Schuchmann v. Schuchmann

768 So. 2d 614, 2000 WL 710499
CourtLouisiana Court of Appeal
DecidedJune 1, 2000
Docket00-094
StatusPublished
Cited by7 cases

This text of 768 So. 2d 614 (Schuchmann v. Schuchmann) 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
Schuchmann v. Schuchmann, 768 So. 2d 614, 2000 WL 710499 (La. Ct. App. 2000).

Opinion

768 So.2d 614 (2000)

Shawnna M. SCHUCHMANN (Loftin)
v.
John SCHUCHMANN.

No. 00-094.

Court of Appeal of Louisiana, Third Circuit.

June 1, 2000.

*615 Martha Ann O'Neal, O'Neal & Leavoy, DeRidder, Louisiana, Counsel for Defendant/Appellant: John Schuchmann.

John K. Anderson, Anderson & Westerchil, Leesville, Louisiana, Counsel for Plaintiff/Appellee: Shawnna Schuchmann (Loftin).

(Court composed of NED E. DOUCET, Jr., Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges).

DOUCET, Chief Judge.

Defendant, John Schuchmann, appeals a judgment of the trial court changing domiciliary custody of his minor son, Anthony M. Schuchmann, from himself to his ex-wife, Shawnna Schuchmann Loftin. We reverse the judgement of the trial court.

FACTS

John and Shawnna were married in the state of Washington July 17, 1993. At the time, John, who is in the military, was stationed at Ft. Lewis, Washington. A son, Anthony Michael, was born to the couple on January 17, 1994. Apparently, the marriage was a rocky one and the couple separated in September 1995. Shortly thereafter, in November 1995, John was transferred to Ft. Clayton, Republic of Panama. Shawnna and Anthony remained in Washington. About this same time, Shawnna renewed her acquaintance with Glen Loftin, a member of the U.S. Air Force, whom she describes as her high school sweetheart. In February 1996, Shawnna took Anthony and moved with Glen to Rosepine, Louisiana, where they set up house-keeping.

Sometime early in 1997, John learned that Shawnna was pregnant with Glen's child and finally agreed to a divorce. The parties agreed that John was the one who contacted and paid an attorney in Leesville. The attorney filed a petition for divorce, under the provision of La.Civ. Code art. 103(1), on Shawnna's behalf on February 25, 1997. Filed along with the petition for divorce was an acceptance of service of process which John had previously executed in Panama. In the divorce decree, which was granted March 7, 1997, John and Shawnna were granted joint custody of Anthony with John being designated "the primary custodial parent." Even though John was named primary custodial parent, Anthony continued to reside with Shawnna until John could make arrangements *616 for suitable housing, a nanny, and could get leave to return to the U.S. from Panama. The latter was in June of 1997. From June of 1997 through the judgment of the trial court rendered July 19, 1999, John was, in fact and in deed, the primary custodial parent of Anthony. Shawnna did have several periods of visitation during this two year period.

LAW AND DISCUSSION

Recently, in Roberie v. Roberie, 33,168 (La.App. 2 Cir. 12/8/99); 749 So.2d 849, our brethren of the second circuit recounted the law applicable to the case before this court stating:

The best interest of the child is the sole criterion to be met in awarding or modifying custody under La. C.C. art. 131. See also Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). When a trial court has made a considered decree of permanent custody, the party seeking to modify the decree 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, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35.
A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App.[2d Cir.]2/6/95), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96), 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La. App.2d Cir.5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.
. . . .
Where the Bergeron burden is inapplicable, the party seeking to modify the custody arrangement need only prove a change in circumstances since the original decree and prove that the new custody arrangement would be in the best interest of the child. Wilson, supra; Barnes, supra.
La. C.C. art. 134 outlines the factors in determining the best interest of a child:
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(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.
*617 (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.
Further, in determining what the best interest of the child is in a change of custody case, courts must examine all relevant factors including stability of environment, standard of living each parent can provide and the prior history of the child's custody. Parker v. Parker, 424 So.2d 1070 (La.App. 4th Cir.1982). Continuity and stability of environment are important to consider in child custody matters. Ezell v. Kelley, 535 So.2d 969 (La.App. 2d Cir.1988). A change from a stable environment should not be made absent a compelling reason. Day v. Day, 97-1994 (La.App. 1st Cir.4/8/98), 711 So.2d 793.

Id. at pp. 3-6; 852-53.

In Gautreau v. Gautreau, 96-1548, p. 6 (La.App. 3 Cir. 6/18/97); 697 So.2d 1339, 1345, writ denied, 97-1939 (La.11/7/97); 703 So.2d 1272, we noted the following:

"The wording of Article 134 illustrates that the court is not bound to make a mechanical evaluation of all factors listed." Breaux v. Breaux, 96-214, p. 4 (La.App. 3 Cir. 7/17/96); 677 So.2d 1106, 1108. Rather, "[e]ach case should be decided on its on [sic] facts in light of these factors." Id.

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768 So. 2d 614, 2000 WL 710499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schuchmann-v-schuchmann-lactapp-2000.