Stewart v. Stewart

525 So. 2d 218
CourtLouisiana Court of Appeal
DecidedApril 19, 1988
StatusPublished
Cited by13 cases

This text of 525 So. 2d 218 (Stewart v. Stewart) 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
Stewart v. Stewart, 525 So. 2d 218 (La. Ct. App. 1988).

Opinion

525 So.2d 218 (1988)

Anne Golden STEWART
v.
John Roberts STEWART, Jr.

87 CA 1690.

Court of Appeal of Louisiana, First Circuit.

April 19, 1988.

*219 Alan S. Fishbein, Baton Rouge, for Anne Golden Stewart.

Sylvia Roberts, Baton Rouge, for John Roberts Stewart, Jr.

Before COVINGTON, C.J., and SAVOIE and LeBLANC, JJ.

SAVOIE, Judge.

In this action, the father appeals the trial court judgment changing the consent judgment of joint custody to sole custody in favor of the mother.

FACTS

John Stewart, Jr. (hereinafter Mr. Stewart), the father, and Anne Golden Stewart Duke (hereinafter Mrs. Duke), the mother, were married on January 8, 1977. Their child, Christian (Chris) Stewart, was born on July 12, 1983. On August 30, 1984, the parties physically separated. Mrs. Duke filed a petition for separation on October 24, 1984; on November 28, 1984, the separation was granted based on mutual fault, and a stipulated judgment was submitted whereby the parties would share joint custody of Chris and would each have physical custody of him on an alternating weekly basis, alternating major holidays; neither parent requested nor was named the domiciliary parent. Mr. Stewart was to pay $200 per month in child support, and was to share on a fifty-fifty basis the cost for the child's food, education, daycare, nursery, and out of pocket dental and medical bills not covered by insurance; Mrs. Duke was to maintain medical insurance on Chris. A judgment of divorce, granted on July 8, 1985, continued the provisions of the separation with respect to the custody and child support.[1]

*220 Mr. Stewart remarried, to Inessa Stewart, on February 1, 1986; Mrs. Duke married Jack Duke on October 6, 1985. On July 16, 1987, Mrs. Duke, through her attorney, David LeCiere, notified Mr. Stewart that she, Mr. Duke, and Chris intended to move to Montgomery, Alabama, before September 1, 1987. Mr. Duke had received a job promotion which entailed a transfer to Alabama. On July 17, 1987, Mr. Stewart filed a petition seeking a change in the custody agreement to sole custody in favor of himself; Mrs. Duke reconvened seeking sole custody.

On September 2, 1987, after hearing testimony and taking evidence, the court rendered judgment dissolving the joint custody agreement and awarding sole custody to Mrs. Duke. The reasons were as follows:

The Court considered the testimony and evidence and after long and difficult deliberation believes it is in the best interest of the child to be in the sole custody of the mother. The acrimony between the parents is too great to award joint custody. The Court, however, believes that either home is more than suitable, that Mr. and Mrs. Stewart and Mr. and Mrs. Duke are fit parents and love the child dearly. Therefore, the restraining order is vacated and the parties are ordered to submit a liberal visitation schedule by September 25, 1987 or the Court, upon notice, shall formulate a plan.

From this judgment, Mr. Stewart appeals, urging four assignments of error, which read as follows:

1. The trial court abused its discretion by failing to apply the rule that in change of custody cases stability and continuity must be considered as primary factors in determining that a change is in the best interest of the child.
2. The trial court's finding that appellee should be awarded custody of the minor child, which uproots the child from a stable, satisfactory environment here in Baton Rouge based solely on the trial court's finding of acrimony between two fit parents, should be reversed as an abuse of the court's discretion.
3. Since the trial court failed to require appellee as the departing parent, to prove that dislocation of the child to Alabama was in the child's best interest, the judgment below constitutes an abuse of discretion.
4. Since the trial court in its judgment and reasons therefor, failed to articulate a rationale in accordance with the prevailing jurisprudence, i.e., that the change it ordered necessitating dislocation of the child was in the best interest of the child, and instead pitched its decision entirely on a finding of acrimony between the parents, the decision below is not entitled to the usual deference accorded decisions of the trier of fact, and should be reversed.

JOINT CUSTODY

Mr. Stewart apparently is not appealing the trial court's termination of the joint custody, although Mrs. Duke has briefed this issue. Mr. Stewart does contend that the trial court based its decision to award sole custody to Mrs. Duke on the acrimony between the parties. This is not correct; the acrimony was the basis of the termination of the joint custody, but it was not the basis of the award of custody to Mrs. Duke.

Out of an abundance of caution, we note that we agree with the trial court's termination of the joint custody. The great acrimony between the parties is readily apparent even from a reading of the cold record. Mrs. Duke refuses to communicate with her husband because she says he makes her so angry; she and Mr. Stewart use Mr. Duke as a liaison to arrange matters for Chris. Mrs. Duke made the decision to take the child with her and Mr. Duke to Montgomery unilaterally, then had her attorney notify Mr. Stewart of this decision; she was not willing to work out any alternate arrangement, and only wanted to negotiate a visitation schedule with Mr. Stewart *221 Subsequently, she cancelled Chris's longstanding enrollment at St. James Episcopal Day School without consulting Mr. Stewart In July of 1986, when the Dukes were picking up the child following his week with the Stewarts, the parties engaged in a heated argument causing the child to burst into tears and become frightened.

The parties disagree as to Chris' hygiene, with Mr. Stewart becoming irritated if his four year old son's fingernails are slightly dirty or if his hair is too long when he picks him up from Mrs. Duke. Mr. Stewart also was unhappy with the clothing Mrs. Duke provided for Chris. The child also has allergies, sinus problems, and asthma; the parties disagree on the proper medical care for Chris, with Mr. Stewart giving the child medicine whenever any problem appears, and Mrs. Duke giving the child medicine more sparingly.

We believe that these disputes will only increase in number and severity once the Dukes move due to the distance between the parties. The presumption that joint custody is in the best interest of the child does not exist when one of the parents moves out of the state. LSA-C.C. art. 146; Key v. Key, 519 So.2d 319, 323 (La. App.2d Cir.1988). While a great distance between the parents is not an absolute bar to joint custody, in this case the distance coupled with the animosity between the parties is sufficient to rebut the presumption that joint custody is in the best interest of the child. See Eismrth v. Eiswirth, 500 So.2d 817 (La.App. 1st Cir.1986), writ denied, 502 So.2d 111 (La.1987). We find the trial court was correct in dissolving the joint custody decree.

SOLE CUSTODY TO MRS. DUKE

Both parties sought to change the custody of Chris from the joint custody arrangement of alternating weeks to sole custody for either Mr. Stewart or Mrs. Duke. Because the original joint custody plan was a stipulated judgment, and not a considered decree, the "heavy burden" rule set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), does not apply. Risher v. Risher, 511 So.2d 1220, 1222 (La.App. 2d Cir.1987).

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Bluebook (online)
525 So. 2d 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-stewart-lactapp-1988.