Opinion
2011 CU 0512
09-20-2011
MARK D. GRIFFITH v. EVLYN M. LARY
Deborah P. Gibbs Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Mark D. Griffith Chester H. Boyd Baton Rouge, Louisiana Counsel for Defendant/Appellee Evlyn M. Lary
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-First Judicial District Court
In and for the Parish of Livingston
State of Louisiana
Docket No. 127570
Honorable Brenda Bedsole Ricks, Judge Presiding
Deborah P. Gibbs
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellant
Mark D. Griffith
Chester H. Boyd
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
Evlyn M. Lary
BEFORE: WHIPPLE, McDONALD, AND McCLENDON, JJ. McCLENDON , J.
A father seeks review of a trial court's judgment that designates the mother of their four-year-old daughter as domiciliary parent and renders a joint custody implementation plan that provides for unequal sharing. For the reasons that follow, we amend the trial court's judgment to extend the father's physical custody until 5:00 p.m. on Sunday on those weekends that he has physical custody of the child, and affirm the trial court's judgment as amended.
FACTS AND PROCEDURAL HISTORY
Mark Griffith and Evlyn Lary are the biological parents of S.G., born March 31, 2007. (R. 34) Mark and Evlyn never married.
Mark and Evlyn currently share physical custody of S.G., and since she was ten months old, Evlyn has allowed Mark to spend time with S.G. on Tuesday and Thursday night of one week, and Thursday, Friday, and Saturday night of the following week. Mark contends that Evlyn indicated that they would share custody equally once Evlyn graduated from college. However, since Evelyn graduated from college in December 2009, the parties' arrangement has remained the same.
Mark is a 26-year-old mechanic and is now married to Lacy Griffith, a schoolteacher. They reside in Denham Springs. Further, Mark has physical custody of his 4-year-old son, C.G., every other week.
Evlyn is currently employed full-time, but is still seeking employment within her degree field. Evlyn sometimes works evening shifts at her current job, requiring her to find someone to take care of S.G. The record does not reveal the exact nature of Evlyn's current employment or her specific work schedule.
On March 3, 2010, Mark filed a petition, seeking, among other things, joint custody of the minor child, with Mark being designated domiciliary parent, subject to a plan of equal sharing of physical custody. Evlyn answered the petition, asserting that Mark was "not entitled to [be] domiciliary parent or [to] equal sharing."
A hearing on Mark's petition was held on July 28, 2010. The parties stipulated to joint custody, and the sole issues remaining before the trial court were the designation of a domiciliary parent and the sharing of physical custody. Mark was the sole witness to testify at the hearing. Evlyn was present in court with counsel, but did not testify. Following the hearing, the trial court awarded the parties joint custody, designated Evlyn the domiciliary parent, and granted Mark physical custody as follows:
a. Every other weekend from Thursday afternoon when the child is picked up from daycare or school, until Sunday morning at 10:00 a.m.;
b. Every Tuesday from the time the child is picked up from daycare or school until the child is returned [to] school or daycare on Wednesday morning;
c. One-half of all holidays; and
d. At least one full week in June, July and August, in addition to the regularly scheduled custodial periods.
Mark has appealed, asserting that the trial court erred in failing to designate him as the domiciliary parent and in failing to award physical custody equally.
DISCUSSION
At the outset, we note that Mark asserts that trial court erred in designating Evlyn as the domiciliary parent because she never formally petitioned the court for the designation. Under LSA-R.S. 9:335(B)(1), however, the court is required to designate a domiciliary parent when implementing a joint custody decree except when there is an implementation order to the contrary or for other good cause shown. Moreover, both parents were parties properly before the court and we note that in her answer, Evelyn asserted that Mark was "not entitled to [be] domiciliary parent or [to] equal sharing." Evelyn also indicated that she had allowed Mark "visitation" because she believed it to be in the best interest of the child. By asserting that she allowed "visitation," it is clear that she maintained that she was in essence exercising the rights the law ascribes to a domiciliary parent and contended that Mark presented no basis to change the basic arrangement between them. We find Mark's argument that he was denied due process because he was not given reasonable notice of the possibility that Evelyn could be named domiciliary parent unfounded, especially considering that his pleadings put domiciliary designation at issue. Additionally, regardless of the technicality of the pleadings, we note that the trial court, in custody matters, is always to be guided by the best interest of the child. Accordingly, the issue of whether either Evlyn or Mark should be named the domiciliary parent was properly before the court. Cf. Robicheaux v. Robicheaux, 165 So.2d 550 (La.App. 1 Cir. 1964) (wherein only a general denial of a father's request for permanent care, custody and control of the children of the marriage coupled with the fact that mother was morally unfit to care for her children precluded a mother from obtaining custody of the minor children.)
We note that if a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code. LSA-R.S. 9:335(C).
