Schelldorf v. Schelldorf

568 So. 2d 168, 1990 WL 140231
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1990
Docket21706-CA
StatusPublished
Cited by18 cases

This text of 568 So. 2d 168 (Schelldorf v. Schelldorf) 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
Schelldorf v. Schelldorf, 568 So. 2d 168, 1990 WL 140231 (La. Ct. App. 1990).

Opinion

568 So.2d 168 (1990)

Mary Cavender SCHELLDORF, Plaintiff-Appellee,
v.
David Warren SCHELLDORF, Defendant-Appellant.

No. 21706-CA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 1990.

*169 Sockrider, Bolin & Anglin by D. Rex Anglin, Shreveport, for defendant-appellant.

Stephen K. Hearn, Jr., Ruston, for plaintiff-appellee.

Before FRED W. JONES, Jr., SEXTON and NORRIS, JJ.

SEXTON, Judge.

Defendant-appellant David Schelldorf appeals a district court judgment awarding *170 sole custody of their minor child to plaintiff-appellee Mary Schelldorf with only restricted visitation privileges for him. Additionally, he argues that the district court abused its discretion in awarding his ex-wife alimony pendente lite, in awarding more child support than is warranted under the circumstances, and in casting him for all costs of the district court proceeding. We affirm in part, reverse in part, amend in part, and remand for further proceedings.

The parties met when plaintiff moved to Sundance, Wyoming, to work as a registered nurse. Defendant is originally from Sundance and worked on his family ranch which is owned by a Subchapter S corporation. They met approximately two weeks after her arrival in Sundance and married some six months later.

When they first married, the parties lived in the rent house which the plaintiff occupied prior to their marriage. Several months later, however, they moved into one of the houses located on the ranch property.

A series of disagreements arose between the plaintiff and her father-in-law, variously involving her horses, her dog, her choice of religion, and an acceptable site on the ranch to build a home for the young couple. Although testimony by the parties seemed to attribute the resulting disagreements and personality conflicts to different factors and to lay the blame for those problems at different feet, it is undisputed that the plaintiff did not care for her in-laws and it would appear that the feelings were somewhat mutual.

Not long after marrying, the parties moved to Louisiana where the plaintiff was employed as a nurse at a hospital in Ruston and the defendant worked for local corporations, concluding with the Prescalite Manufacturing Company at an annual salary of approximately $25,000. On March 17, 1985, the parties had a daughter who was one month shy of three years old at the time of her father's departure on February 23, 1988.

The evidence at trial seems to indicate that the parties experienced a number of marital difficulties throughout the years, culminating in their separation when the defendant left Louisiana and returned to Sundance where he resumed work on the family ranch.

Plaintiff filed suit, seeking a separation on the basis of defendant's abandonment. Defendant reconvened, alleging fault of the plaintiff. Neither party's fault is at issue in this appeal.

Following a three-day court hearing, and after taking the matter under advisement, the district court ruled in favor of the plaintiff, awarding her sole custody of their daughter, with defendant's visitation to take place only at the home of the plaintiff or such other residence or location as she should designate and, further, that such visitation would be restricted to the confines of Lincoln Parish, Louisiana. Additionally, plaintiff was awarded $500 per month as alimony pendente lite and $500 per month in child support.

Defendant argues the abuse of the district court's discretion in awarding the plaintiff sole custody, in awarding her alimony pendente lite, in awarding an excessive amount of child support, and in ordering him to pay all court costs.

CUSTODY AND VISITATION

The child's father presents two distinct issues for our consideration in this regard. He first argues that the district court abused its discretion in awarding the mother the sole custody of the child. He asserts he is equally well-qualified to be the domiciliary parent. The father concedes that the presumption of joint custody does not apply since one of the parties resides in another state. Alternatively, he argues that, should this court disagree with him regarding the custody issue, the district court abused its discretion in only allowing severely restricted visitation. We will address these matters separately.

A district court's award of custody is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Risher v. Risher, 511 So.2d 1220 (La.App. 2d Cir. *171 1987). The linchpin of custody determinations is the best interest of the child. LSA-C.C. Art. 146.

