Opinion
No. 2008 CU 1974.
December 23, 2008. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE FAMILY COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, LOUISIANA TRIAL COURT NO. 161,114 HONORABLE LUKE LAVERNGE, JUDGE.
JOHN N. SAMAHA, BATON ROUGE, LA, ATTORNEY FOR PLAINTIFF-APPELLEE DANA LOVETT HUMPHREYS.
DEBORAH P. GIBBS, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLANT CLAY RANDALL HUMPHREYS.
BEFORE: PETTIGREW, McDONALD, AND HUGHES, JJ.
Clay Randall Humphreys appeals from a judgment denying his request that Dana Lovett Humphreys be ordered to place their daughter in the daycare facility chosen by him, namely, Christian Life Academy, and denying his request for "right of first refusal" when Dana Lovett Humphreys is out of town. For the reasons that follow, we affirm.
The "right of first refusal" in custody matters applies where each parent is given the right to physical custody the minor child in the event the other custodial parent is out of town or otherwise unable to exercise his/her physical custody of the child.
The record reflects that Clay and Dana were married on February 14, 2004, and one child, D.V.H., was born of the marriage. On February 13, 2007, Dana filed a petition for divorce, requesting sole custody of the minor child, or in the alternative, joint custody, designating her as the domiciliary parent. On March 7, 2007, Clay reconvened with a reciprocal and nearly identical demand, except for his request that in the alternative, he be named the domiciliary parent. Following a number of hearings on rules and, finally, a trial on the merits on September 6 and 19, 2007, the court rendered judgment on January 17, 2008, awarding the parties joint custody, with Clay designated as the domiciliary parent. The judgment further ordered the parties to submit a joint custody implementation plan.
To protect the identity of the minor involved in this appeal, we have used initials rather than her name in this opinion. Uniform Rules-Courts of Appeal, Rule 5-2.
This judgment is the subject of a separate appeal by Dana that is also being considered by this panel. See Humphreys v. Humphreys, 2008-1628 (La.App. 1 Cir. _/_/_) (unpublished decision).
On February 20, 2008, Clay filed a rule to set the custody schedule, terminate spousal support, and for a determination of child support. The rule also requested that Dana be ordered to use the daycare facility chosen by Clay, i.e., Christian Life Academy, and that each parent have the "right of first refusal." Noting that the parties had been unable to reach an agreement with regard to a joint custody implementation plan, Clay submitted his "Joint Custody Plan" and asked that Dana be ordered to show cause why his plan should not be implemented by the court. Dana responded, alleging that "[d]espite the claim by Clay . . . that the parties have been unable to reach an agreement regarding a joint custody implementation plan, in truth and in fact, there has been no attempt by the parties to reach an agreement."
The matter proceeded to hearing on February 26, 2008, at which time the court heard argument from counsel and briefly questioned Clay and Dana. In a judgment rendered February 26, 2008, and signed April 23, 2008, the court denied Clay's request that D.V.H. be enrolled in one daycare, Christian Life Academy. With regard to the right of first refusal, the court denied Clay's request for the right of first refusal for times when Dana elects to leave the minor child with her parents during her weeks of physical custody; a limited right of first refusal was granted to Clay if Dana's parents are unavailable to keep the minor child during Dana's weeks of physical custody. The court further ordered that either parent may visit with the minor child at daycare during the other parent's week of physical custody, and may take the child out for lunch for a period not to exceed one hour, provided that such is permitted by the respective daycare. It is from this judgment that Clay has appealed, arguing that the court erred in failing to uphold his decision, as the domiciliary parent, to enroll the minor child in his choice of daycare facility, and in denying his request for right of first refusal to care for the minor child when Dana is out of town.
Joint custody determinations are governed by La.R.S. 9:335, which provides as follows:
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.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. 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.
On appeal, Clay argues that as the domiciliary parent, he has the statutory authority to make all decisions affecting the minor child. He further contends that the burden of proving that a major decision by the domiciliary parent, such as the selection of a daycare provider, is not in the best interest of the minor child is on the non-domiciliary parent. Clay maintains the court incorrectly assigned the burden of proof in this matter to him rather than Dana, who had objected to Clay's decision regarding the daycare issue. Clay further asserts that had the burden of proof properly been placed on Dana, the court would have found that she failed to prove that Clay's decision to place the minor child in Christian Life Academy was not in the best interest of the child. With regard to the right of first refusal, Clay argues there is no reason for him to be denied physical custody of his minor child if Dana is out of town for an entire week. He contends the court's decision is a violation of his primary right to custody and an inappropriate and unauthorized encroachment on his custodial time with his daughter.
