108 So. 3d 277
La. Ct. App.2013Background
- St. Philip filed a custody and support petition for minor LStP, born May 14, 2008, alleging she is the biological mother and seeking sole custody; Montalbano is the biological father.
- A domestic abuse petition and a custody evaluation by Dr. Amy Dickson occurred; trial was held June 2011, but the appellate record lacks the transcript and exhibits, only the trial court’s oral reasons for judgment are in the record.
- The trial court’s custody plan provided joint custody, co-domiciliary parents, joint major decisions, day-to-day decisions by the visiting parent, and detailed visitation schedules and conditions.
- The January 9, 2012 judgment stated the minor’s name would remain LStP, with no discussion of a surname change, and instructed parents not to involve the child in issues about custody, finances, or name changes.
- Post-judgment consent judgments existed; Ms. St. Philip appealed a surname issue; Mr. Montalbano raised two other issues (transportation and domiciliary status), but the appeal record had limitations.
- The court affirmed the trial court’s judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surname change future decision validity | St. Philip argues the judgment contravenes Louisiana law requiring surname changes. | Montalbano contends the language is tentative and does not dispense with statutory requirements. | Language is tentative; does not change law; affirmed. |
| Visitation transportation allocation accuracy | St. Philip contends the record supports her proposed transportation arrangement. | Montalbano argues for a different allocation. | Appellee’s issue not properly before the court due to lack of a notice of appeal from the February 14, 2012 stipulation; declined. |
| Domiciliary status or equal physical custody | Montalbano seeks domiciliary status or equal custody. | Issue not properly reviewable; limited record and lack of pleadings. | Record insufficient to review; no abuse found; affirmed. |
Key Cases Cited
- Jones v. Department of Police, 72 So.3d 467 (La.App. 4 Cir. 2011) (pleading/arguments not addressed on appeal barred new issues on appeal)
- Olson v. Olson, 900 So.2d 52 (La.App. 5 Cir. 2005) (duty to secure transcript or facts on appeal; record inadequacy falls on appellant)
- Winn v. State, Dep’t of Natural Resources, Office of Conservation, 104 So.3d 16 (La.App. 2 Cir. 2012) (equivalent to appeal by answer; separate notice required for each final judgment)
- Molony v. Harris, 60 So.3d 70 (La.App. 4 Cir. 2011) (recognizes co-domiciliary exception when valid implementation order specifies authority)