Opinion
Nos. 2011 CU 0343 Consolidated With 2011 CU 0344.
June 10, 2011. NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE FAMILY COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, LOUISIANA TRIAL COURT NUMBER 167,103 C/W 171,553 HONORABLE ANNETTE M. LASSALLE, JUDGE.
Anthony T. Marshall, Gonzales, LA, and Tiffany M. Peterson, Plaquemine, LA, Attorneys for Appellant, Acquelyn W. Knighten.
Michael A. Betts, Denham Springs, LA, Attorney for Appellee, Kelvin Thomas.
BEFORE: CARTER, C.J., GAIDRY AND WELCH, JJ.
In this child custody dispute, the mother Acquelyn McCallop (now Knighten) appeals a judgment awarding the parties joint custody of the minor child and designating the father, Kelvin Thomas, as the domiciliary parent, subject to specific periods of physical custody with Acquelyn Knighten. For reasons that follow, we affirm in compliance with Uniform Rules — Courts of Appeal Rule 2-16.1(B).
Acquelyn Knighten and Kelvin Thomas were awarded joint custody of their minor child. However, we note that both parties and the trial court have used the term "visitation" with reference to Acquelyn Knighten's custodial time. "Visitation," as provided for in La.C.C. art. 136, applies only when a parent does not have custody or joint custody. The time that parents with joint legal custody share with their children is more properly described as physical custody allocation of a joint custody plan, rather than as visitation. La.R.S. 9:335; Cedotal v. Cedotal, 2005-1524, p. 5 (La. App. 1st Cir. 11/4/05), 927 So.2d 433, 436; see Evans v. Lungrin, 97-0541, 97-0577, pp. 10-11 (La. 2/6/98), 708 So.2d 731, 737.
Acquelyn Knighten and Kelvin Thomas were involved in a relationship that resulted in the birth of one child. In November 2008, in proceedings commenced on behalf of the minor child by the State of Louisiana, Department of Social Services, Support Enforcement Services, the parties entered into a stipulated interim visitation schedule that provided Kelvin Thomas with specific visitation with the minor child. Thereafter, Acquelyn Knighten filed a petition for custody seeking sole custody of the child, with supervised visitation to Kelvin Thomas. In her petition, she alleged that Kelvin Thomas's visitation with the child had been inconsistent and that he had, on more than one occasion, removed the minor child from the grandmother's supervision. In response, Kelvin Thomas filed an answer and reconventional demand, alleging that Acquelyn Knighten had refused to allow him to exercise his visitation. He requested that Acquelyn Knighten be held in contempt for her refusal to allow him to exercise visitation in accordance with the stipulated interim visitation schedule and that it was in the best interest of the child that he be granted primary custody of the child, with Acquelyn Knighten having reasonable visitation.
The record contains judicial admissions by both Kelvin Thomas and Acquelyn Knighten that Kelvin Thomas is the natural and biological father of the minor child, and the judgment on appeal adjudicates paternity. No issues have been raised on appeal with regard to that portion of the judgment.
After a trial, on June 30, 2010, the trial court signed a judgment that, among other things, dismissed Acquelyn Knighten's request for sole custody, awarded the parties joint custody of the minor child, and designated Kelvin Thomas as the domiciliary parent of the child, subject to specific physical custodial periods with Acquelyn Knighten. From this judgment, Acquelyn Knighten appeals.
On appeal, Acquelyn Knighten asserts that the trial court erred in failing to apply the heavy burden of proof set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) and in allowing Kelvin Thomas to make a statement concerning Acquelyn Knighten's mental capacity without other corroborating evidence.
The burden of proof set forth in Bergeron provides that once a considered decree of permanent custody has been rendered by a court, the proponent of a change in custody bears the heavy burden of proving that a change in circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron, 492 So.2d at 1200. Notably, the Bergeron burden of proof is only applicable to the modification of a "considered decree." A "considered decree" is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Evans v. Lungrin, 97-0541, 97-0577, pp. 12-13 (La. 2/6/98), 708 So.2d 731, 738. The judgment on appeal before us is not a modification of a considered decree (or a modification of a consent decree), but rather, it is an initial setting of custody. Thus, the burden of proof set forth in Bergeron is inapplicable, and this assignment of error has no merit.
In Acquelyn Knighten's second assignment of error, she contends that the trial court erred in allowing Kelvin Thomas to testify about Acquelyn Knighten's mental capacity. Essentially, during Kelvin Thomas's testimony, he stated that Acquelyn Knighten came to his home late one night and asked if the minor child could stay with him because she was unable to take care of him at the time. Kelvin Thomas testified that it was his understanding that during this time, Acquelyn Knighten was at mental health treatment facility. Acquelyn Knighten denied that she had been in a mental health facility, and asserts without corroborating medical records or expert testimony, it was error for the trial court to allow this testimony. However, during the trial, Acquelyn Knighten did not contemporaneously object to Kelvin Thomas's testimony on this issue. To preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. Chauvin v. Chauvin, 2010-1055, 2010-1056, p. 7 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 571. Since Acquelyn Knighten failed to contemporaneously object to this testimony during trial, she is precluded from complaining about this testimony on appeal. Thus, this assignment of error has no merit.
Furthermore, after examining the entire record and studying the trial court's reasons for judgment, we find that the factual findings concerning the child's best interest and the credibility evaluations of the parties expressed by the trial court are reasonable, and are fully supported by the evidence in the record. Therefore, we do not find that the trial court abused its discretion in awarding the parties joint custody of the child, in designating Kelvin Thomas as the minor child's domiciliary parent, or in its determination as to the proper allocation of physical custody as set forth in the June 30, 2010 judgment.
Louisiana Civil Code article 131 provides "[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." Louisiana Civil Code article 134 sets forth the factors that may be considered by the court in determining the best interest of the child. The "best interest of the child" test under La.C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 2006-0594, p. 5 (La. App. 1st Cir. 3/23/07), 960 So.2d 186, 191. Hence, every child custody case is to be viewed on its own particular set of facts and the relationships involved, with the paramount goal of reaching a decision that is in the best interest of the child. Id.
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. Martello, 2006-0594 at p. 5, 960 So.2d at 191-92.
For all of the above and foregoing reasons, the June 30, 2010 judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, Acquelyn Knighten.