Olivier v. Olivier

81 So. 3d 22, 2011 La. App. LEXIS 1343, 2011 WL 5401855
CourtLouisiana Court of Appeal
DecidedNovember 9, 2011
DocketNo. 2011 CU 0579
StatusPublished
Cited by5 cases

This text of 81 So. 3d 22 (Olivier v. Olivier) 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
Olivier v. Olivier, 81 So. 3d 22, 2011 La. App. LEXIS 1343, 2011 WL 5401855 (La. Ct. App. 2011).

Opinions

WELCH, J.

| ¾James Chad Olivier appeals a judgment that, among other things, awarded the parties joint custody of their minor child, designated Tonya R. Excho Olivier (now “Excho”) as the child’s domiciliary parent, and allocated James specific physical custodial periods.1 For reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

The parties were purportedly married on June 22, 2007; however, the marriage was subsequently declared absolutely null. See Olivier v. Olivier, 2009-2298 (La.App. 1st Cir.9/10/10), 2010 WL 3518054 (unpublished). The parties had one child, who was born on April 25, 2008, as a result of their relationship. Shortly after the child’s birth, Tonya filed a rule seeking sole custody of the child, or alternatively, that the parties be awarded joint custody of the child, that she be designated as the child’s domiciliary parent, and that James be awarded specific physical custodial periods. In response, James filed a reconven-tional demand seeking sole custody of the child, or alternatively that the parties be awarded joint custody of the child, that he be designated as the child’s domiciliary parent, and that Tonya be awarded specific physical custodial periods.

On June 17, 2008, the parties stipulated to an interim order of custody. Specifically, the parties agreed that they would have joint custody of the minor child; that Tonya would be designated as the child’s domiciliary parent; and that James would have physical custody of the minor child on Mondays, Wednesdays, and Fridays from 6:00 p.m. until 9:00 p.m., on alternating [25]*25Saturdays from 12:00 |sp.m. until 4:00 p.m., and on alternating Sundays from 10:00 a.m. until 2:00 p.m. This interim order further provided that the matters set forth therein were set without prejudice to either party and were temporary in nature.

Following this interim order, numerous pleadings were filed by both parties pertaining to modifications of the physical custodial arrangement for various reasons. Finally, on September 13 and 16, 2010, a trial pertaining to custody (initial setting) was held. Following trial, the trial court rendered judgment, which was signed on October 26, 2010, awarding the parties joint custody of the minor child; designating Tonya as the domiciliary parent; and allocating James physical custodial periods with the minor child on every other weekend from Friday at 5:30 p.m. until Sunday at 5:30 p.m., on Wednesday from 12:00 p.m. until Thursday at 6:00 p.m. during the week following his weekend visitation, and on alternating holidays.2

The judgment also provided that Tonya did not have to disclose or provide James with her home address, that James was to refrain from making any derogatory or personal comments about Tonya in his communications with her or in the presence of the minor child, and that neither party would be allowed to have a member of the opposite sex who was not a spouse or a family member spend the night while exercising physical custody. Additionally, the judgment ordered that the parties were to place the minor child on a consistent diet with regard to her current medical condition; that if the parties had any disagreements concerning the minor child, they should consult with their parenting coordinator; that the parties were to communicate with regard to doctor appointments for the minor child; and that Tonya was to contact a psychologist to be evaluated, to provide the psychologist with a copy of the custody evaluation performed by Dr. Alan Taylor, |4and to undergo any treatment recommended by that psychologist. From this judgment, James now appeals.

ASSIGNMENTS OF ERROR

On appeal, James argues that the trial court erred or abused its discretion in awarding joint custody with Tonya designated as the domiciliary and in its physical custody allocation because: (1) proper weight or consideration to the uncontra-dicted testimony and findings of Dr. Taylor, a psychologist, was not given; (2) the finding that Tonya’s personality disorders did not affect the child was inconsistent with the order for Tonya to undergo psychological evaluation and potential treatment; (3) Tonya’s testimony had no credibility and should not have been accepted by the trial court; and (4) La. C.C. arts. 131 and 134 and La. R.S. 9:335 were not applied or applied incorrectly. James also asserted that the trial court abused its discretion in not allowing James to know Tonya’s physical address because that is where the child resides.

LAW AND DISCUSSION

Each child custody case must be viewed in light of its own particular set of facts and circumstances. Perry v. Monistere, 2008-1629, 2008-1630 (La.App. 1st Cir.12/23/08), 4 So.3d 850, 852. Louisiana Civil Code article 131 provides that “the court shall award custody of a child in accordance with the best interest of the child.” Thus, the paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 [26]*26So.2d 731, 738. In determining the best interest of the child, La. C.C. art. 134 provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child |filove, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The list of factors set forth in this article is non-exclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. La. C.C. art. 134, comment (b). Additionally, the “best interest of the child” test under La. C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 2006-0594 (La.App. 1st Cir.3/23/07), 960 So.2d 186, 191.

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Bluebook (online)
81 So. 3d 22, 2011 La. App. LEXIS 1343, 2011 WL 5401855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivier-v-olivier-lactapp-2011.