To the extent feasible, and in the best interest of the child, physical custody of the child should be shared equally. LSA-R.S. 9:335(A)(2)(b). The typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child of frequent and continuing contact with both parents. Evans v. Lungrin, 97-0541, pp. 10-11 (La. 2/6/98), 708 So.2d 731, 737. Joint custody does not necessarily require an equal sharing of physical custody. See Stephens v. Stephens, 02-0402, pp. 7-8 (La.App. 1 Cir.6/21/02), 822 So.2d 770, 777. Only if it can be shown that a fifty-fifty shared physical custody arrangement is feasible and in the best interest of the child, can such an order can be implemented. Stephens, 02-0402 at p. 9, 822 So.2d at 778. Each case will depend on the child's age, the parents' situations, and other factors relevant to that particular custody dispute. Harang v. Ponder, 09-2182, p. 9 (La.App. 1 Cir. 3/26/10), 36 So.3d 954, 962, writ denied. 10-0926 (La. 5/19/10), 36 So.3d 219.
In determining whether shared physical custody is appropriate, the paramount consideration, as in all custody determinations, is the best interest of the child. Evans v. Lungrin, 97-0541 at p. 12, 798 So.2d at 738 (citing LSA-C.C. art. 131). The "best interest of the child" inquiry is the dominant consideration and cannot be "balanced" against any other right or privilege. Stephens, 02-0402 at p. 8, 822 So.2d at 777. In determining the child's best interest, the trial court is guided by the factors listed in LSA-C.C. art. 134.
Louisiana Civil Code art. 134 provides:
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(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.
Further, the trial court is vested with broad discretion in deciding child custody cases. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Thus, a trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Givens v. Givens, 10-0680, p. 6 (La.App. 1 Cir. 12/22/10), 53 So.3d 720, 726.
Mark contends that the trial court erred in failing to award physical custody equally. Mark notes that he and Evlyn live within the same school district about four miles apart. He also notes that he and Evlyn have no scheduling problems or transportation issues. Mark asserts that this is the ideal case in which LSA-R.S. 9:355(A)(2)(b)'s goal of granting the parties equal sharing of their daughter should apply. Mark concludes that there is no evidence in the record to support anything other than an equal sharing custody arrangement.
Mark further avers that the child is already accustomed to an approximate equal sharing of custody due to the arrangement in effect at the time of trial. We note, however, that the informal arrangement did not amount to an equal sharing of time between the parents.
Mark believes that the ideal custody arrangement would allow him to raise his two children together. Mark indicated that S.G. and C.G. have a close relationship and that they enjoy spending time together. Mark testified that the children always ask about each other when he does not have physical custody of both.
Mark also testified that on the weekends Evlyn has allowed him to keep S.G., he does not "even have that whole Sunday." Mark indicated that he returns S.G. to Evlyn at 9:30 a.m. or 10:00 a.m. Sunday morning. Mark testified that he has asked Evlyn to allow him to keep S.G. until Sunday evenings, allowing him to spend more time with S.G., but Evlyn has denied this request. Mark indicated that he returns the child on Sunday morning per Evlyn's request because he is "just trying to keep the peace."
We note that although the record reflects that Evlyn is off every Sunday, the evidence and testimony introduced at trial reveals no other specific details about her work schedule.
Mark also asserts that the trial court erred in failing to designate him as the domiciliary parent. Mark notes that he was the only witness to testify at the hearing and asserts that the record is devoid of any testimonial or other evidence that it is in S.G.'s best interest to designate Evlyn as the domiciliary parent. Mark concludes that the trial court's designation of Evlyn as the domiciliary parent is unsupported by even a scintilla of evidence.
We note, however, that Mark also testified that S.G. "seems to do very well" with the informal arrangement the parties have exercised thus far. Although Evlyn did not testify, Mark did not challenge Evlyn's fitness as a parent and acknowledged that Evlyn has been the child's primary caregiver since she was born—a period of more than three years at the time of the hearing. Mark indicated that Evlyn usually took S.G. to the doctor, and that he had "probably taken her only four times." Mark testified that he had no issues when the child was in Evlyn's care and he did not believe Evlyn was a bad mom. His sole concern was that when Evlyn worked evening shifts, he wanted to know who cared for the child. However, Mark indicated he trusts Evlyn in ensuring that the child is with a "good person" on the evenings she works.
In light of the foregoing, and considering the entirety of the record, we are constrained to conclude that the trial court did not abuse its vast discretion in designating Evlyn as the domiciliary parent or in denying Mark's request for equal sharing. However, we find no reasonable basis in the record for the trial court's denial of Mark's request to have physical custody until Sunday evening on those weekends he has physical custody of S.G. Therefore, we amend the judgment to extend Mark's physical custody on alternating Sundays until 5:00 p.m.
Mark avers that the uncontroverted testimony indicates that the parties agreed that a schedule of equal sharing of custody would be implemented upon Evlyn's graduation from college, but Evlyn refused to honor the agreement. However, we note that there is no evidence in the record reflecting that a specific agreement was ever reached between the parties, which gave Mark the right to exercise the custody he now seeks.
While it would seem advisable for Mark's alternating weekends to coincide with the weekends that he has physical custody of C.G., this issue is not before us.
DECREE
Therefore, we amend the trial court's September 9, 2010 judgment to extend Mark's physical custody on alternating Sundays until 5:00 p.m., and affirm the judgment as amended. Costs of this appeal are assessed equally between the parties.
JUDGMENT AMENDED, AND AFFIRMED AS AMENDED.