Rupert v. Swinford

671 So. 2d 502, 1995 WL 588362
CourtLouisiana Court of Appeal
DecidedOctober 6, 1995
Docket95 CA 0395
StatusPublished
Cited by13 cases

This text of 671 So. 2d 502 (Rupert v. Swinford) 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
Rupert v. Swinford, 671 So. 2d 502, 1995 WL 588362 (La. Ct. App. 1995).

Opinion

671 So.2d 502 (1995)

Aimie Jo RUPERT
v.
Mark D. SWINFORD.

No. 95 CA 0395.

Court of Appeal of Louisiana, First Circuit.

October 6, 1995.

*504 Ernest S. Anderson, Slidell, for Plaintiffs-Appellees.

Richard A. Swartz, Slidell, for Defendant-Appellant.

Before LeBLANC, WHIPPLE and FOGG, JJ.

FOGG, Judge.

In this custody case, the child's father appeals a judgment awarding custody jointly to him and the child's maternal grandmother. For the following reasons, we affirm.

On February 3, 1993, Aimee Jo Rupert[1] filed suit against Mark D. Swinford seeking to prove his paternity of her child, Derrick C. Rupert, to obtain child support, and to obtain sole custody of Derrick. The parties were not married when Derrick was born on June 30, 1987, nor did they marry thereafter. In a judgment signed on March 25, 1993, the mother and father stipulated that joint custody should be awarded with the mother as the domiciliary parent and that the parents would alternate physical custody of Derrick each month, with the father's month beginning in April. On May 13, 1993, the court signed a judgment decreeing that Mark Swinford acknowledged paternity of Derrick and that the father and mother were granted joint custody, with the physical custody alternating monthly.

On May 25, 1994, the father filed a rule to modify custody, seeking sole custody. The mother and the child's maternal grandmother, Gale L. Rupert, responded with a motion for contempt and change of custody. In their motion, the mother and grandmother prayed for custody to be awarded jointly to the mother and grandmother. Following a hearing on August 10 and 12, 1994, the trial court rendered judgment awarding joint custody to the grandmother and the father, naming the grandmother the domiciliary custodian and granting the father visitation on alternate weekends; the judgment gave the mother visitation every other Sunday between 1:00 p.m. and 6:00 p.m. on the weekends when the father did not have Derrick. From this judgment, the father appeals.

On appeal, the father contends that the trial court erred in its interpretation of LSA-C.C. art. 133, which authorizes an award of custody to a non-parent; in its award of joint custody to the father and grandmother without a specific finding that sole custody to him would result in substantial harm to Derrick; and in failing to award sole custody to the father based on the evidence.

LSA-C.C. art. 133 states, "If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment." Therefore, to award custody to the grandmother and father jointly, the trial court must determine that joint custody to the mother and father would result in substantial harm to Derrick, that sole custody to the mother would result in substantial harm to Derrick, and that sole custody to the father would result in substantial harm to Derrick.

*505 Initially, on appeal, the father contends that because the court awarded joint custody to him and the grandmother, the court could not have determined that an award of sole custody to him would result in substantial harm to the child. This contention has no merit. Under LSA-C.C. art. 133, a finding that an award of sole custody to a parent would result in substantial harm to the child does not preclude that parent from being considered in a joint custody award with a non-parent. A court could determine that joint custody between the parent and non-parent would not result in substantial harm to the child and name as the domiciliary custodian another person with whom the child has been living in a wholesome and stable environment or any other person able to provide an adequate and stable environment, giving the parent visitation. Schloegel v. Schloegel, 584 So.2d 344 (La.App. 4th Cir. 1991); see also Revision Comments—1993 to LSA-C.C. art. 133, section (c).

The father next contends that the trial court erred by failing to state in its reasons for judgment that sole custody to the father would result in substantial harm to Derrick. Unlike prior civil code articles governing custody awards to non-parents, LSA-C.C. art. 133 does not require an express finding that sole custody to a parent would cause substantial harm to the child.[2] Furthermore, the judgment itself is controlling, not the reasons for judgment. Spalitta v. Silvey, 526 So.2d 471 (La.App. 1st Cir.), writ denied, 532 So.2d 115 (La.1988). Therefore, if the record supports the determination that an award of sole custody to the father would cause substantial harm to Derrick, the trial court's failure to articulate such a finding would not be legal error. See Edwards v. K & B., Inc., 26,002 (La.App. 2d Cir. 8/17/94), 641 So.2d 1040; Schloegel, 584 So.2d at 347. Thus, we will next consider whether the record supports the finding that an award of sole custody to the father would cause substantial harm to Derrick.

In a case such as this, where the father and mother stipulated to an award of joint custody, a party seeking to modify the existing custody arrangement must prove that a change in circumstances materially affecting the child's welfare has occurred since the original decree and that the modification proposed is in the best interest of the child. Connelly v. Connelly, 94-0527 (La. App. 1st Cir. 10/7/94), 644 So.2d 789. Additionally, a nonparent always bears a heavy burden of proof in a custody contest with a parent. Love v. Love, 536 So.2d 1278 (La. App. 3d Cir.1988). A parent cannot be deprived of custody except for compelling reasons supported by clear and convincing evidence. Creed v. Creed, 94-268 (La.App. 3d Cir. 12/21/94), 647 So.2d 1362; Pittman v. Jones, 559 So.2d 990 (La.App. 4th Cir.), writ denied, 565 So.2d 451 (La.1990).

Derrick was born on June 30, 1987, and was seven at the time of the custody hearing. The testimony established that Derrick lived in the grandmother's home with his parents immediately after his birth and then off and on during the next seven years. For periods of time, Derrick, his mother and his father lived together in various residences, including the grandmother's residence. During the 1992-1993 school year, Derrick lived with his grandmother; during the following school year, he lived with his father.

Derrick testified, stating that he was living with his father at the time of the hearing and everything was "fine." According to Derrick, his father worked during the day and an aunt kept him after school until his father returned home. Derrick testified that he saw his grandmother every other weekend. According to Derrick, his father did not smoke around him "a lot," and when asked by the judge if his father smoked marijuana, *506 Derrick testified that he did not know what the judge was talking about and that he never saw his father roll cigarettes.

The grandmother testified that she worked as an accountant and lived alone in a three bedroom home she owns in Slidell. She testified that Derrick told her he had three homes—his mother's, his father's and hers. Derrick keeps his dog at the grandmother's house and has his own room there. The grandmother testified that since Derrick's birth, he has been in her home almost every weekend, and that she has "had" him more than anyone else.

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Bluebook (online)
671 So. 2d 502, 1995 WL 588362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rupert-v-swinford-lactapp-1995.