Brown v. BrownBrown v. Brown
The defendant, Mary Debra Louis Brown, appeals the judgment of the trial court awarding joint custody of the two minor childrеn of the marriage, Melissa Gaye Brown, born November 1, 1981, and Terry Lynn Brown, born July 21, 1983, to her and her former husband, the plaintiff, Joseph Brown, Jr. For the following reasons we reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.
FACTS
Mary left the matrimonial domicile on April 7, 1994, with the two children and moved in with her mother. Joseph filed a petition for divorce under
ASSIGNMENTS OF ERROR
Mary asserts the following assignments of error:
(1) the trial court disregarded the preference of the children;
(2) the trial court disregardеd the testimony of Joseph Brown, Jr., Mary Brown, Melissa Brown, Davita Brown, and Terri Brown relative to Mary Brown being a good mother;
(3) the trial court held Mary Brown‘s adulterous affair against her in making the custody decision;
(4) the trial court erred in considering that the children lived in the overcrowded home of the maternal grandmother; and
(5) the trial court imputed the responsibility of the children‘s lack of communication with the father to the mother.
Because the trial judge issued no written or oral reasons, wе cannot tell what evidence was relied on in reaching this decision. As such, we will review the entire record in light of the standards used to determine custody.
CUSTODY
Absent a clear showing of an abuse of discretion, the trial court‘s award of custody will not bе disturbed. Mayeux v. Mayeux, 93-1603 (La.App. 3 Cir. 6/1/94); 640 So.2d 686. Each child custody case must be viewed in light of its unique facts and circumstances with the principal goal of reaching a decision which embodies the best interest of the children. Muller v. Muller, 94-281 (La.App. 3 Cir. 10/5/94); 643 So.2d 478. “In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.”
DISCUSSION
In support of the trial court‘s ruling, Joseph cites the decision of this court in Bynog v. Bynog, 95-173 (La.App. 3 Cir. 7/26/95); 663 So.2d 86, and the First Circuit‘s decision of Remson v. Remson, 95-1951 (La.App. 1 Cir. 4/4/96); 672 So.2d 409, for the proposition that the six-month custodial plan is mandated by law. After a careful review of these cases, we find that this reliance is misplaced.
In Bynog, the trial court was confronted with a situation in which the mother moved to Arkansas while the father remained in Louisiana. The trial court granted joint custody to the parents naming the father the domiciliary parent and granting the mother visitation on alternating weekends, major holidays, plus four separate one week periоds. Additionally, the trial court stated that the mother could not exercise these visits outside the jurisdiction of this state. At the time this decision was rendered,
Bynog is clearly distinguishable from the case sub judice. In that case, the children were of pre-school age and the parties lived in separate states. Perhaps in that situation, physical custody for six-month periods might aid in fostering a close relationship with each parent. However, in the present scenario, Melissa and Terry are teenagers and their parents live in the same town. We feel that there are alternatives to a strict and mechanical six-month division of domiciliary status that would continue the present relationship the children have with their parents.
Furthermore, the legislature amended
Although we are mindful that the petition in the case sub judice was filed before the legislature amended this statute, we are compelled to apply the law as it is written now. In Segura v. Frank, 93-1271, p. 15-16 (La.1/14/94); 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), the supreme court addressed the effect of an amendment to a law pending the outсome of a suit:
The general rule is that appellate courts will not consider issues raised for the first time on appeal. See, e.g., Fried v. Bradley, 219 La. 59, 87, 52 So.2d 247, 257 (1950), and cases cited therein. Another general rule, however, is that an appellate court is bоund to adjudge a case before it in accordance with the law existing at the time of its decision. See Dripps v. Dripps, 366 So.2d 544 (La.1978), and cases cited therein. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered. See id. at 547-48. Needless to say, where the law has chаnged after the trial court‘s decision, the applicability of the new law can be argued for the first time only on appeal.
In this situation, we find that the application of
When the intervention of a court is necessary to bring about a juridical solution (for instance a decree revoking visitation rights as in this case) there will be no retroactivity and the court will apply the
law in force at the time the judgment is pronounced. The visitation rights at issue here have not been exercised completely; there is an expectation that they will be exercised in the future during the duration of the law as amended by Act 458 of 1978. Exercise of these rights in the future, therefore, are properly the province of the legislature to regulate. What has transpired in the past in this rеgard is not affected.
Because we find the scenario in Dripps analogous to the one at hand, we feel it is proper to extend this reasoning to custody determinations.
In Remson, 672 So.2d at 412, the court, citing
L.S.A.-R.S. 9:335 enacted by Acts 1993, No. 261, § 5, and the previous amendments to L.S.A.-C.C. art. 131(D) as amended by Acts 1993, No. 905,§ 1, represent a substantial departure from prior law. Previously, the courts consistently held that joint custody did not mean a 50-50 sharing of time. Brazan v. Brazan, 93-2369 (La.App. 1 Cir. 6/24/94), 638 So.2d 1176. However, the legislative amendments indicate a сlear intent to foster an equal sharing of custody when it is feasible and in the best interests of the children. We believe that the best interest of the child remains the paramount concern in making custody determinations; however, that interest must be balanced with a parent‘s right to equally share the physical custody of the child where feasible. See Bynog v. Bynog, 95-173 (La.App. 3d Cir. 7/26/95), 663 So.2d 86.
(footnote omitted).
We decline to adopt the assertion that the law mandates an equal sharing of physical custody.
Furthermоre, we disagree with the statement that, although the best interest of the child is still the paramount concern, this interest must be balanced with the parent‘s right to equally share the physical custody of the child where feasible. If the best interest of the сhild is paramount, it cannot be balanced with the parent‘s right to equally share custody.
While we agree that an equal sharing of the children by the parents should be ordered by the trial court when feasible and in the best interest of the children, we reject the notion that a fifty-fifty or a six-month sharing plan is necessarily in the best intеrest of the children. Certainly, the Legislature made the same assessment when it amended the statute to its current reading. That is especially true in the instant case where the children expressed a desire to stay with their mother who had been thеir primary caregiver. Further, we believe the intent of the statute can be achieved, and still provide the children with the stability of a primary caregiver and an equal or near-equal sharing of the children with the other parent, by decreеing one parent as the domiciliary parent and providing the other parent with substantial custodial privileges on a frequent and continuing basis. We, therefore, reverse the trial court‘s decision and remand for further proceedings consistent with this opinion and in the light of the 1995 amendment to
CONCLUSION
For the reasons stated above, the decision of the trial court is reversed and remanded for further proceedings consistent with this opinion. Costs of this appeal shall be divided equally betwеen the parties.
REVERSED AND REMANDED.
WOODARD, J., dissents.
Notes
Art. 134. Factors in determining child‘s best interest
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 caрacity 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 thе 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 оr 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 agе 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.