Stewart v. Stewart

86 So. 3d 148, 11 La.App. 3 Cir. 1334, 2012 WL 716444, 2012 La. App. LEXIS 279
CourtLouisiana Court of Appeal
DecidedMarch 7, 2012
DocketNo. 11-1334
StatusPublished
Cited by8 cases

This text of 86 So. 3d 148 (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, 86 So. 3d 148, 11 La.App. 3 Cir. 1334, 2012 WL 716444, 2012 La. App. LEXIS 279 (La. Ct. App. 2012).

Opinion

SAUNDERS, J.

1, Appellant appeals the judgment of the trial court awarding joint legal custody, shared physical custody, co-domiciliary status to each parent, orders that the child remain at his current elementary school, and orders family counseling. We find that the trial court did not abuse its discretion as to the custody decree. Accordingly, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

This appeal concerns the custody arrangement of a minor child, S.S., who is now six years old. The Sabine Parish School Board has determined that S.S. is developmentally delayed, according to its last evaluation in 2010, and S.S. participates in the special education program at Zwolle Elementary School in Many, Louisiana. Appellee, Harold Gabriel Stewart (hereinafter “Appellee”), sells tires for his parents’ business and operates the former community enterprise lawn care business. Appellee pled guilty to a felony, is serving five years of supervised probation, one result of which is $7,316.03 paid in restitution to the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles. Appellee filed for divorce from the child’s mother, Jennifer Marie Stewart (hereinafter “Appellant”), and for custody of S.S. on August 16, 2010. Appellant is a teacher with a master’s degree in edu[151]*151cation. During the divorce and custody proceedings, Appellant filed multiple Petitions for Protection from Abuse under the Domestic Abuse Act setting forth allegations of abuse and violence against Appel-lee. Each of these petitions was denied.

On August 18, 2010, the Court ordered interim shared physical custody, with the father having custody one week and the mother having custody the next week, on an alternating basis. On September 20, 2010, the parties agreed in court that each parent and S.S. would undergo a mental health evaluation. They also |2agreed to an interim order continuing the visitation schedule on a week to week basis. The trial court appointed Louis Lowrey, M.A. (hereinafter “Lowrey”), a licensed professional counselor and marriage and family therapist, as evaluator in the case.

On March 3, 2011, the parties appeared in court for a hearing on the final divorce, which was granted to Harold on the grounds of adultery on part of Appellant. The custody hearing was held on June 16 and 17 of 2011. After two days of testimony, the trial court rendered a judgment to the following effects: joint legal custody of S.S. by each party, shared physical custody of S.S. on an alternating weekly basis, co-domiciliary status of each parent, that S.S. shall remain at his current school, and that the parties shall attend and participate in family counseling and shall split the costs thereof. It is from this judgment that the Appellant appeals. We affirm the judgment of the trial court for the reasons discussed herein.

ASSIGNMENTS OF ERROR

1.By ordering a co-domiciliary legal custody regime, the trial judge misapplied La.R.S. 9:335 in the conspicuous absence of a Joint Plan of Implementation or a finding of good cause for such omission. Such legal error requires a de novo review of the record, or, at the very least, a reversal and remand.
2. By failing to engage in the analysis required by La.Civ.Code art. 134 by omitting any discussion of one of the 12 factors set forth therein in light of the evidence adduced. Such legal error requires a de novo determination of the ignored factors in light of the record, or, in the alternative, a reversal and remand.
3. Without engaging in any articulated review of the record and the factors listed in La.Civ.Code art. 134, the trial court clearly abused its discretion in its custody award with respect to the parents alternating physical custody of the special needs child every other week and in its failure to designate a domiciliary parent.
4. By refusing to exclude the testimony of the court[-]appointed mental health evaluator in light of the objections lodged due to |3the absence of any specialized training in custody evaluations coupled by egregious professional negligence.
5. By unreasonably rejecting the testimony of Dr. James R. Logan on the need to carefully tailor the physical custody plan for this special needs child in this ease to ensure stability in the child’s life and designate a domiciliary custodian empowered to make the educational, medical and educational decisions for SS.

LAW AND ANALYSIS

A court of appeal cannot set aside a finding of fact of the trial court unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings of fact are reasonable in light of the evidence viewed entirely, an appellate court may not re[152]*152verse those findings even if it would have weighed the evidence differently. Id. Specifically,

[t]he standard of review in child custody matters has been clearly stated by this court:
The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Gremillion v. Gremillion, 07-492, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228, 1231-32, writ denied, 10-2125 (La.12/10/10), 51 So.3d 726.

In her first assignment of error, Appellant argues that the trial court erred as a matter of law by incorrectly applying La.R.S. 9:335, thereby requiring a de novo review of the record, or, alternatively, reversal and remand. Specifically, she argues that the court erred by appointing the parents co-domiciliaries without issuing an implementation plan or finding good cause for such an omission. We disagree with this assignment of error, and affirm the judgment of the trial court.

14Joint custody decrees are governed by La.R.S. 9:335, which states in pertinent part:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The 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.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.

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Bluebook (online)
86 So. 3d 148, 11 La.App. 3 Cir. 1334, 2012 WL 716444, 2012 La. App. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-stewart-lactapp-2012.