Nichols v. Nichols

747 So. 2d 120, 1999 WL 755996
CourtLouisiana Court of Appeal
DecidedSeptember 22, 1999
Docket32,219-CA
StatusPublished
Cited by24 cases

This text of 747 So. 2d 120 (Nichols v. Nichols) 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
Nichols v. Nichols, 747 So. 2d 120, 1999 WL 755996 (La. Ct. App. 1999).

Opinion

747 So.2d 120 (1999)

Klareenca Marria T.H. NICHOLS, plaintiff-Appellant,
v.
Richard Dean NICHOLS, Defendant-Appellee.

No. 32,219-CA.

Court of Appeal of Louisiana, Second Circuit.

September 22, 1999.

*121 Dimos, Brown, Erskine & Burkett by Lynne O. Bice, Monroe, Counsel for Appellant.

McLeod Verlander by Robert P. McLeod, Jr., Monroe, Counsel for Appellee.

Before BROWN, STEWART and PEATROSS, JJ.

STEWART, J.

The appellant, Klareenca Marria T.H. Nichols, R.N. ("Kris"), appeals the judgment of the Fourth Judicial District Court, Parish of Morehouse, Judge D. Milton Moore, III, awarding joint custody of the minor child to both parents with the father, Dr. Richard Dean Nichols ("Richard"), designated as the domiciliary parent and visitation to Kris pursuant to the Joint Custody Implementation Plan. We affirm in part, reverse in part and remand.

FACTS

The parties, Kris and Richard, were married in Bastrop, Louisiana on August 12, 1994. One child was born of the marriage, Richard Thorne Nichols ("Thorne"), on November 3, 1995. The parties were physically separated at the time of Thorne's birth, but resumed living together in February of 1996. In May 1996, Kris moved to Selma, Alabama with Thorne and her two children from a previous marriage. *122 In November 1996, Kris filed a petition for divorce seeking sole custody of Thorne. The parties were divorced on October 2, 1997. The issues of custody and support were not addressed in the divorce decree.

After both parties filed rules seeking sole custody, the court appointed a neutral expert, Dr. Tony Young ("Dr.Young"), to evaluate both parents and to make a recommendation to the court regarding custody. The rules for custody and child support were heard on April 13, 16 and 24 of 1998. Due to the volatile relationship between the parents regarding visitation, Richard filed a motion to supplement the record with additional evidence and for interim visitation order pending the court's custody ruling. Richard alleged that Kris had constantly interfered with his visitation rights.

The trial court granted Richard's motion for interim custodial rights on June 18, 1998. The judgment, filed July 3, 1998, provided specific times for Richard to have physical custody of Thorne for the next sixty days, including a week long visitation with Thorne pending the court's final custody determination.

After considering all of the factors enumerated in La. C.C. Art. 134, the trial court filed written reasons for judgment on September 10, 1998 and the judgment was filed in the matter on September 21, 998. The judgment awarded joint custody of the minor child to both parents with Richard being awarded the domiciliary custody and visitation to Kris pursuant to the Joint Custody Implementation Plan. The court found Kris to be most unwilling to allow Richard a reasonable opportunity to have a meaningful visitation with Thorne. The custody plan gives Kris visitation one week a month from September through May and two weeks each June, July and August until the child is enrolled in school. When the child reaches school age, Kris shall have Thorne two weekends a month from September through May and two weeks each June, July, and August, with specific holiday visitation provided for. From this judgment, Kris appeals and lodges two assignments of error.

DISCUSSION

A trial court's determination regarding child custody is to be afforded great deference on appeal and will not be disturbed absent a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3rd Cir.5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365; State in the Interest of C.G., 24,631 (La.App. 2d Cir.1992), 609 So.2d 1049; writ denied, 93-0009 (La.2/5/93); 612 So.2d 85. Every child custody case must be decided based only on its own particular facts and circumstances. McKinley v. McKinley, 25,365 (La.App.2d Cir.1/19/94), 631 So.2d 45; Lindner v. Lindner, 569 So.2d 173 (La.App. 1st Cir. 1990). On appellate review, the determination of the trial court in establishing or modifying custody is entitled to great weight and will not be disturbed absent a clear showing of an abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988); Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

The fact finder's great discretion extends to its assessment of expert testimony. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). The weight to be given expert testimony depends, ultimately, on the facts on which it is based, as well as the professional qualifications and experience of the expert. Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229; Thomas v. Petrolane Gas Service, 588 So.2d 711 (La.App. 2d Cir.1991). For an expert opinion to be valid and to merit much weight, the facts on which it is based must be substantiated by the record; if it is not, the trial court may reject it. Gould v. Gould, 28,996 (La.App.2d Cir.1/24/97), 687 So.2d 685, 690; Meany v. Meany, supra; Rogers v. Roch, 95-242 (La.App. 5th Cir.10/18/95), 663 So.2d 811.

In furtherance, the factors in La. C.C. Art. 134 are provided as a guide to *123 the court in making the fundamental finding as to what disposition is in the best interest of the child. The list of factors is nonexclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. Because of the tribunal's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate functions, great deference is accorded to the decision of the court. McKinley v. McKinley, supra; Windham v. Windham, 616 So.2d 276 (La.App. 2d Cir.1993)

DESIGNATION OF RICHARD AS DOMICILIARY PARENT

In assignment of error number one, Kris urges that the trial court erred in designating Richard as the domiciliary parent because the court did not give sufficient weight to Kris' role as the sole care-giver throughout Thorne's life and that the court disregarded the court appointed expert's recommendation that Thorne not be away from Kris for more than a night or two until he was five years old.

Richard counters that although the primary caregiver status is important, it is by no means controlling. Kris erroneously argues that because Dr. Young felt the caregiver role was important the trial court should have allowed that to be the determinative factor. Of equal or greater importance under the jurisprudence is the willingness and ability of each parent to encourage and support a close relationship between the child and the other parent. The trial court recognized that Kris has been unwilling to allow Richard to have meaningful time with Thorne. Furthermore, Kris unilaterally took Thorne to Alabama and away from his father and thereby became the sole caregiver.

In the case sub judice, the trial court considered the evidence and testimony presented, including that of Dr. Young. Dr. Young conducted psychological evaluations on Richard and Kris consisting of the Minnesota Multiphasic Personality Inventory (MMPI) and interviews. As for Kris' allegations about Richard's drinking or physically harming Thorne, Dr. Young testified that in looking back over the testing record he did not see any indication or any propensity to violence ... and that the McAndrews scale suggests that Richard is at the clinical cutoff for a propensity to alcohol addiction.

Dr.

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747 So. 2d 120, 1999 WL 755996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nichols-v-nichols-lactapp-1999.