Silbernagel v. Silbernagel

958 So. 2d 13, 2007 WL 1077899
CourtLouisiana Court of Appeal
DecidedApril 11, 2007
Docket06-CA-879
StatusPublished
Cited by20 cases

This text of 958 So. 2d 13 (Silbernagel v. Silbernagel) 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
Silbernagel v. Silbernagel, 958 So. 2d 13, 2007 WL 1077899 (La. Ct. App. 2007).

Opinion

958 So.2d 13 (2007)

Emily Allain SILBERNAGEL
v.
Eric SILBERNAGEL.

No. 06-CA-879.

Court of Appeal of Louisiana, Fifth Circuit.

April 11, 2007.

*15 J. Louis Watkins, III, Attorney at Law, Houma, Louisiana, for Appellant/Appellee, Emily Silbernagel.

Don C. Gardner, Attorney at Law, Harahan, Louisiana, for Appellee/Second Appellant, Eric Silbernagel.

Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.

SUSAN M. CHEHARDY, Judge.

In this appeal, Emily Allain Silbernagel and Eric Silbernagel both seek review of judgment rendered in their dispute over custody of their only child, Matthew. After trial, the trial court denied Eric Silberganel's request to designate him as the domiciliary parent. The trial judge also modified the visitation agreement to give each parent physical custody for 7 consecutive days with all other aspects of the original consent decree to remain operative and ordered that Matthew attend St. Louis King of France Catholic School through the end of the 2007 school year. For the reasons that follow, we affirm the judgment of the trial court.

Facts and Procedural History

The parties in this matter, Eric Silbernagel and Emily Allain Silbernagel, were married on November 15, 1996, and had one child, Matthew, during their marriage. The parties were divorced on January 7, 2004. On July 6, 2004, the parties entered into a consent judgment, which was signed on August 30, 2004. The judgment awarded the parties joint custody of Matthew, with Emily Silbernagel designated as domiciliary parent, subject to specific, regular custodial periods to be exercised by each of the parties, with slight modifications of the custodial periods for holidays, birthdays, and summer vacations and subject to Matthew's attendance at St. Louis King of France Catholic School for the school year ending in 2005. On August 17, 2005, the parties signed a consent judgment partitioning their community property, which left Emily Silbernagel as sole owner of the former family home in Metairie.

*16 On August 29, 2005, Hurricane Katrina devastated the Gulf Coast, including Jefferson Parish. Eric Silbernagel took Matthew and evacuated to Baton Rouge, Louisiana, where Eric and his extended family remained for a number of weeks. Emily Silbernagel, due to her employment at Tulane Hospital, was trapped in New Orleans, Louisiana until Friday, September 2, 2005. Thereafter, Emily evacuated to Houma, Louisiana with friends. On Sunday, September 4, 2005, Emily was reunited with Matthew and they returned to Houma. On September 8, 2005, Emily enrolled Matthew in elementary school in Houma, Louisiana. Both parties agree that St. Louis King of France Catholic School had not re-opened at that time. On or about October 10, 2005, St. Louis King of France School re-opened. At the time of trial, Eric had remarried and returned to live in Metairie, Louisiana and Emily remained in Houma, Louisiana.

On October 13, 2005, Eric Silbernagel filed an Emergency Rule for Temporary Change of Physical Custody, seeking designation as domiciliary parent with visitation for Emily Silbernagel every other weekend until she returned to live in Metairie, and re-enrollment of Matthew at St. Louis King of France School. Eric Silbernagel alleged that the change was in Matthew's best interest because Matthew would be irreparably harmed by his upset regarding "the living conditions in Houma, and the loss of his school and friends." On or about November 9, 2005, the trial judge ordered that Matthew return to St. Louis King of France until both parties agreed to a change of school or the court ordered a change.

On March 6, 2006, Emily Silbernagel filed a Motion and Order for Psychiatric Evaluation of the parties. On March 8, 2006, the State of Louisiana Department of Social Services through the Jefferson Parish District Attorney filed an Ex-Parte Motion and Order to Change the child support payee and transfer the child support award enforcement and modification to the Jefferson Parish Juvenile Court.

Hearings on Eric Silbernagel's Emergency Rule were completed on April 3, 2006. The trial judge rendered judgment on April 6, 2006, denying Eric Silbernagel's request to be designated domiciliary parent; ordering Matthew's attendance at St. Louis King of France School until the end of the 2007 school year; and changing the visitation schedule to provide each parent with seven consecutive days of physical custody with all other provisions of the original decree to remain operative.

On May 3, 2006, Emily Silbernagel filed a Motion for Appeal, which was granted on May 5, 2006. On May 10, 2006, Eric Silbernagel filed a Motion for Appeal, which was granted on May 11, 2006. On May 11, 2006, Eric Silbernagel also filed a Rule for Contempt and Ex-Parte Motion and Order to Return Child Support Award and Enforcement to the district court from juvenile court. After the contempt hearing, the trial judge found Emily in contempt, sentenced her to six months in jail; and ordered her to pay $3,000.00 of Eric Silbernagel's attorney fees as a sanction for allegedly failing to pay her portion of Matthew's tuition.

On appeal, Eric Silbernagel argues that the trial court erred in failing to designate him as Matthew's domiciliary parent. On appeal, Emily Silbernagel raises multiple assignments of error: the trial court erred in ordering Matthew's attendance at St. Louis King of France school for the school years 2005-2006 and 2006-2007; the trial court erred in ordering a change in the physical custody schedule; the trial court erred in refusing to allow introduction of evidence at trial, including emails between the parties, evidence prior to the August *17 30, 2004 consent judgment, and evidence prior to Hurricane Katrina; the trial court erred in denying Emily Silbernagel's Motion for Psychiatric Evaluation of the parties; the trial court erred in holding Emily Silbernagel in contempt of court; the trial court erred in sentencing Emily Silbernagel to six months in jail for contempt; and the trial court erred in ordering Emily Silbernagel to pay $3,000.00 of Eric Silbernagel's attorney fees as a sanction for allegedly failing to pay her portion of Matthew's tuition.

Discussion

It is a well recognized tenet of Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La.1979)(on rehearing). Every child custody case must be viewed within its own peculiar set of facts. Connelly v. Connelly, 94-0527, p. 4 (La.App. 1 Cir. 10/7/94), 644 So.2d 789, 793. The paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 738; La. C.C. art. 131.

The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101, 101 (La.1988)(per curiam.)

In this case, and as in most child custody cases, the trial court's determination was based heavily on factual findings. It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

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Bluebook (online)
958 So. 2d 13, 2007 WL 1077899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silbernagel-v-silbernagel-lactapp-2007.