Watson v. Watson

46 So. 3d 218, 2010 La. App. LEXIS 1128, 2010 WL 3155622
CourtLouisiana Court of Appeal
DecidedAugust 11, 2010
Docket45,652-CA
StatusPublished
Cited by6 cases

This text of 46 So. 3d 218 (Watson v. Watson) 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
Watson v. Watson, 46 So. 3d 218, 2010 La. App. LEXIS 1128, 2010 WL 3155622 (La. Ct. App. 2010).

Opinion

STEWART, J.

|) Plaintiff-Appellant, Brian Watson, is appealing a final judgment of custody rendered in favor of Defendant-Appellee, Pamela Watson. For the reasons discussed below, we affirm the lower court’s judgment.

FACTS

Pamela and Brian Watson were married on November 9, 2002. The couple has three children: S.W., who was born on March -2, 2001; K.W., who was born on April 21, 2003, and; A.W., who was born *220 on April 29, 2004. A.W. is a special needs child who suffers from cerebral palsy.

On August 5, 2006, Brian moved out of the matrimonial domicile. On October 31, 2006, Pamela filed a petition for divorce, in which she requested that joint custody of the children be awarded and that she be named the domiciliary parent. The judgment for divorce was granted on September 19, 2007.

When the parties separated initially, Pamela primarily cared for the children. For reasons not clearly explained in the record, Brian assumed care of the children in April 2008, until the parties returned to court on August 19, 2008. On that day, the trial court entered an interim order, which provided limited visitation to Pamela until it imposed a schedule of sharing of the physical care of the children.

On July 9, 2009, the trial court signed a final judgment of custody, which ordered joint and shared custody of the children on a week-to-week basis. Pamela was named the domiciliary parent. Brian filed a motion for a new trial, which was subsequently denied. He now appeals, asserting four assignments of error.

| ¡.LAW AND DISCUSSION

La. C.C. art. 134

In the first assignment of error, Brian Watson asserts that the trial court erred by interpreting the word “previously,” which is used in La. C.C. art. 134(12), to mean the time frame in which he and Pamela were still living together, and not the time period after the parties physically separated before the trial. Brian argues that the court’s interpretation of “previously” failed to consider his actions, as well as Pamela’s, since they physically separated. He asserts that the court should have defined the word “previously” broadly, to include the care, or the lack thereof, up to the very last day of trial. Had the court done so, he believes that the court would realize that the evidence would reveal that he had assumed the role of the “primary nurturing parent.”

Similarly, Brian asserts in the second assignment of error that the trial court erroneously applied the elements of La. C.C. art. 134 to accomplish a joint shared custody regime and erred in designating Pamela as the primary domiciliary parent. Since Brian is asserting in assignments of error one and two that the trial court erroneously interpreted and applied the factors set forth in La. C.C. art. 134, we will discuss these interrelated assignments together.

It is well settled in our statutory and jurisprudential law that the paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Semmes v. Semmes, 45,006 (La.App. 2 Cir. 12/16/09), 27 So.3d 1024; Shivers v. Shivers, 44,596 (La. App. 2 Cir. 7/1/09), 16 So.3d 500. Custody determinations are made on a case-by-case basis. Robert v. Robert, 44-528 (La. App. 2 Cir. 8/19/09), 17 So.3d 1050. The trial court has vast discretion in deciding the matters of child custody and visitation. Semmes, supra. An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Pender v. Pender, 38, 649 (La.App. 2 Cir. 5/12/04, 890 So.2d 1); Semmes, supra.

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown *221 by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. C.C. art. 132.

To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335(A)(2)(b). 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. Semmes, supra; Stephenson, supra.

In determining the best interest 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. Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773; Cooper v. Cooper, 579 So.2d 1159 (La.App. 2 Cir.1991). La. |4C.C. art. 134 lists some of the relevant factors to be considered in determining the best interests of the child.

The trial court is not bound to make a mechanical evaluation of all the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Id,.; Robert, supra; Bergeron v. Bergeron, 44,210 (La. App. 2 Cir. 3/18/09), 6 So.3d 948. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the court. Semmes, supra; Robert, supra. The trial court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Stephenson v. Stephenson, 37,323 (La.App. 2 Cir. 5/14/03), 847 So.2d 175.

In the instant case, the record reveals that the trial court judge thoroughly evaluated each of the factors listed in La. C.C. art. 134.

(1) The love, affection, and other emotional ties between each party and the child.

The trial judge stated that Brian and Pamela provided love and affection for their three children. She specifically recognized Pamela’s act of paying special attention to A.W., so that she can ensure her a life that is as normal as possible. She also noted Brian’s increasing involvement in A.W.’s therapy. For these reasons, the trial court determined that this factor did not favor either party.

(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.

IsAside from Pamela’s lifestyle and Brian’s attempts to “get back at Pamela,” the trial judge believed that the parties had the capacity and disposition to give the children love. However, each party had failed to provide spiritual guidance to the children. For these reasons, the trial judgment determined that this factor did not favor either party.

(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

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Bluebook (online)
46 So. 3d 218, 2010 La. App. LEXIS 1128, 2010 WL 3155622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-watson-lactapp-2010.