The evidence indicated that the child was born in Louisiana and was less than three years old when her father left the state at the time of his physical separation from the mother. Since that time, he has had only limited contact with the child and has exercised visitation with the child only when in the state for judicial proceedings in this matter below. The mother has raised the child alone for the last two years with child care assistance from her mother and has shouldered most of the financial burden of supporting the child. Finally, Sundance, Wyoming, and Ruston, Louisiana, are approximately six hours apart when one travels by a combination of plane and automobile.

In Ezell v. Kelley, 513 So.2d 454 (La. App. 2d Cir.1987), appeal after remand, 535 So.2d 969 (La.App. 2d Cir. 1988), following his divorce from the mother, the father moved to Montana where he was employed as an outfitter/hunting guide. At the time of the divorce, he and the mother had entered into a consent judgment of joint custody giving the mother custody of the children during the school year and giving the father custody of the children during the summer. Following the first summer of the father's visitation, as the children were getting ready to return to the mother for the school year, the father filed suit to modify the joint custody arrangement. The district court granted the father's request, reversing the previous arrangement.

This court reversed the district court because the mother had raised the children since their birth and exercised physical custody for nine months following the separation and divorce, the children had a healthy relationship with the mother, stepfather, and grandparents and were doing well in school in Louisiana. Contrarily, the father's occupation kept him away from home for extended periods of time and the children would be required to attend a small school ten miles away, which would have required a four-wheel drive vehicle as school transportation in the winter. Finding the stability and continuity of the existing custody situation to be an important factor, this court reversed the district court and reinstated the previous custody arrangement.

Similarly, in this case, the child has been with the mother from the time of her birth and has spent the last two years in the sole custody of the mother. Further, the father's domicile and the mother's domicile are over 1000 miles apart, a distance which makes one of the purposes of joint custody, that is, frequent and continuing contact, extremely difficult.

We find no abuse of discretion in the district court's award of sole custody to the mother. Where one parent is attempting to remove a child from the court's jurisdiction, that parent must show that there is good reason for the move and that the move is in the child's best interest. Stewart v. Stewart, 525 So.2d 218 (La.App. 1st Cir.1988).

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

Related

Childers v. Floyd
608 F.3d 776 (Eleventh Circuit, 2010)
Stephenson v. Stephenson
847 So. 2d 175 (Louisiana Court of Appeal, 2003)
Harper v. Harper
764 So. 2d 1186 (Louisiana Court of Appeal, 2000)
Thomey v. Thomey
756 So. 2d 698 (Louisiana Court of Appeal, 2000)
Bell v. Bell
683 So. 2d 189 (District Court of Appeal of Florida, 1996)
State in Interest of Travers v. Travers
665 So. 2d 625 (Louisiana Court of Appeal, 1995)
Pollock v. Pollock
889 P.2d 633 (Court of Appeals of Arizona, 1995)
Rodgers v. Rodgers
643 So. 2d 764 (Louisiana Court of Appeal, 1994)
Brazan v. Brazan
638 So. 2d 1176 (Louisiana Court of Appeal, 1994)
McConathy v. McConathy
632 So. 2d 1200 (Louisiana Court of Appeal, 1994)
Hutto v. Kneipp
627 So. 2d 802 (Louisiana Court of Appeal, 1993)
Barto v. Barto
618 So. 2d 613 (Louisiana Court of Appeal, 1993)
Goodwin v. Goodwin
618 So. 2d 579 (Louisiana Court of Appeal, 1993)
Jenkins v. Jenkins
616 So. 2d 786 (Louisiana Court of Appeal, 1993)
Miguez v. Miguez
604 So. 2d 1056 (Louisiana Court of Appeal, 1992)
Ridings v. Ridings
595 So. 2d 343 (Louisiana Court of Appeal, 1992)
LeFebvre v. LeFebvre
589 So. 2d 66 (Louisiana Court of Appeal, 1991)
Pulley v. Pulley
587 So. 2d 116 (Louisiana Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
568 So. 2d 168, 1990 WL 140231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schelldorf-v-schelldorf-lactapp-1990.