Timmons v. Timmons

605 So. 2d 1162, 1992 WL 197853
CourtLouisiana Court of Appeal
DecidedAugust 19, 1992
Docket23884-CA
StatusPublished
Cited by18 cases

This text of 605 So. 2d 1162 (Timmons v. Timmons) 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
Timmons v. Timmons, 605 So. 2d 1162, 1992 WL 197853 (La. Ct. App. 1992).

Opinion

605 So.2d 1162 (1992)

Marilyn Mason TIMMONS, Plaintiff/Appellee,
v.
William D. TIMMONS, Defendant/Appellant.

No. 23884-CA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1992.
Rehearing Denied September 17, 1992.
Writ Denied November 30, 1992.

*1163 Kitchens, Benton, Kitchens, & Warren by Paul E. Kitchens, Minden, for plaintiff/appellee.

Foster & Foster by Mark O. Foster, Minden, for defendant/appellant.

Before SEXTON, HIGHTOWER and BROWN, JJ.

SEXTON, Judge.

Defendant William Timmons appeals the district court's award of domiciliary custody of the two children of his marriage to plaintiff Marilyn Mason Timmons, as well as its calculation of his child support obligation. We amend and affirm as amended.

The parties were married in 1982 and two children were born of that marriage. At the time that Mrs. Timmons filed the instant suit seeking a divorce and custody of the children in April 1991, the parties' son was six years old and their daughter was three years old.[1] Shortly after filing her original petition, Mrs. Timmons filed an amended petition seeking an ex parte award of custody until a judicial determination of custody could be made at a later date. The district court awarded her temporary custody, subject to reasonable visitation by Mr. Timmons.

*1164 Mr. Timmons filed an answer and reconventional demand wherein he alleged that it would be in the best interests of the children for him to be the domiciliary parent, for the following nonexclusive reasons:

—immediately prior to the parties' separation, he was providing much of the primary care to the children;
—Mrs. Timmons was undergoing treatment, therapy, and counseling for substance abuse; and
—since the parties' separation, Mrs. Timmons had failed to provide a stable home life for the children and had failed to provide care, time, and attention to their needs.

He also sought support from her for the benefit of the children.

Mrs. Timmons filed a supplemental and amending petition wherein she also sought domiciliary custody of the children, as well as child support.

At the original hearing, the parties agreed to take evidence solely on the issue of custody and also agreed that support would be determined following the decision on domiciliary custody.

Mrs. Timmons called as witnesses two counselors who had counseled with her in the past, as well as having briefly met the children on the morning of the hearing. When Mrs. Timmons attempted to elicit their opinions on the best interest of the children regarding domiciliary custody, Mr. Timmons objected. The court overruled the objection and indicated that the objection would be considered in terms of the weight to be given to their testimony.

Mrs. Timmons also presented the testimony of Glenda Nation, a recovering alcoholic. Her testimony concerned Mrs. Timmons' attendance at Alcoholics Anonymous meetings for the purpose of demonstrating her dedication to recovery, as well as to explain her frequent absences in the evening, which required the children to be left with a babysitter.

Finally, Mrs. Timmons presented the testimony of Brenda Hinton, who was the children's regular babysitter. The main thrust of her testimony concerned the number of hours the children were left with her, even when Mrs. Timmons was not at work.

Mr. Timmons presented three witnesses. In addition to his own testimony and that of Mrs. Timmons as an adverse witness, he presented that of Rose Giddings, his sister and a supervisory employee at Mrs. Timmons' place of employment. She testified about the hours that Mrs. Timmons was at work during certain periods. This testimony was relevant to the babysitter's testimony regarding the hours the children were not with their mother.

Mr. Timmons testified in support of the allegations contained in his petition and provided details regarding his wife's mental condition, substance abuse, and general disregard of the children toward the latter days of their marriage, as well as shortly after the separation.

Mrs. Timmons testified about her condition and her dedication to recovery. She explained many of her absences as part of the recovery process involving AA meetings, counseling, and follow-up therapy. In addition, she testified that she was required to spend a considerable amount of time gathering furniture and seeking fulltime employment after she left the matrimonial domicile.

Following the hearing, the district court awarded domiciliary custody of the children to Mrs. Timmons, with generous visitation by Mr. Timmons. The parties were requested to negotiate support, but when that failed, evidence on that issue was taken.

After taking the matter under advisement, the district court ordered Mr. Timmons to pay Mrs. Timmons $603.19 per month for the benefit of the children. It disregarded his argument that his financial obligations to the child from his previous marriage should be taken into account and further added the cost of insurance premiums to his obligation.

Mr. Timmons now appeals and suggests that we should reverse and render on the custody issue, but that if custody is affirmed, we should modify the child support obligation.

*1165 CHILD CUSTODY

The primary consideration in rendering a child custody determination is always the best interest of the children. LSA-C.C. Art. 131. In determining the best interests of a child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Cooper v. Cooper, 579 So.2d 1159 (La.App. 2d Cir.1991).

In child custody cases, the decision of the trial court is to be given great weight and will be overturned only where there is a clear abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988); Lee v. Davis, 579 So.2d 1130 (La.App. 2d Cir.1991).

In the instant case, the district court was faced with a close question. Both the plaintiff and defendant presented valid reasons in support of their requests for domiciliary custody, while both were confronted with evidence which supported giving custody of the children to the other party.

In her favor, Mrs. Timmons was able to show that she was the primary care provider for the children until a few months before the parties separated. In addition, despite an adverse situation following the parties' separation, she was able to provide an adequate home for the children, as well as adequate day-care for them while she worked and pursued recovery and therapy for her considerable problems. On the other hand, there was substantial evidence of plaintiff's problems with substance abuse, depression, and an innominate "personality disorder." She spent nearly a month away from the children while undergoing inpatient treatment for her problems, as well as substantial amounts of time away from them after returning home from treatment. Additionally, although there was evidence that she spent considerable blocks of time, sometimes hours, away from the children when she was not at work, Mrs. Timmons explained that she was required to gather furniture to adequately furnish her new residence after she and the defendant separated, as well as to pursue more meaningful and financially rewarding employment.

Mr. Timmons showed that he still lived in the home where the children had lived prior to the separation and that he was gainfully employed with a regular schedule.

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Bluebook (online)
605 So. 2d 1162, 1992 WL 197853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timmons-v-timmons-lactapp-1992.