Pahal v. Taylor

965 So. 2d 574, 2007 WL 2428953
CourtLouisiana Court of Appeal
DecidedAugust 29, 2007
Docket42,698-CA
StatusPublished
Cited by2 cases

This text of 965 So. 2d 574 (Pahal v. Taylor) 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
Pahal v. Taylor, 965 So. 2d 574, 2007 WL 2428953 (La. Ct. App. 2007).

Opinion

965 So.2d 574 (2007)

James Carey PAHAL, Plaintiff-Appellee
v.
Debra Lynn TAYLOR, Pahal Sepulvado, Defendant-Appellant.

No. 42,698-CA.

Court of Appeal of Louisiana, Second Circuit.

August 29, 2007.

*575 McKeithen Law Firm, by Anita D. McKeithen, Shreveport, for Appellant.

Thomas Norman Thompson, Shreveport, for Appellee.

Before PEATROSS, DREW and LOLLEY, JJ.

DREW, J.

In this child custody matter, Debra Sepulvado appeals a judgment denying her request to be named domiciliary custodian of her 16-year-old son. We affirm the ruling of the learned trial court.

FACTS

James Pahal ("Pahal") and Debra Sepulvado ("Sepulvado") were married in 1988. In November of 1990, Sepulvado, who was six months pregnant, left Pahal and moved in with a high school boyfriend, who had been released from prison[1] that same month. In November of 1991, these parents each sought custody of their son, M.P.,[2] born in January of 1991.

Following a contested hearing, the trial court:

• granted joint custody, with Pahal designated as the domiciliary custodian;
• stated that it was in the best interests of M.P. for his father to be the domiciliary parent because of Sepulvado's affair with a twice convicted felon, a better opportunity for timesharing, Sepulvado's lack of credibility, Pahal's commitment to providing religious education for his son, and Pahal's better family support.[3]

On appeal, this court found no error in the awarding of domiciliary custody to Pahal. Pahal v. Pahal, 606 So.2d 1359 (La. App. 2d Cir.1992).

Because of non-traditional work schedules, the Joint Custody Implementation Plan ("JCIP"), was somewhat complicated:

• Sepulvado had physical custody of M.P. every other weekend from noon on Friday to noon on Monday.
*576 • On non-visitation weekends, she had physical custody on Monday from 9:00 a.m. to 8:00 p.m. if Pahal's work required him to be out of town on that day.
• On visitation weekends, Pahal was permitted to have custody of M.P. for a few hours on Sunday to take him to church for morning and evening services.
• In addition to physical custody during holidays, each party was to have three weeks of uninterrupted visitation during the summer.
• This court calculated that Sepulvado had approximately 125-135 days of physical custody per year under the JCIP.

Several amendments were made to the JCIP by this court in the 1992 appeal. Sepulvado had requested six weeks of physical custody during the summer and at all times when Pahal was out of town. In order to give the parties a more equal sharing of physical custody, this court amended the plan to give Sepulvado six weeks of physical custody during the summer, with Pahal having two weekends of visitation during this period.

This court also amended the JCIP to afford Sepulvado the opportunity to take M.P. to morning and/or evening church services on Sundays when she had physical custody, with the requirement that she notify Pahal of her intent to do so before noon of the preceding Friday.

On October 9, 2002, the trial court increased Sepulvado's child support.

It also modified the JCIP as per agreement by the parties:

• During the school year, Sepulvado had physical custody of M.P. on every other weekend from 5:00 p.m. on Friday to Sunday at 5:00 p.m.
• If she did not plan to take M.P. to church, then she was to inform Pahal of this by noon on Saturday, and then he could pick up M.P. at 9:00 a.m. on Sunday and return him later that day at 1:00 p.m.
• During the summer, weekend visitation was suspended, and Sepulvado was to have uninterrupted physical custody for five consecutive weeks beginning the Monday after Father's Day.
• Although weekend visitation would not resume until the weekend after school started, M.P. could request weekend summer visitation.

On November 15, 2005, the mother filed a rule for change of custody, alleging that she should be designated as the domiciliary parent because Pahal had neglected to get and refused to pay for medical treatment for M.P., and because M.P. wanted to live with his mother.

On January 17, 2006, the father responded by filing a rule requesting:

• allocation of non-covered healthcare expenses,
• increased child support,
• modification of the JCIP concerning custody of M.P. during the 4th of July holiday, and
• transportation of M.P. by the party with physical custody.

Following a hearing on the rules, the trial court maintained Pahal as the domiciliary parent.

However, the court wisely ordered that:

• Each party timely provide the other with all dental, medical, and school information either receives about their son.
• Sepulvado be listed on his school records as M.P.'s mother and as an additional person allowed to pick him up.
*577 • M.P. be allowed to have a cell phone provided by his mother while at his father's, by which to communicate with his mother,[4]
• Pahal to have physical custody of M.P. every Sunday from 9:00 a.m. to 1:00 p.m. for morning church services, and from 30 minutes before and 30 minutes after Sunday evening church services.
• Sepulvado to have physical custody of M.P. on every other weekend from 5:00 p.m. on Friday to 8:00 a.m. on Monday. If this schedule is disrupted by the holidays, then her weekend visitation would resume on the first weekend she is off work after the holidays.
• Sepulvado to have physical custody of M.P. on every other Wednesday from 5:00 p.m. until Thursday at 5:00 p.m. beginning on February 14, 2007, and on every other Tuesday from 5:00 p.m. until Wednesday at 5:00 p.m. beginning on February 21, 2007.
• Physical custody of M.P. is to be alternated for the Spring Break, 4th of July and Labor Day holidays.
• Sepulvado is not to allow M.P. to have access to mature-rated video games while he is at her home.

The trial court denied any additional modification of the JCIP, increased Sepulvado's child support obligation, allowed Pahal to declare M.P. as a dependent on his income tax returns, and ordered each party to bear a portion of M.P.'s necessary and noncovered dental, medical, orthodontic and ophthalmic expenses.

DISCUSSION

Sepulvado contends on appeal that the trial court erred in failing to modify custody to designate her as the domiciliary parent. She further contends that the Bergeron standard for changing a considered custody decree should not be applied in this case. She has not asked us to alter the visitation schedule.

When a trial court has made a considered decree of permanent custody, the party seeking a change in custody 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 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).

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Related

Jones v. Jones
63 So. 3d 1074 (Louisiana Court of Appeal, 2011)
Brown v. Mock
987 So. 2d 892 (Louisiana Court of Appeal, 2008)

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Bluebook (online)
965 So. 2d 574, 2007 WL 2428953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pahal-v-taylor-lactapp-2007.