Semmes v. Semmes

27 So. 3d 1024, 2009 La. App. LEXIS 2132, 2009 WL 4827091
CourtLouisiana Court of Appeal
DecidedDecember 16, 2009
Docket45,006-CA
StatusPublished
Cited by28 cases

This text of 27 So. 3d 1024 (Semmes v. Semmes) 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
Semmes v. Semmes, 27 So. 3d 1024, 2009 La. App. LEXIS 2132, 2009 WL 4827091 (La. Ct. App. 2009).

Opinion

WILLIAMS, J.

hln this child custody dispute, the father, Robert Keith Semmes, IV (“Bobby”), appeals a trial court judgment granting primary domiciliary custody of 'the minor child to the mother, Carrie Kennedy Sem-mes (“Carrie”). He also challenges the lower court’s ruling with regard to visitation, child support and its designation of *1027 Carrie as the parent entitled to claim the income tax dependency deduction for the minor child. For the following reasons, we affirm.

FACTS

Bobby and Carrie were married on June 24, 1994. Of the marriage, one child, Emma, was born on December 21, 2000. Carrie filed a petition for divorce on June 7, 2005, requesting joint custody of Emma. 1 While the divorce was pending, the parties entered into a joint stipulation/consent judgment whereby they agreed to be “co-domiciliary” parents. The custodial/visitation schedule read as follows:

1. RECURRING CUSTODIAL/VISITATION PERIODS: The parties will share custody of the [child] on an alternating basis wherein the parents will alternate the custody of the child on Monday-Tuesday and Wednesday-Thurs with the parent who has the child on Monday-Tuesday of week one to have [custody of the child] Wednesday-Thursday of week two. The parties will alternate the weekends, consisting of Friday through Sunday. The objective of the parties is that each parent will have alternate weekends with the child and neither parent will go more than three consecutive days without having physical custody of the child.
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The parties also agreed to alternate holidays with the child, and Bobby | ¡.agreed to pay child support in the amount of $865.48 per month. Additionally, the parties agreed that Carrie would claim Emma as a dependent for state and federal income tax purposes in odd numbered years, and Bobby would claim Emma as a dependent in even numbered years. The trial court entered a consent judgment, ratifying the joint stipulation on September 21, 2005.

Thereafter, on January 14, 2008, Bobby filed a rule to modify child custody and child support. In the petition, Bobby requested that he and Carrie continue to “maintain the equal sharing of time with the minor child, with less transfer.” More specifically, Bobby requested the following: (1) a modification of the joint custody agreement, whereby Emma would spend one week with him and one week with Carrie, “alternating weeks thereafter;” (2) a modification of his child support obligation; and (8) the right to claim Emma as a dependent for federal and state income tax purposes every year.

Carrie filed a response to Bobby’s petition, alleging that an arrangement of alternating weekly custody of Emma, as proposed by Bobby, would “still cause turmoil and be disruptive for the child, who is only seven years of age.” Carrie also objected to Bobby’s request that he be allowed to claim Emma as a dependent for income tax purposes each year. In the same pleading, assuming the position of plaintiff-in-rule, Carrie filed a counter-rule to modify custody and increase child support. Carrie requested the following: (1) that she be designated primary domiciliary parent; (2) that Bobby be awarded visitation every other weekend during the school year |sand three weeks during the summer; and (3) that child support be increased according to the child support guidelines because Bobby “is making substantially more income than he was at the time the previous ‘Joint Stipulation and Consent Judgment’ was signed and filed.”

On February 25, 2008, Bobby filed a first supplemental and amended rule, requesting that he be named domiciliary parent “in the alternative, and solely in the *1028 alternative, in the event this Honorable Court finds that alternating weeks of custody is not in the best interest of the minor child, and that she should reside with one party during the school term....”

A hearing officer conference was held on March 10,2008. At the request of counsel, the trial court appointed a psychologist, Dr. John Simoneaux, to perform a custody evaluation in this case. Dr. Simoneaux evaluated Emma, the parties and the current spouses of the parties. Dr. Simo-neaux opined that a custody agreement, whereby the parents exchanged custody on a weekly basis, would not be disadvantageous to Emma. Dr. Simoneaux stated:

The advantage in this case is that Emma is such a resilient, happy, healthy child. She probably will do okay in any circumstance. It would be difficult to say that moving to her mother’s house would be so upsetting to Emma as to cause her extreme disruption. Emma is a bright child who will do well in any school; she will excel in any social environment, etc.
* * *
The best thing for children of divorce is to inject as much consistency and stability in their life [sic] as possible. Emma keeps up with the current custody regime better than her parents do. She knows where she should be from one day to the next and has adjusted fairly well. I will say, however, that the number of exchanges that take place is potentially problematic....
* * *
|4I do understand concerns about a 50/50 custody split with weekly exchanges. I do not think it is good for a child to go that long without seeing the other parent. Therefore, when weekly custody splits are part of a custody regime, I typically recommend that there be a mid-week visit with the other parent.
* * *
I do believe that this child could tolerate a seven day custody split.
⅜ * *

Another hearing officer conference was held on January 7, 2009. In accordance with Dr. Simoneaux’s report, the hearing officer issued a recommendation that Bobby and Carrie alternate custody of Emma every other week, with a midweek visit for the parent without physical custody for a particular week. The hearing officer also recommended that Bobby be ordered to pay child support in the amount of $183 per month. Additionally, the hearing officer recommended that each of the parties would claim Emma as a dependent for income tax purposes, on an alternating basis, every other year.

Carrie filed an objection to the hearing officer’s report. On January 29, 2009, the trial court signed an interim order, making the hearing officer’s report the interim order of the court pending final disposition.

Following a three-day hearing in April and May of 2009, the trial court granted the parties joint custody of Emma and designated Carrie as the primary domiciliary parent. Bobby was granted visitation every other weekend and approximately seven weeks during the summer. The court granted Carrie “the right to enroll [Emma] in Grace Episcopal School” at Carrie’s expense. The court also awarded Carrie the right to claim “the dependency exemption for the minor child on her income tax returns for |fieach and every year....” Additionally, the court ordered Bobby to pay child support in the amount of $687 per month, with a reduction in the child support obligation for the months of June and July to $350 per month. Bobby appeals.

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Cite This Page — Counsel Stack

Bluebook (online)
27 So. 3d 1024, 2009 La. App. LEXIS 2132, 2009 WL 4827091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/semmes-v-semmes-lactapp-2009.