Stephens v. Stephens

822 So. 2d 770, 2002 WL 1352230
CourtLouisiana Court of Appeal
DecidedJune 21, 2002
Docket2002 CU 0402
StatusPublished
Cited by29 cases

This text of 822 So. 2d 770 (Stephens v. Stephens) 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
Stephens v. Stephens, 822 So. 2d 770, 2002 WL 1352230 (La. Ct. App. 2002).

Opinion

822 So.2d 770 (2002)

Jayne S. STEPHENS
v.
Mickey Joe STEPHENS.

No. 2002 CU 0402.

Court of Appeal of Louisiana, First Circuit.

June 21, 2002.

*772 Vincent A. Saffiotti, Baton Rouge, Counsel for Jayne S. Stephens.

Donna Wright Lee, Baton Rouge, Counsel for Mickey Joe Stephens.

Before: FOIL, PETTIGREW, and KLINE[1], JJ.

WILLIAM F. KLINE, JR., J. Pro Tem.

Plaintiff spouse, Jayne S. Stephens, brought this appeal claiming that the trial court erred in fashioning a joint custody arrangement in which each parent would have equal physical custody of the two *773 minor children born of the marriage.[2] For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

On September 27, 1980, Jayne S. Stephens and Mickey Joe Stephens were married in Verona, Pennsylvania. Two children were born of the marriage, a son, A.R.S., born February 4, 1984, and a daughter, A.E.S., born April 22, 1988. According to Mrs. Stephens, the couple began experiencing difficulties in their marriage, culminating in the filing of a petition for divorce under La. C.C. art. 102 on June 7, 2000. The trial court rendered a judgment granting divorce on March 28, 2001.

Pursuant to this divorce action, each party sought custody of the two minor children. Mrs. Stephens, in her petition for divorce, asked that joint custody be awarded to the parties. Mr. Stephens answered and filed a reconventional demand asking that he be awarded sole custody of the minor children. A hearing was held on August 22, 2000 wherein the trial court ordered that the parents share physical custody of the children equally and instituted an interim arrangement requiring the two minor children to spend alternating weeks with each parent. Dr. Mary Lou Kelley was appointed by the court to perform psychological evaluations on both parties and their children.

A trial to determine those matters incident to the divorce judgment began on April 30, 2001 and was continued to June 27, 2001. A final judgment was rendered on July 20, 2001 awarding joint custody of the children and maintaining the interim equal physical custody plan. Mrs. Stephens was named the domiciliary parent. The court further ordered Mrs. Stephens to discuss all major decisions regarding the children with her former husband and set child support payments according to the guidelines.

Thereafter, Mrs. Stephens filed a devolutive appeal on September 10, 2001, appealing only that portion of the judgment that found the final custody arrangement, of alternating weeks spent with each parent, to be in the best interest of the child. On appeal, Mrs. Stephens states in her first assignment of error, to wit: "[t]he trial court's balancing of the best interests of the children with the `right' of a parent to equal physical custody was prejudicial legal error which interdicted the fact finding process and thus [led] to an improper conclusion that equal physical custody was in the best interests of the minor children and feasible in the present case." Furthermore, Mrs. Stephens avers in her second assignment of error, as follows: "[t]he trial court was manifestly erroneous, and thus clearly wrong, in awarding the parties equal (50/50) physical custody of the minor children where the evidence presented at the time of trial established that such a physical custody schedule was neither in the best interests of the minor children nor feasible."

Mr. Stephens argues in support of the trial court judgment on appeal, but admits that one of the cases cited in the trial court's judgment was based on prior law; he avers that this reliance did not distort the judge's application of the present law to the facts and circumstances of this case. Mr. Stephens further alleged that the court-appointed expert was clearly biased against him and the trial court properly ignored the recommendations made in her report.

LAW AND ANALYSIS

Appellate review of the factual circumstances and evidence will not be the *774 basis for reversal of the trial court's judgment even if the Court of Appeals is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the factual findings are found to be reasonable and supported by the record, the trial court's determinations must be given much discretion especially in regards to the credibility of witness testimony, for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d at 844. However, in Evans v. Lungrin, 97-0541, pp. 6-7 (La.2/6/98), 708 So.2d 731, 735, the supreme court re-stated the well-established legal principal that any legal error made by the trial court may be grounds for a reversal of the lower judgment:

It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record.... A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. [Citations omitted.]

In determining the most suitable custody arrangement upon separation or divorce of the parents of a minor child, La. C.C. art. 131 mandates that "the court shall award custody of a child in accordance with the best interest of the child." Furthermore, under La. C.C. art. 132, where no agreement has been reached by the parties, "the court shall award custody to the parents jointly." Once joint custody has been found to be in the best interest of the child, the legislature has provided a trial court with further guidance by enacting La. R.S. 9:335, which states a joint custody implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents, and to the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.

The paramount consideration in any determination of child custody is the best interest of the child. Shaw v. Shaw, 30-613, p. 4 (La.App. 2nd Cir.6/24/98), 714 So.2d 906, 909, writs denied, 98-2414, 98-2426 (La.11/20/98), 729 So.2d 556, 558. Each child custody case must be viewed in light of its own particular set of facts and circumstances. The trial court is vested with vast discretion in matters of child custody and visitation, and its determination is entitled to great weight and will not be disturbed on appeal unless a clear showing of abuse of its discretion is made. Gill v. Dufrene, 97-0777, p. 6 (La.App. 1st Cir.12/29/97), 706 So.2d 518, 521.

Mrs.

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Bluebook (online)
822 So. 2d 770, 2002 WL 1352230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephens-v-stephens-lactapp-2002.