Romanowski v. Romanowski

873 So. 2d 656, 2004 WL 324965
CourtLouisiana Court of Appeal
DecidedFebruary 23, 2004
Docket2003 CU 0124
StatusPublished
Cited by21 cases

This text of 873 So. 2d 656 (Romanowski v. Romanowski) 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
Romanowski v. Romanowski, 873 So. 2d 656, 2004 WL 324965 (La. Ct. App. 2004).

Opinion

873 So.2d 656 (2004)

Robert Patrick ROMANOWSKI
v.
Sherry Lane ROMANOWSKI.

No. 2003 CU 0124.

Court of Appeal of Louisiana, First Circuit.

February 23, 2004.

*657 John N. Samaha, Baton Rouge, for Plaintiff-Appellee Robert Patrick Romanowski.

Brent K. Delee, Baton Rouge, for Defendant-Appellant Sherry Lane Romanowski.

Before: PARRO, McDONALD, and CLAIBORNE,[1] JJ.

PARRO, J.

A mother appeals from a trial court judgment, which designated the minor *658 children's father as the domiciliary parent, awarded her child support based on a finding that she was voluntarily unemployed, and failed to award her interim periodic spousal support. For the following reasons, we amend in part, and as amended, we affirm.

Facts and Procedural History

Sherry Lane Romanowski (Sherry) and Robert P. Romanowski (Robert) married in 1997. Two children were born of this marriage: Mallory on February 3, 1998, and Nicholas on January 27, 1999. Sherry also had two teenage daughters from a prior marriage. After separating, Robert filed a petition for divorce on March 12, 2002, seeking sole custody of the minor children. Sherry responded by filing an answer and reconventional demand in which she sought a divorce under LSA-C.C. art. 102 based on an allegation that the parties had begun living separate and apart on March 1, 2002, and had not reconciled since then. Additionally, she requested custody and visitation in accordance with the Post-Separation Family Violence Relief Act, LSA-R.S. 9:361 et seq., child support, and interim periodic spousal support. Subsequently, Sherry filed a rule for interim child custody, interim child support, and interim periodic spousal support. In her rule, Sherry alleged that she was not required to obtain employment, since she cared for the parties' minor children under the age of five.

In an interlocutory judgment, the parties stipulated that physical custody of the children would be with Sherry during the week and Robert on the weekends. Robert was responsible for payment of day care expenses. The parties reserved the right to litigate any of the issues set forth in the stipulated judgment without having to show a change in circumstances. Approximately three months later, a second stipulated interlocutory judgment was entered allowing the parties to share custody, in the interim, on a week-to-week basis with Robert providing monthly child support of $750 and Sherry taking care of the children for Robert while he worked.

At the trial of this matter on September 6, 2002, the court determined that it was in the best interest of the minor children to continue the shared custody arrangement and named Robert as the domiciliary parent. In determining the amount of child support, the court assigned a monthly income of $1,905 to Sherry, resulting in a monthly award of $381 in her favor. The issue of interim periodic spousal support was before the trial court at this time; however, the judgment is silent on this issue. Sherry appealed, contending that the trial court erred in assigning $1,905 in monthly income to her for the purpose of calculating child support, since she was at home caring for the parties' three and four-year-old children, in designating Robert as the domiciliary parent, and in failing to order interim periodic spousal support.

Domiciliary Parent Designation

In the absence of an agreement, the court shall award custody to the parents jointly. LSA-C.C. art. 132. To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. LSA-R.S. 9:335(A)(2)(b). In a decree of joint custody, the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown. LSA-R.S. 9:335(B)(1).

The primary consideration in a child custody determination is always the best interest of the child. LSA-C.C. art. 131. LSA-C.C. art. 134 enumerates the following 12 nonexclusive factors that are relevant in determining the best interest of the child:

*659 (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 love, 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 best interest of the child test under LSA-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. Street v. May, 35,589 (La.App. 2nd Cir.12/5/01), 803 So.2d 312, 315. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Craft v. Craft, 35,785 (La.App. 2nd Cir.1/23/02), 805 So.2d 1213, 1217.

The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court'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. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Stephens v. Stephens, 02-0402 (La.App. 1st Cir.6/21/02), 822 So.2d 770, 774; Hodnett v. Hodnett, 36,532 (La.App. 2nd Cir.9/18/02), 827 So.2d 1205, 1209.

Sherry argues that the trial court was manifestly erroneous in designating Robert as the domiciliary parent of their two minor children, since the children were in her physical custody the majority of the time after the parties separated, specifically 65 percent of the time. Although the testimony does in fact support her contention, in that she cared for the children while Robert was at work when he had physical custody of the children, such arrangement was not ordered by the judgment that is being appealed and was subject to change at the insistence of either party without court involvement.

Sherry does not otherwise attack the trial court's weighing and balancing of the factors listed in LSA-C.C. art. 134, nor does she contend that the designation of the father is not in the best interest of the children.

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Cite This Page — Counsel Stack

Bluebook (online)
873 So. 2d 656, 2004 WL 324965, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romanowski-v-romanowski-lactapp-2004.