Dana contends that in rendering and signing the judgment on the issues of daycare and the right of first refusal, the court was imposing its own order in light of the parties' inability to agree on a joint custody implementation plan as previously ordered by the court. In the alternative, Dana argues the evidence supports a finding that she overcame the presumption that the decisions were in the best interest of the minor child.
A review of the transcript from the hearing reveals that the court was very familiar with the parties in this case and was not at all pleased to learn that the parties had not been able to come to an agreement with regard to a joint custody implementation plan. The following colloquy occurred:
THE COURT: Now, Mr. Humphreys, are you cooperating in establishing a custody plan between you and Ms. Humphreys, are you cooperating?
MR. HUMPHREYS: Yes.
THE COURT: Well, Ms. Gibbs [counsel for Mr. Humphreys]?
MS. GIBBS: Yes.
THE COURT: Did you and Mr. Samaha [counsel for Ms. Humphreys] get together to implement this plan as ordered by the court?
MS. GIBBS: Your Honor, we have swapped plans but we disagree.
THE COURT: Over what? Tell me and I will tell you right now what it's going to be.
MS. GIBBS: The big issue in this plan . . . Ms. Humphreys want[s] in the plan that there is no right of first refusal during her week. . . .
THE COURT: . . . If she leaves town during her week and she leaves the child with her parents, that's one thing. If she leaves town and leaves [the child] with some stranger, that's another issue. He would get the right of first refusal at that time.
MS. GIBBS: That's not what the client said it was going to be.
THE COURT: That is what I'm telling you it's going to be. Since you can't come up with a plan, that's my plan and I want you to write it up that way.
MR. SAMAHA: That's acceptable with us.
THE COURT: What else?
MS. GIBBS: It's not acceptable-
THE COURT: It doesn't matter whether Mr. Humphreys accepts it or not that is the ruling of the court.
MS. GIBBS: How many weeks-we understand that-
THE COURT: If it's more than a week, [then] he gets the right to first refusal, even if she leaves the [child] with her mother, all right?
MS. GIBBS: Yes sir.
THE COURT: What else do we have a dispute on, that you need clarification on?
The court then questioned the parties about the daycare issue and noted as follows: "You are talking about two different places, the daycare in Walker and Christian Life Academy. During her week if she thinks that it's best for the child to be at the Walker daycare that she is paying for, that's where the child will be."
It is well settled that a trial court has great discretion in custody matters and its decisions will not be disturbed unless legal error or an abuse of that discretion is shown. Wolfe v. Hanson, 2006-1434, p. 11 (La.App. 1 Cir. 5/2/08), 991 So.2d 13, 20, writ denied, 2008-1205 (La. 6/27/08), 983 So.2d 1292. We find no such error or abuse of discretion in this case. Because the parties failed to submit a joint custody implementation plan as previously ordered by the court in its January 17, 2008 judgment, the court had no choice but to insinuate itself into this already hotly contested matter and rule on these issues. Accordingly, we affirm the judgment below and assess all costs associated with this appeal against defendant-appellant, Clay Randall Humphreys. We issue this memorandum opinion in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1B.
AFFIRMED.
The majority has affirmed the rulings of the trial court in denying Mr. Humphrey's right of first refusal to have the minor child at times when the mother left the child with her parents. I agree.
However, as to the choice of day care, I believe the trial court committed a legal error in failing to support the decision by Mr. Humphreys, the domiciliary parent. As noted, La.R.S. 9:335 B(3) states:
The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
Mr. Humphreys has exercised his authority in choosing the day care facility for the child. Ms. Humphreys has chosen a different one that is closer to her home. However, she works in Baton Rouge in close proximity to the facility chosen by Mr. Humphreys. I believe the decision of the trial court, now affirmed by the majority, abrogates his statutory right to make these decisions on behalf of the child. For this reason, I respectfully dissent from this part of the opinion.