Shivers v. Shivers

16 So. 3d 500, 2009 La. App. LEXIS 1383, 2009 WL 1874634
CourtLouisiana Court of Appeal
DecidedJuly 1, 2009
Docket44,596-CA
StatusPublished
Cited by10 cases

This text of 16 So. 3d 500 (Shivers v. Shivers) 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
Shivers v. Shivers, 16 So. 3d 500, 2009 La. App. LEXIS 1383, 2009 WL 1874634 (La. Ct. App. 2009).

Opinion

MOORE, J.

|! Christopher Shivers appeals the judgment of the trial court denying his request for relocation and the award of sole custody of the child, Cortavious Shivers, to his mother, Betty Shivers, and which allows Christopher only supervised visitation; Christopher also appeals the court’s denial of his request for child support, and he appeals the court’s award of interim spousal support some 18 months after the divorce. For the following reasons, we reverse in part, affirm in part, render judgment, and remand to the district court.

FACTS AND PROCEDURE

Christopher and Betty Shivers were married on June 29, 2002. They had one child together, Cortavious, who was born 5 years prior to the marriage on October 18, 1997.

The couple separated on December 26, 2005, when Betty moved out of the matrimonial domicile. Cortavious remained in the care and physical custody of Christopher for 2½ years until July 1, 2008, when the court rendered an interim judgment ordering the parties to alternate custody for two-week periods until a final custody decree.

After she moved out of the matrimonial domicile, Betty filed for a divorce based on adultery on February 13, 2006. Christo *502 pher answered and filed a reconventional demand for a divorce per C.C. art. 102 and child support on March 23, 2006. A judgment of divorce, Judge Nesbitt presiding, was granted on February 2, 2007, pursuant to a Rule To Show Cause for 102 Divorce and Joint Custody filed by Betty on January 19, 2007. In addition to the divorce, Betty’s rule requested that the court award joint custody of ^Cortavious, name her as the domiciliary parent, and give Christopher reasonable visitation. She also prayed for an award of child support and permanent spousal support (alleging that she was free from fault). However, Judge Nesbitt’s judgment determined none of these incidental matters including custody, child support and spousal support, except dissolution of the community of ac-quets and gains retroactive to February 13, 2006, the date of Betty’s 103 divorce petition.

Christopher remarried on September 29, 2007.

Things came to a head again when on June 9, 2008, Christopher, a GM employee, filed a Petition and Rule for Order Allowing Minor Child to Relocate to Arlington, Texas, approximately 250 miles away. Christopher initiated the transfer due to the well-known recent downturn in GM’s fortunes. Because he worked “second shift,” which was likely to be shut down for some time, he was advised that he would have a, better chance of keeping his GM job if he transferred to Arlington. The transfer was approved, and he was ordered by letter dated May 27, 2008 to report to the Arlington Plant on July 16, 2008. A hearing on the rule to relocate was set for July 1, 2008.

Betty answered the petition to relocate with a “Rule to Show Cause For Joint Child Custody, Child Support, Spousal Support, and Partition of Community Property. In her rule, Betty requested that the court award the parties joint custody of Cortavious, name Betty as domiciliary parent and give Christopher reasonable visitation. Betty alleged that Cortavious should be allowed to remain in the Shreveport/Bossier City area because that has been his home, he is familiar with the schools, and she can provide a safe, |shealthy, loving environment for the child.

Betty also alleged that, at the time of the separation, Christopher withheld visitation of Cortavious and another, older son by another man, Rodriguez, and whom Christopher was also raising. She alleged that Christopher refused to return either child to her. Four or five months after the separation, she brought the police to Christopher’s house, and Christopher returned Rodriguez, but kept Cortavious. We cannot determine from this record whether Christopher had an interim sole custody decree as claimed.

At the July 1, 2008 hearing, the court, Judge Wyche presiding pro tempore, did not rule on Christopher’s motion to relocate nor Betty’s rule for permanent joint custody. Instead, the judge met with the parties in chambers to attempt to reach an agreement; ultimately, the court issued an interim order which required the parties to alternate custody of Cortavious every two weeks. 1 The court also re-appointed Sandi Davis, LPC, as a mental health expert and child custody-visitation evaluator. Ms. Davis had previously evaluated the parties in the case pursuant to J. Nesbitt’s appointment in 2006. The evidentiary hearing was re-set for August 18, 2008.

*503 The transcript of the August 18, 2008 indicates that the court was unwilling to take up the matter of relocation when it learned from Betty’s counsel that Betty had filed for a temporary protective order in Bossier Parish against Chris alleging physical abuse. Chris stated that he had not been served with any protective order inasmuch as he had been living in Arlington|4and that the allegations were groundless because he was not living in Louisiana. The court, however, was concerned with the ramifications of the Post-Separation Family Violence Relief Act on the proceedings, namely La. R.S. 9:364, which creates a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court determined that it would only issue an interim custody and child support order until the protective order matter was resolved. The parties told the court that they had reached an agreement as to their respective incomes and the respective amount either would owe in monthly child support depending on how the court ruled on the custody issue.

Responding to questions by the court, Ms. Shivers stated that she lived alone on Nina Street in Bossier City with her other 14-year old son. She stated that she was employed by Diamond Jack Casino as a money counter. The court then issued an “interim judgment” awarding joint custody to the parties and designating Betty as domiciliary parent. Christopher was given visitation of one weekend per month. The court also awarded Betty child support of $617.65 per month effective August 15, 2008 and ordered Christopher to pay interim spousal support of $937.00 per month for the next 12 months, which award ostensibly covered the period from February 1, 2006 to February 1, 2007, that is, the roughly one-year period from the time Betty filed her 103 divorce petition on February 13, 2006 until the divorce was granted February 2, 2007. Christopher’s motion to relocate and his request for interim child support for the period he had custody of Cortavious was not taken up. The case was continued.

1,-,Christopher subsequently filed a motion for a hearing which was set for November 7, 2008. Trial was held on November 7 and December 10 of 2008.

At the hearing on November 7, several witnesses testified in support of Christopher’s relocation, which we briefly summarize:

Officer Keith Hardin testified that Mr. Shivers called Bossier police after he found his son walking in Betty’s neighborhood without supervision and inappropriately dressed for the summer heat. Officer Hardin testified that the neighborhood where Cortavious was walking had a bad reputation. Ms. Shivers arrived at the scene and told him that Cortavious was allowed to go outside and play.

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Bluebook (online)
16 So. 3d 500, 2009 La. App. LEXIS 1383, 2009 WL 1874634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shivers-v-shivers-lactapp-2009.