Sawyer v. Sawyer

799 So. 2d 1226, 2001 WL 1345650
CourtLouisiana Court of Appeal
DecidedNovember 2, 2001
Docket35,583-CA
StatusPublished
Cited by10 cases

This text of 799 So. 2d 1226 (Sawyer v. Sawyer) 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
Sawyer v. Sawyer, 799 So. 2d 1226, 2001 WL 1345650 (La. Ct. App. 2001).

Opinion

799 So.2d 1226 (2001)

John David SAWYER, Plaintiff-Appellant,
v.
Melissa Diane SAWYER, nee Kelly, Defendant-Appellee.

No. 35,583-CA.

Court of Appeal of Louisiana, Second Circuit.

November 2, 2001.

*1228 Loomis & Dement, by Albert E. Loomis, III, Monroe, Counsel for Appellant.

Gregory S. Moore, Counsel for Intervenor Appellees, Vernon Sawyer and Nancy Sawyer.

McLeod Verlander, by Robert P. McLeod, Jr., Monroe, Counsel for Appellee.

Before NORRIS, STEWART and GASKINS, JJ.

STEWART, J.

The plaintiff, John David Sawyer ("John") appeals an award of custody and child support of the minor child, John David Sawyer, II ("John Jr."), and spousal support to Melissa Diane Sawyer ("Melissa"). John also appeals the trial court's finding of contempt as it relates to past due support. For the following reasons, we affirm.

FACTS

John and Melissa were married on March 6, 1993. There was no community property as per a pre-marital agreement. Their only child, John Jr., was born October 25, 1995. On January 18, 2000, Melissa left the matrimonial domicile and took John Jr. with her. John filed for divorce *1229 on February 14, 2000, requesting custody of John Jr. Melissa reconvened seeking custody and interim periodic child support. Central to this case was the dispute surrounding the actual amount of income and benefits John received from managing several companies for his parents and from the companies he individually owned. After considerable testimony concerning the extent of each party's income, the trial court found that John had income far in excess of the approximately $24,000 annual income he argued should be the measure of his income for the purpose of fixing support. Consequently, the trial court awarded Melissa primary custody of John Jr. and fixed child support at $1,438.00 per month, and interim periodic support to Melissa of $3,275.00 to run from the date of initial request to 180 days past judgment of divorce. Subsequent to the order granting custody and support, Melissa filed a rule for contempt and a judgment of past due child support and interim periodic spousal support. The trial court rendered judgment for Melissa on July 17, 2001, in the amount of $78, 571.25. That judgment has been consolidated with the instant appeal.

DISCUSSION

Custody Award

The best interest of the child is the paramount consideration in child custody cases. La. C.C. art. 131; Verret v. Verret, 34,982 (La.App. 2nd Cir 5/9/01), 786 So.2d 944; McIntosh v. McIntosh, 33,908 (La.App. 2nd Cir.8/31/00), 768 So.2d 219. La. C.C. art. 134 provides that the factors to be utilized in determining the best interest of the child in a custody dispute may include the following:

(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 aga 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 court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. *1230 Rogers v. Stockmon, 34,327 (La. App. 2nd Cir.11/1/00), 780 So.2d 386. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the court. Hill v. Hill, 34,104 (La.App. 2nd Cir.1/24/01), 777 So.2d 1263.

Underlying the trial court's great discretion in child custody cases is its opportunity to better evaluate the credibility of witnesses. Accordingly, the trial court's determination of custody issues is afforded great weight and will not be disturbed on appeal absent an abuse of discretion. Hill v. Hill, supra.

John contends that the trial court erred in awarding Melissa primary custody of John Jr. He asserts that Melissa has demonstrated a "total unwillingness" to allow him to spend any time with his child. John complains that despite his best efforts to contact his son, he was been hampered by the lack of cooperation from Melissa.

John believes that Melissa's attempts to sabotage his relationship with his son by not letting him see the boy resulted in court appointed expert, Dr. Daniel Prior's, conclusion that the boy was more comfortable with his mother than with him (John) and his subsequent recommendation that Melissa be the domiciliary parent.

Further, John alleges that Melissa was involved in a series of affairs starting with Kevin Ward before reuniting with her first husband, Kevin Kelly, and that John Jr. was exposed to danger through her relationship with Kevin Kelly because Kelly was an abusive alcoholic. John contends that Melissa has spent time carousing and partying with Kelly in the presence of John Jr. John asserts that Melissa's relationship with Ward began while they were still married and this adultery is not a good indicator of her moral fitness as custodial parent.

The trial court thoroughly considered the factors enumerated under La. C.C. art. 134 and the credibility of the witnesses and determined that while joint custody would be awarded, Melissa should be the domiciliary parent. Through twelve pages of his judgment, the trial judge notes that the balance of the testimony from a multitude of witnesses including, former wives, former husbands, bank officers, psychologists, neighbors, and employees pointed to a pattern that indicated that the best interests of the child would be served by allowing him to remain with his mother. The court concluded that any problem associated with John not being able to see his child was caused by his own neglect. The court noted that Melissa's relationship with Kevin Ward, while ill timed, did not demonstrate any lack of moral fitness or wrongdoing on her part. Moreover, the joint custody plan of the trial court provides John adequate opportunity to interact with his son. The findings of the court were not manifestly erroneous. This assignment is without merit.

Child and Spousal Support

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brossett v. Brossett
195 So. 3d 471 (Louisiana Court of Appeal, 2015)
McClanahan v. McClanahan
169 So. 3d 587 (Louisiana Court of Appeal, 2015)
Mulkey v. Mulkey
108 So. 3d 116 (Louisiana Court of Appeal, 2012)
Gray v. Gray
55 So. 3d 826 (Louisiana Court of Appeal, 2011)
Scott v. Scott
989 So. 2d 290 (Louisiana Court of Appeal, 2008)
Kees v. Kees
992 So. 2d 568 (Louisiana Court of Appeal, 2008)
Richardson v. Richardson
974 So. 2d 761 (Louisiana Court of Appeal, 2007)
Mizell v. Mizell
839 So. 2d 1222 (Louisiana Court of Appeal, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
799 So. 2d 1226, 2001 WL 1345650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sawyer-v-sawyer-lactapp-2001.