O'Brien v. O'Brien

704 So. 2d 933, 1997 WL 772113
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket30001-CA
StatusPublished
Cited by16 cases

This text of 704 So. 2d 933 (O'Brien v. O'Brien) 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
O'Brien v. O'Brien, 704 So. 2d 933, 1997 WL 772113 (La. Ct. App. 1997).

Opinion

704 So.2d 933 (1997)

Richard O'BRIEN, Plaintiff-Appellee,
v.
Rebekah G. Bayles O'BRIEN, Defendant-Appellant.

No. 30001-CA.

Court of Appeal of Louisiana, Second Circuit.

December 10, 1997.

*934 Susan D. Scott, Shreveport, for Appellant.

Sheila Wharton, Shreveport, for Appellee.

Before STEWART, GASKINS and PEATROSS, JJ.

STEWART, Judge.

The defendant, Rebekah G. O'Brien, appeals the judgment of the Twenty-Sixth Judicial District Court, Parish of Bossier, Judge Dewey E. Burchett, Jr., awarding joint custody of the parent's minor son to both the mother and father and designating the father as domiciliary parent. More specifically, Mrs. O'Brien appeals the portion of the judgment naming Mr. O'Brien as domiciliary parent. We affirm in part, reverse in part and remand.

FACTS

Richard and Rebekah O'Brien were married on February 20, 1991. Mr. O'Brien has been in active military duty since the marriage. Mrs. O'Brien gave birth to Daniel Alexander O'Brien, on June 17, 1994, in Turkey. Their last matrimonial domicile was Bossier, Louisiana.

From May through August 1996, Mr. O'Brien was temporarily assigned to Biloxi, Mississippi and came home several weekends during this period. On July 26, 1996, Mr. O'Brien came home for the weekend to find the house in disarray, every bed in the house with dirty sheets, a vase of roses and other circumstances that concerned him. Mr. O'Brien confronted Mrs. O'Brien about what had been going on in the house. Mrs. O'Brien admitted that the things that Mr. O'Brien saw indicated that someone had been there but denied that she was having an affair, and claimed it was her mother having an affair. As a result of the confrontation, Mrs. O'Brien called the police, but no police report was filed. Mrs. O'Brien left the house. Later that day, she returned to pick up their son at Mr. O'Brien's request because Mr. O'Brien was ill.

During the next two weeks, while Mr. O'Brien was on duty in Biloxi, Mrs. O'Brien moved out of the matrimonial domicile with their son. When Mr. O'Brien returned home on weekend leave, he discovered that Mrs. O'Brien had moved.

Richard O'Brien filed a petition for divorce under La.C.C. Art. 102 on August 26, 1996, seeking joint custody and designation as the domiciliary parent of the couple's minor son. On August 29, 1996, Rebekah O'Brien filed a rule for determination of incidental matters, asking for custody, support, alimony pendente lite and use of community movables and immovables.

A hearing was held on October 10, 1996. The trial court awarded the parties joint custody of their minor son designating the father as domiciliary parent. The mother was awarded physical custody of her son every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., six weeks in the summer, and half of the holidays and birthdays. The court further ordered that when the child was with the mother there was to be no smoking by any member of the household in which she resided or she would not have visitation. The judgment was filed on February 12, 1997. Other relief was granted which is not at issue on appeal.

FAILED TO DESIGNATE MRS. O'BRIEN DOMICILIARY PARENT AND PROPERLY WEIGH LA.C.C. ART. 134

In assignment of error number one, Mrs. O'Brien contends that the trial court erred in failing to designate her as the domiciliary parent and in failing to consider and give appropriate weight to the factors involved in determining the best interest of the minor child as set forth in La.C.C. Art. 134.

*935 Each child custody case must be viewed in light of its unique facts and circumstances with the principal goal of reaching a decision that embodies the best interest of the child. The appellate courts have reiterated the traditional rule that a trial court's custody award will not be disturbed absent a manifest abuse of discretion. Hickman v. Hickman, 459 So.2d 140 (La.App. 2d Cir. 1984). The factors in La.C.C. Art. 134 are provided as a guide to 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, 25,365 (La.App. 2 Cir. 1/19/94) 631 So.2d 45; Windham v. Windham, 616 So.2d 276 (La.App. 2d Cir.1993).

The record reveals that both parties agreed that there was no problem with joint custody. Neither party complains on appeal the trial judge erred in awarding them joint custody of the child, and his decision to do so was factually and legally sound. Therefore, the sole issue before this court is domiciliary custody.

In designating the domiciliary parent, for purposes of joint custody determination, consideration must be given to factors in La.C.C. Art. 134 and any other relevant factors. The principal consideration in every child custody case is the best interest of the child. There is love and affection between the child and both parents. The record supports finding that both parents love their son. The trial court's decision to designate the father as domiciliary parent was based upon factors in La.C.C. Art. 134 and other relevant factors, such as the social and economic stability of Mr. and Mrs. O'Brien. Mr. O'Brien is in the military. Although the father's military duty makes him subject to move, it should not be held against him. Mrs. O'Brien is unemployed and has not worked since the birth of the child. On the other hand, the mother is studying to be an EMT, which is laudable, but an EMT is also the kind of job with varied hours. Mrs. O'Brien affirmed that she would probably have to work the evening or night shift for six months as an EMT basic.

The court also considered the testimony of Mrs. O'Brien, who lives with her mother, her stepfather and her uncle in Dixie Inn, Louisiana. Mrs. O'Brien testified that if she were awarded custody she did not intend to stay with her mother. However, she also testified that "I have no other ways or means to get another place to stay. But I'm in the process of trying to look for a place." Under Mrs. O'Brien's current living conditions, the child sleeps with her. Mrs. O'Brien dismissed her request for possession of the matrimonial domicile. On the other hand, the father has a separate bedroom for the child to sleep in at the family home. The child would not have to be removed from his familiar home environment.

Mr. and Mrs. O'Brien testified regarding domestic problems in the home where Mrs. O'Brien currently lives with their son. During one instance, Mrs. O'Brien and her cousin were threatened by the cousin's abusive boyfriend which prompted her to call Mr. O'Brien to come get their son. By contrast, the child is not subjected to domestic problems in the father's household, and the environment appears stable, safe and secure. It is well settled that stability of environment is a factor to be taken into account in determining what is in the best interest of the child. Bailey v. Bailey, 527 So.2d 1030 (La.App. 2d Cir.1988), writ denied, 528 So.2d 565 (La. 1988); Pahal v. Pahal, 606 So.2d 1359 (La. App. 2d Cir.1992). There was testimony, but no medical evidence, regarding Mrs. O'Brien's smoking, the smoking in her mother's household and the impact upon the child's asthma or allergies. On the other hand, the father has a smoke-free environment.

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Bluebook (online)
704 So. 2d 933, 1997 WL 772113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-obrien-lactapp-1997.