Lindner v. Lindner

569 So. 2d 173, 1990 WL 157578
CourtLouisiana Court of Appeal
DecidedOctober 16, 1990
Docket90 CA 0634
StatusPublished
Cited by13 cases

This text of 569 So. 2d 173 (Lindner v. Lindner) 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
Lindner v. Lindner, 569 So. 2d 173, 1990 WL 157578 (La. Ct. App. 1990).

Opinion

569 So.2d 173 (1990)

Nita Lynne LINDNER
v.
John William LINDNER, II.

No. 90 CA 0634.

Court of Appeal of Louisiana, First Circuit.

October 16, 1990.

*174 Sylvia Roberts, Baton Rouge, for plaintiff-appellee Nita Lynne Lindner.

John W. Lindner, II, New Orleans, in pro per.

Before LOTTINGER, CARTER, JJ., and DOHERTY,[*] J. Pro Tem.

CARTER, Judge.

This is an appeal from a trial court judgment, awarding plaintiff sole custody of the minor child, setting child support payments, and awarding arrearages.

FACTS

Plaintiff, Nita Lynne Lindner, and defendant, John William Lindner, II, were married on July 4, 1976. One child, Lydia Lynn Lindner, was born of their marriage. By judgment dated May 24, 1982, the parties were divorced. In 1986, the parties entered into a joint custody plan, making plaintiff the primary domiciliary parent and defendant the secondary domiciliary parent. The plan also set forth defendant's child support obligations, which included monthly payments of $200.00 plus the payment of certain educational, medical, and leisure activity expenses.[1] The joint custody plan was incorporated into the judgment on February 28, 1986.

On March 8, 1989, plaintiff filed the instant rule for modification, arrearages, and contempt. After a hearing, the trial judge determined that plaintiff was entitled to sole custody of Lydia because the evidence established discord and lack of communication between the parties, which sufficiently *175 rebutted the presumption that joint custody was in the best interest of the minor child. The trial judge also determined that defendant pay child support of $650.00 per month, retroactive to March 15, 1989, with a credit for any amounts paid. Child support payments were reduced to $250.00 for the months of June and July, during which time defendant has visitation rights. Additionally, the trial judge awarded plaintiff arrearages of $1,432.50 and cast both parties for their respective attorney's fees and costs.[2] The trial judge rendered judgment on October 16, 1989, which judgment was signed on October 19, 1989.

From this adverse judgment, defendant appeals, assigning the following errors:

1. The trial court erred in awarding sole custody to the appellee.
2. The trial court erred in ordering the child support payments retroactive to March 15, 1989.
3. The trial court erred in ordering appellant to make child support payments in the amount of $250.00 during June and July, during which months the minor child resides with appellant.[3]

Plaintiff answered defendant's appeal, seeking an increase in the amount of child support and requesting that defendant be cast for costs at the trial court and on appeal.[4]

CUSTODY PLAN

LSA-C.C. art. 157 directs that "in all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146." LSA-C.C. art. 146 E provides that changes in custody shall be awarded according to the "best interest of the child." Joint custody is presumed to be in the best interest of the child. LSA-C.C. art. 146 C. This presumption may be rebutted only by a showing that joint custody is not in the best interest of the child, after a consideration of the factors listed in LSA-C.C. art. 146 C(2). Best interest of the child is the paramount consideration in child custody matters, including those involving change of custody. Meredith v. Meredith, 521 So.2d 793 (La.App. 2nd Cir. 1988); Foy v. Foy, 505 So.2d 850 (La.App. 2nd Cir.1987); Dungan v. Dungan, 499 So.2d 149 (La.App. 2nd Cir.1986).

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. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). However, where no considered decree of custody has been rendered, the "heavy burden" rule set forth in Bergeron does not apply. The test to be applied in such cases is best interest of the child. Milligan v. Milligan, 559 So.2d 6 (La.App. 1st Cir.1990); Stewart v. Stewart, 525 So.2d 218 (La.App. 1st Cir.1988); Meredith v. Meredith, 521 So.2d at 796; Risher v. Risher, 511 So.2d 1220 (La.App. 2nd Cir.1987).

