Stanley v. Stanley

592 So. 2d 862, 1991 WL 273323
CourtLouisiana Court of Appeal
DecidedDecember 18, 1991
DocketW91-931
StatusPublished
Cited by11 cases

This text of 592 So. 2d 862 (Stanley v. Stanley) 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
Stanley v. Stanley, 592 So. 2d 862, 1991 WL 273323 (La. Ct. App. 1991).

Opinion

592 So.2d 862 (1991)

Scott Lee STANLEY, Respondent-Appellee,
v.
Dianna Dee Smith STANLEY, Relator-Appellant.

No. W91-931.

Court of Appeal of Louisiana, Third Circuit.

December 18, 1991.

Davis & Saybe, Michael H. Davis, Alexandria, Love, Rigby, Dehan, McDaniel & Goode, Kenneth Rigby, Shreveport, for relator-appellant.

Percy, Smith, Foote & Honeycutt, Elizabeth E. Foote, Alexandria, for respondent-appellee.

*863 Before DOMENGEAUX, C.J., and GUIDRY and KING, JJ.

GUIDRY, Judge.

This is a dispute over the custody of a minor child. The parties to this action were married on November 21, 1981. One child, Brandon Scott Stanley, was born of this marriage on February 23, 1984. He is now seven years old and is in the second grade.

Scott and Dianna were divorced by judgment rendered and signed on May 7, 1987. The judgment awarded joint custody to the parents with Scott designated as the domiciliary parent with physical possession of Brandon 21 days per month for the nine month period between September and May. Dianna was granted physical custody of Brandon during the summer, with Scott having custody every other weekend and for one week in the latter part of July. At the time, Brandon was three years old. His mother and father agreed to this arrangement and it was incorporated into the divorce judgment. As such, it was not a "considered decree" after litigation of the issue.

On August 23, 1989, Dianna filed a Rule for Change of Joint Custody Plan, asserting that, under the original plan, she was designated to become the domiciliary parent when Brandon reached school age. At the time, Brandon was scheduled to start kindergarten in the fall of 1989. The parties compromised the rule by joint stipulation signed on September 28, 1989. A judgment incorporating the substance of the stipulation was signed on October 17, 1989. In accordance with this judgment, Dianna became the "primary residential custodian" of Brandon during the school year. Scott was granted visitation rights every other weekend during this period and physical custody of Brandon for the summer months. Dianna was awarded two weeks visitation during the summer and also visitation rights every other weekend during this period. The major holidays were alternated amongst the parents according to the stipulation. At the time this judgment became effective, Dianna was living in Shreveport and Scott was living in Alexandria. This also was not a "considered decree" since it resulted from an agreement of the parties.

On June 3, 1991, Scott filed a petition for change of custody alleging that it was no longer in the best interest of Brandon that his mother remain as the domiciliary parent. He alleged that he was able to provide a more stable environment and was more capable of providing for the physical, emotional and moral needs of the child. Dianna answered this petition denying that a change in custody was in the best interest of Brandon. She alleged that no change in circumstances had occurred, and sought an increase in child support payments. Scott then filed two separate supplemental petitions for change of custody. He alleged that Dianna had interfered with his visitation rights and that she had become mentally unfit to continue as Brandon's domiciliary parent.

Trial of this matter was held on August 19, 1991 and August 26, 1991. Because of a series of compromises and resulting stipulations, the only issue at trial was whether primary custody of Brandon should be transferred from Dianna to Scott. The trial court rendered judgment in this case on August 26th, at the conclusion of the trial. It substantially modified the previous custody decree as follows:

"The father, Scotty Lee Stanley, is granted primary custody of Brandon for the school years designated 1991-92 and 1994-95 with the mother, Dianna S. Stanley, having primary custody for the school years designated 1992-93, 1993-94, 1995-96 and 1996-97. Beginning in June, 1997, at which time Brandon will be thirteen years old, his father Scotty Stanley will be the primary custodial parent until Brandon reaches the age of majority.
The parties are ordered to agree upon, and present to the court for approval, a schedule for physical custody of Brandon for the summer periods, holidays, and weekends. This plan shall be presented to the Court for approval within thirty (30) days of the signing of this judgment.
*864 Physical custody of the child for the school year 1991-1992 is to be transferred to Scotty Lee Stanley on Saturday, August 31, 1991."

The trial judge signed this decree on August 29, 1991. Dianna applied to this court for a supervisory writ seeking reversal of the trial court's judgment and a stay of its implementation. We granted Dianna's writ application and stayed all proceedings in this case pending further action of this court.

Dianna urges reversal of the trial court's judgment arguing that enforcement of the judgment will have a disruptive effect on Brandon's education; his ability to make and keep lasting friendships; and, is not in the "best interest of the child". La.C.C. art. 146(E) (repealed), redesignated as La. C.C. art. 131(E) pursuant to Acts 1990, No. 1008, § 8 and Acts 1990, No. 1009, § 10.

For the reasons which follow, we reverse, concluding that the trial court's judgment maintaining joint custody but alternating primary custody between the parents is not in the best interest of the child.

When reviewing a child custody decree, the appellate court must give great weight to the determination of the trial judge and may only overturn such determination when there is a clear abuse of discretion. Segura v. Forrestier, 525 So.2d 139 (La.App. 3rd Cir.1988), citing Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). In the case sub judice, the trial court was asked to modify a prior custody decree which was based on an agreement between the parties. As such, the prior decree was not a "considered decree". This distinction is important inasmuch as it determines the burden of proof which the moving party must meet to have the prior custody decree changed. In Lindner v. Lindner, 569 So.2d 173 (La.App. 1st Cir.1990), our brethren of the First Circuit summarized the law applicable as follows:

"When a trial court has made a considered decree of permanent custody, the party seeking a change 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 decree or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). However, where no considered decree of custody has been rendered, the `heavy burden' rule set forth in Bergeron does not apply. The test to be applied in such cases is best interest of the child. Milligan v. Milligan, 559 So.2d 6 (La.App. 1st Cir.1990); Stewart v. Stewart, 525 So.2d 218 (La.App. 1st Cir.1988); Meredith v. Meredith, 521 So.2d [793] at 796; Risher v. Risher, 511 So.2d 1220 (La.App. 2nd Cir.1987)." Lindner, supra, at pg. 175.

It is clear that the test to be applied in this case is the best interest of the child. The trial judge recognized this as the correct standard in her reasons for judgment. She determined that it was in Brandon's best interest to spend more time with his father and his new wife, Kathy, in Alexandria.

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Cite This Page — Counsel Stack

Bluebook (online)
592 So. 2d 862, 1991 WL 273323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stanley-v-stanley-lactapp-1991.