashing" or distortion of circumstances by the father. Dr. Staats found the mother to be impulsive and overly emotional in her discipline of the children.

Each prospective spouse was found to be well-adjusted and a suitable step-parent candidate. Mr.

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Bluebook (online)
519 So. 2d 319, 1988 WL 3531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/key-v-key-lactapp-1988.