Shaw v. Shaw

714 So. 2d 906, 1998 WL 329630
CourtLouisiana Court of Appeal
DecidedJune 24, 1998
Docket30613-CA
StatusPublished
Cited by36 cases

This text of 714 So. 2d 906 (Shaw v. Shaw) 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
Shaw v. Shaw, 714 So. 2d 906, 1998 WL 329630 (La. Ct. App. 1998).

Opinion

714 So.2d 906 (1998)

Teresa Renee Johnson SHAW, Plaintiff-Appellee,
v.
James Neil SHAW, Defendant-Appellant.

No. 30613-CA.

Court of Appeal of Louisiana, Second Circuit.

June 24, 1998.
Rehearing Denied August 13, 1998.

*907 Paul Loy Hurd, Monroe, for Defendant-Appellant.

Robert P. McLeod, Jr., Monroe, for Plaintiff-Appellee.

Before HIGHTOWER, BROWN and CARAWAY, JJ.

CARAWAY, Judge.

In this child custody and support case, the trial court rendered a judgment maintaining a prior award of joint custody but reducing to writing the physical aspects of the joint custody, modifying the child support obligations and upholding the mother's choice of elementary school. For the following reasons, we affirm in part, amend in part and render.

Facts/Procedural History

James Neil Shaw ("Neil") and Teresa Renee Johnson Shaw ("Renee") were married on June 30, 1989; Savannah, their only child, was born in March 1991. In May 1994, Renee filed a petition for divorce, submitting a proposed "Joint Custody Plan of Implementation" and moving to implement said plan and be named domiciliary parent. The Joint Custody Plan provided that Neil would pay Renee $375 per month child support and Renee would maintain insurance coverage on Savannah with the parties splitting all medical, dental, orthodontic and drug expenses incurred by Savannah and not covered by insurance. By agreement of the parties, a "Judgment on Rule" dated June 28, 1994 was entered which ordered into effect the Joint *908 Custody Plan previously filed. The judgment provided for the parties to alternate the income tax deduction for Savannah each year. The Joint Custody Plan also stated that Renee would have physical custody of Savannah except when Neil had physical custody of her which would occur at "all reasonable times and places."

The parties' divorce judgment was rendered on December 14, 1994. The divorce judgment also provided that the provisions of the Judgment on Rule that had been rendered and signed in June 1994 would be maintained.

On July 10, 1996, Renee filed a pleading styled "Rule for Increase in Child Support and for Other Relief" alleging that Savannah's expenses had substantially increased since the 1994 judgment fixing the support at $375 per month. Renee requested that the court order Neil to pay child support in accordance with La. R.S. 9:315-9:315.14 and that she be allowed to claim the dependency exemption for Savannah on all federal and state income taxes each year rather than every other year.

On July 29, 1996, Neil's attorney filed a pleading styled "Rule for Modification of Child Custody, Child Support and Other Relief." Neil alleged there had been a change of circumstances sufficient to justify a change of custody from the current plan to a plan that would provide for equal sharing of the physical custody of Savannah. Neil also requested that the court order that Savannah attend Lexington Elementary School (a public school) rather than continuing to attend Grace Episcopal School (a private school).

Following a trial on these issues, the trial court determined that the existing Joint Custody Plan adopted in 1994 was not specific with respect to Neil's visitation rights but that the parties had apparently worked out a schedule between themselves over the two years. The court thus treated the matter as one where there had been an agreed physical custody plan and applied the law related to consent judgments of custody rather than the law related to considered decrees as set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). The court found that Neil, as the party seeking to modify a consent decree of custody, failed to carry his burden of proving by a preponderance of the evidence either that there had been a change of circumstances that materially affected Savannah's welfare or that a change of custody would be in the best interest of the child. The court then entered an implementation order reducing to writing substantially the plan for physical custody that Neil and Renee had worked out subsequent to their separation.

After specifically designating Renee as the domiciliary parent in the implementation order, the court rejected Neil's position that Renee's choice for Savannah to attend Grace Episcopal School was not in the best interest of Savannah. Regarding child support, the court ordered the child support obligation of Neil to be increased in compliance with the guidelines. The court held that the parties would continue to alternate the dependency exemption for Savannah on all federal and state income tax returns.

From the court's rulings, Neil complains about the child custody arrangement, the school designation, and computation of child support, and Renee assigns error in the allocation of the child dependency exemption.

Discussion

Preliminarily, we note that Neil has assigned error in the failure of the trial court to recuse Renee's counsel, the McLeod Verlander law firm. Neil argues that the law firm, through a former partner, had represented Debi Shaw, Neil's present wife, in her divorce proceedings several years earlier and was therefore privy to confidential personal and financial information creating a conflict in the representation of Renee against Neil. The only relevant information relating to Debi Shaw for this proceeding was the amount and payment of monthly household living expenses since her marriage to Neil for the purpose of determining whether any of Debi's income should be attributed to Neil due to the reduction of his living expenses. Since this information would not have been in existence at the time of Debi's earlier divorce, we do not believe that any conflict existed with the McLeod Verlander firm representing Renee and find no error in the denial of the motion to recuse the firm.

*909 Child Custody

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731.

In cases such as the present, where the original custody decree is a stipulated judgment and the rule of Bergeron for the burden of proof is inapplicable, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Id. at 738.

La. C.C. art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interests of the child. The consideration of all relevant factors under Article 134 should be followed in actions to change custody, as well as in those to fix custody initially. La. C.C. art. 134, comment (d).

In the June 1994 Judgment on Rule, the court, without receiving any evidence on parental fitness, awarded Neil and Renee joint custody of Savannah. The Joint Custody Plan provided that Renee would have physical custody of Savannah except when Neil had physical custody of the child which would occur at all reasonable times and places. This unspecified physical custody arrangement evolved into Neil having physical custody of Savannah every Thursday afternoon until early evening, every other weekend and 2 two-week periods during the summer with holidays being split by agreement between the parties. Otherwise, Savannah primarily resided with Renee.

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Cite This Page — Counsel Stack

Bluebook (online)
714 So. 2d 906, 1998 WL 329630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-shaw-lactapp-1998.