Additionally, if the presumption established by LSA-C.C. art. 146 is to be overcome, the burden of rebutting such presumption lies with the party opposing joint custody. Owen v. Gallien, 477 So.2d 1240 (La.App. 3rd Cir.1985). The article 146 presumption only compels the judge to award joint custody in those cases where other things are equal; or where there is insufficient evidence to rebut the presumption; or whenever neither parent alone would be able to manage a sole custody *176 arrangement, and where it cannot be shown that it would be detrimental to the child to remain in parental custody. Effectively, the presumption only provides the judge with a first choice, which must be rejected in the face of evidence which tends to disprove the conclusion. In such a case, it becomes necessary for the other party to reestablish the propriety of the presumption's conclusion. Turner v. Turner, 455 So.2d 1374 (La.1984).

Every child custody case must be decided based on its own particular circumstances. Great weight is given to the trial court's decision, which will not be overturned absent a showing of an abuse of discretion. Everett v. Everett, 433 So.2d 705 (La.1983); Milligan v. Milligan, 559 So.2d at 8; Meredith v. Meredith, 521 So.2d at 796; Cassidy v. Cassidy, 514 So.2d 1198 (La.App. 1st Cir.1987), writ denied, 517 So.2d 814 (La. 1988).

In the instant case, the original joint custody decree was stipulated. No evidence was adduced concerning parental fitness for custody. Thus, the joint custody decree was not a considered decree, and the test to be applied in modifying the custody award is best interest of the child. See Milligan v. Milligan, 559 So.2d at 8; Stewart v. Stewart, 525 So.2d at 221; Dungan v. Dungan, 499 So.2d at 151.

After a thorough reading of the record and the reasons for judgment assigned by the trial judge, we are convinced that the decision of the trial judge is correct. Specifically, we find that the trial judge properly applied the "best interest of the child" test. In refusing to continue the joint custody award and awarding plaintiff sole custody, the trial judge articulated that the discord and lack of communication between the parties sufficiently rebutted the presumption of joint custody. We find no abuse of discretion in the instant case. There was sufficient evidence in the record for the trial court to conclude that the communication and interaction needed for the success of a joint custody plan cannot be effected between the parties and that plaintiff is the parent most able to cope with Lydia's day to day care during the school year. See Turner v. Turner, 455 So.2d at 1380-1381, and Eiswirth v. Eiswirth, 500 So.2d 817 (La.App. 1st Cir.1986), writ denied, 502 So.2d 111 (La.1987).

RETROACTIVITY OF CHILD SUPPORT AWARD

LSA-R.S. 9:310 provides as follows:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mizell v. Stone
181 So. 3d 842 (Louisiana Court of Appeal, 2015)
Rozetta Mizell v. Juston Stone
Louisiana Court of Appeal, 2015
Decoux v. Decoux
815 So. 2d 1002 (Louisiana Court of Appeal, 2002)
Miller v. Miller
799 So. 2d 753 (Louisiana Court of Appeal, 2001)
Franklin v. Franklin
763 So. 2d 759 (Louisiana Court of Appeal, 2000)
Ellinwood v. Breaux
753 So. 2d 977 (Louisiana Court of Appeal, 2000)
Nichols v. Nichols
747 So. 2d 120 (Louisiana Court of Appeal, 1999)
Kuhl v. Kuhl
715 So. 2d 740 (Louisiana Court of Appeal, 1998)
Matthews v. Matthews
633 So. 2d 342 (Louisiana Court of Appeal, 1993)
Alford v. Alford
610 So. 2d 923 (Louisiana Court of Appeal, 1992)
Beard v. Beard
599 So. 2d 486 (Louisiana Court of Appeal, 1992)
Stanley v. Stanley
592 So. 2d 862 (Louisiana Court of Appeal, 1991)
Scott v. Clark
583 So. 2d 938 (Louisiana Court of Appeal, 1991)
Testa Distributing Co., Inc. v. Tarver
584 So. 2d 300 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
569 So. 2d 173, 1990 WL 157578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindner-v-lindner-lactapp-1990.