Lincecum v. Lincecum

812 So. 2d 795, 2002 WL 356322
CourtLouisiana Court of Appeal
DecidedMarch 6, 2002
Docket01-1522
StatusPublished
Cited by7 cases

This text of 812 So. 2d 795 (Lincecum v. Lincecum) 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
Lincecum v. Lincecum, 812 So. 2d 795, 2002 WL 356322 (La. Ct. App. 2002).

Opinion

812 So.2d 795 (2002)

John Glynn LINCECUM
v.
Shelly Marie LINCECUM.

No. 01-1522.

Court of Appeal of Louisiana, Third Circuit.

March 6, 2002.

*796 Brian D. Cespiva, Gravel, Cespiva, & Wilkerson, Alexandria, LA, for Plaintiff/Appellant John Glynn Lincecum.

Michael Hathorn Davis, Davis & Saybe, Alexandria, LA, for Defendant/Appellee Shelly Marie Lincecum.

Court composed of SYLVIA R. COOKS, MARC T. AMY, and GLENN B. GREMILLION, Judges.

GLENN B. GREMILLION, Judge.

In this case, the plaintiff, John Glynn Lincecum, appeals the judgment of the trial court maintaining the custody arrangement stipulated to by he and the defendant, Shelly Marie Lincecum. For the following reasons, we affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

John and Shelly were married in June 1992. Of this marriage, Julie Marie Lincecum was born in September 1992. John filed for divorce from Shelly in May 1996. In that petition, John set forth a joint custody arrangement agreed to by himself and Shelly, which did not name either as the domiciliary parent of Julie. A judgment of divorce was granted in June 1996, implementing the custody agreement stipulated to by the parties.[1] Thereafter, in January 2001, John filed a rule to show cause for custody urging that circumstances had changed since the first agreement, *797 specifically, that Shelly had failed to maintain a stable, happy, and healthy home environment for the child. John requested that the joint custody arrangement continue, but that he be named domiciliary parent.

Shelly answered, and as plaintiff in rule, also claimed that the previous joint custody arrangement needed to be modified to name her as the primary domiciliary parent. Shelly claimed that the change in circumstances included: Julie's advancing age, her need to be in one household for longer periods of time, and her preference to be with her mother; Shelly's more accommodating work schedule and her ability to provide more "hand's on" parenting than John, who must leave Julie's care to others; and, the addition of another child in John's household which defers attention away from Julie, who is the only child in Shelly's household. Shelly further requested an increase in child support.

After a hearing on the matter in March 2001, the trial court rendered a judgment maintaining the original joint custody agreement of the parents. It further did not name either party domiciliary parent and did not increase the child support payment to Shelly. This appeal by John followed.

ISSUES

John claims the trial court abused its discretion in failing to designate him as the domiciliary parent and in failing to implement a new plan of joint custody, which would contemplate Julie being in his home particularly during school weeks.

LAW AND DISCUSSION

A trial court's determination of child custody is entitled to great weight on appeal and will not be disturbed absent a clear abuse of discretion. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756. When the trial court has made a considered decree of permanent custody, the petitioning party bears the difficult burden of proving that the continuation of the present custody situation is so deleterious to the child that it justifies a modification of the custody arrangement, or of proving by clear and convincing evidence that any harm likely to be caused by the change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). A considered decree is one in which evidence as to parental fitness has been received by the trial court. Oliver v. Oliver, 95-1026 (La.App. 3 Cir. 3/27/96), 671 So.2d 1081.

When a considered decree has not been rendered, but the parties have stipulated to an agreement without the court considering parental fitness, a lesser burden applies. In order to modify a custody arrangement, the movant must prove that 1) a material change in circumstances has occurred, and 2) that the new custody arrangement would be in the best interest of the child. Id.

In this case, the original custody arrangement was by stipulation of the parties and is, therefore, not a considered decree. Thus, the latter burden of proof applies.

John argues that La.R.S. 9:335(B)(1) required that the trial court name a domiciliary parent. We disagree. La.R.S. 9:335(B)(1) states: "In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown." However, an examination of La.Civ.Code arts. 131 and 132 leads us to believe that, when parents have agreed on a custody arrangement that the trial court finds is in the best interest of the child, it need not designate a domiciliary parent. La.Civ.Code *798 art. 131 states: "In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." La.Civ.Code art. 132 (emphasis added) states:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Comment (c) to Article 132 states: "The second sentence of this Article governs the decision whether to award joint custody. The legal effects of joint custody, once it is awarded, are addressed in R.S. 9:335 (1993)."

Therefore, the trial court is obligated to adhere to the requirements of La.R.S. 9:335(B)(1) only if it finds that a change of circumstance occurred and the best interest of the child requires it to formulate and award joint custody. In this case, John and Shelly agreed not to establish a domiciliary parent, but to essentially be co-domiciliary parents. Thus, if the trial court finds that the agreement between the parties is in the best interest of the child, it shall award custody in accordance with the agreement.

The evidence at trial showed that John and Shelly confected the original custody agreement in which Shelly had Julie for four days and he had her for three days of every week, alternating week days so that each parent would have her for the weekend. John testified that the original agreement was orally modified sometime in 1996 to provide him with four more days of custody per month to make the split of time even. He also agreed to pay Shelly $25 more per month in child support (for a total of $175 per month). He said this arrangement had been in effect up until the time of trial.

John argued that he should be named the domiciliary parent because he could provide a more stable home environment. He testified that he has been married to his current wife, Patricia (Trisha), for four years and that they have a two-year-old son, Thomas. John stated that Julie is a healthy third-grader and that he and his wife assist her with her homework, attend parent-teacher conferences, and take her to church on the Sundays that they have her. John went on to testify that he has been the head coach of Julie's softball team for four years and the assistant coach for one year.

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Cite This Page — Counsel Stack

Bluebook (online)
812 So. 2d 795, 2002 WL 356322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lincecum-v-lincecum-lactapp-2002.