Stephenson v. Stephenson

847 So. 2d 175, 2003 WL 21077744
CourtLouisiana Court of Appeal
DecidedMay 14, 2003
Docket37,323-CA
StatusPublished
Cited by23 cases

This text of 847 So. 2d 175 (Stephenson v. Stephenson) 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
Stephenson v. Stephenson, 847 So. 2d 175, 2003 WL 21077744 (La. Ct. App. 2003).

Opinion

847 So.2d 175 (2003)

James Hugh STEPHENSON, Sr., Plaintiff-Appellant,
v.
Nancy STEPHENSON, nee Savage, Defendant-Appellee.

No. 37,323-CA.

Court of Appeal of Louisiana, Second Circuit.

May 14, 2003.

*177 Donald L. Kneipp, Monroe, for Appellant.

Loomis & DeMent, by Albert E. Loomis, III, Jeffery L. Dement, Monroe, for Appellee.

Before GASKINS, CARAWAY and DREW, JJ.

CARAWAY, J.

In this child custody and support dispute, the trial court granted joint custody of the eight-year-old child to the parents, with the mother being designated the domiciliary parent and the father having frequent visitation. The trial court also awarded the mother interim spousal support of $900 per month from the date of demand until one-hundred eighty days after the judgment of divorce and child support. From these rulings, the father appeals. Finding no abuse of the trial court's discretion, we affirm.

Facts

James Hugh Stephenson, Sr. ("James") and Nancy Savage Stephenson ("Nancy") were married in 1991. Of the marriage, one son, James Hugh Stephenson, Jr. ("Jamie"), was born on August 15, 1994. Nancy's daughter from a previous marriage, Carolyn, also lived with the couple.[1] On July 19, 2001, James petitioned the court for a divorce from Nancy and requested his designation as domiciliary parent of Jamie under a joint custody plan.[2] Nancy answered and reconvened, requesting that she be awarded the primary care, custody and control of Jamie under a joint custody plan as well as child support. Nancy also sought interim periodic spousal support. During the pendency of the proceedings, the court rendered an interim order granting *178 alternating weekly interim custody of Jamie to the parties.

After a three-day hearing in March of 2002 on the issues of custody and support, the trial court orally granted the parties joint custody of Jamie and designated Nancy the primary domiciliary parent. A written judgment reflecting this ruling followed on July 17, 2002. The judgment granted James every other weekend and each Wednesday afternoon visitation during the school year and alternate weekly summer visitation.

In July, 2002, James sought a rehearing on the issue of child custody. In September, 2002, the trial court orally denied James's motion for rehearing and additionally rendered judgment on the issues of support. Specifically, the court awarded Nancy $900 per month as interim spousal support from the date of her reconventional demand until 180 days after the judgment of divorce. On October 10, 2002, the court rendered a written judgment affirming the earlier interim spousal support award and granting Nancy child support in the amount of $412.50 per month from July 25, 2001 until October 15, 2001, $209.76 per month from October 15, 2001 until March 21, 2002 and $545.79 per month after March 21,2002. From these judgments, this appeal ensued.

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. La. C.C. art. 134 sets forth the factors the court should consider when determining the best interest of the child, as follows:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

% The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of these factors. Rogers v. Stockmon, 34,327 (La.App.2d Cir.11/1/00), 780 So.2d 386. The trial court is not bound to give more weight to one factor over another, *179 and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Id. A trial court's assessment of the probative value of evidence is accorded great weight and will not be disturbed absent a clear abuse of discretion. Rogers, supra; Hodnett v. Hodnett, 36,532 (La. App.2d Cir.9/18/02), 827 So.2d 1205. The best interest of the child test under La. C.C. arts. 131 and 134 is a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Hodnett, supra. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Id.

La. R.S. 9:335(A)(2)(b) provides that to the extent feasible and in the best interest of the child, physical custody of the children should be shared equally. Yet, when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Hodnett, supra; Craft v. Craft, 35,785 (La.App.2d Cir.1/23/02), 805 So.2d 1213; Shaw v. Shaw, 30,613 (La.App.2d Cir.6/24/98), 714 So.2d 906, writs denied, 98-2414 (La.11/20/98), 729 So.2d 556, 98-2426 (La.11/20/98), 729 So.2d 558. Substantial time rather than strict equality of time is mandated by the legislative scheme providing for joint custody of children. Id.

When parties are awarded joint custody, the court shall designate a domiciliary parent unless the implementation order provides otherwise or for other good cause shown. La. R.S. 9:335(B)(1). The naming of a domiciliary parent in the joint custody decree, without more, produces three legal results: (i) the child shall primarily reside with that parent; (ii) the other parent has physical custody during time periods that assure that the child has frequent and continuing contact with both parents; and (iii) the decision making authority of La. R.S. 9:335(B)(3) applies. See Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La.L.Rev. 103 (1994). The domiciliary parent is the parent with whom the child primarily resides, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents. La. R.S. 9:335(B)(2).

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Bluebook (online)
847 So. 2d 175, 2003 WL 21077744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stephenson-v-stephenson-lactapp-2003.