Summary
In Beadle, the first circuit noted that to implement a fifty-fifty arrangement, the evidence must show that such an arrangement is both feasible and in the best interest of the child.
Summary of this case from Simmons v. HodgesOpinion
NO. 2020 CA 0264
12-30-2020
Daniel John BEADLE v. Amanda Hoyt BEADLE
Jenel Guidry Secrease, Ponchatoula, LA, Attorney for Plaintiff-Appellant, Daniel John Beadle Sherman Q. Mack, C. Glenn Westmoreland, Emily Guidry Jones, Albany, LA, Attorneys for Defendant-Appellee, Amanda Hoyt Beadle
Jenel Guidry Secrease, Ponchatoula, LA, Attorney for Plaintiff-Appellant, Daniel John Beadle
Sherman Q. Mack, C. Glenn Westmoreland, Emily Guidry Jones, Albany, LA, Attorneys for Defendant-Appellee, Amanda Hoyt Beadle
BEFORE: WHIPPLE, C.J., HIGGINBOTHAM, THERIOT, HOLDRIDGE AND WOLFE, JJ.
HIGGINBOTHAM, J. The father in this child custody and support matter appeals the judgment of the district court that awarded joint custody of two of his minor children to him and their mother, but allocated more custodial time with the mother rather than equal sharing of physical custody, and that ordered him to pay child support to her.
FACTUAL AND PROCEDURAL BACKGROUND
Daniel Beadle and Amanda Beadle have four minor children, Angelina, Ethan, Gabriel, and Dani, who, at the time of the hearing, ranged in age from teenager down to age six. On February 26, 2019, Daniel filed a petition for divorce and for incidental relief. In his petition, he requested joint custody with equal sharing of physical custody of the children and that he be designated as the domiciliary parent. On April 23, 2019, Amanda filed a reconventional demand seeking joint custody of the children with herself designated as the domiciliary parent and reasonable visitation awarded to Daniel. Amanda also requested child support and interim spousal support.
On April 29, 2019, the parties entered into a stipulated interim custody arrangement pending trial. In the stipulation, the parties agreed that Daniel would have physical custody of the parties’ two younger children, Gabriel and Dani, every other weekend from Friday through return of school on Monday morning and physical custody overnight one day during the week, every week. The parties further agreed to share equal physical custody of their older children, Angelina and Ethan, with the schedule being based on "the wishes of the children." Finally, the parties agreed that Daniel would pay to Amanda $1,000.00, per month for child support on an interim basis.
The matter came before the district court for trial on June 25, 2019. After the trial, the district court signed a judgment on July 19, 2019, reflecting the parties’ stipulation of joint custody of their older children, Angelina and Ethan, with physical custody shared equally based on "the children's wishes." The district court awarded the parties joint custody of Gabriel and Dani, with Amanda designated as domiciliary parent. The judgment provided that Daniel shall have physical custody of Gabriel and Dani every other weekend from Friday after school to Monday morning, one day overnight each week, four weeks in the summer, and one-half of the major holidays as set forth in a shared holiday schedule.
The judgment also ordered Daniel to pay Amanda $1,430.44 per month in child support based on Worksheet B for Angelina and Ethan and Worksheet A for Gabriel and Dani. In calculating child support, the district court determined Amanda's monthly income to be $1,256.00 and Daniel's monthly income to be $5,584.00. Finally, the judgment denied Amanda's request for interim spousal support. It is from this judgment that Daniel appeals, challenging the allocation of time periods during which each parent was to have physical custody of the two younger children and the calculation of his child support obligation.
Louisiana Revised Statutes 9:315.9(A)(1) provides, " ‘Shared custody’ means that each parent has physical custody of the child for an approximately equal amount of time." In such a situation, La. R.S. 9:315.9(B) requires the application of Worksheet B, contained in La. R.S. 9:315.20, to calculate child support. Louisiana Revised Statutes 9:315.8(E) states, " ‘Joint Custody’ means a joint custody order that is not shared custody as defined in R.S. 9:315.9." Louisiana Revised Statutes 9:315.8(E)(5) provides, "Worksheet A reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection."
LAW AND ANALYSIS
CUSTODY
In his first assignment of error, Daniel contends that the district court committed manifest error and abused its discretion when it disregarded the feasibility of shared custody. In support of his argument, he cites to La. R.S. 9:335.
Louisiana Revised Statute 9:335 provides, in pertinent part:
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. (Emphasis added.)
The primary consideration and the prevailing inquiry in any child custody matter is whether the custody arrangement is in the best interest of the child. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 740. Likewise, this court has clearly stated, La. R.S. 9:335(A)(2)(a) and (b) call for frequent and continuing contact with both parents, rising to equal sharing of physical custody, if feasible. However, the law does not mandate equal sharing and the trial court is imbued with much discretion in the determination of what constitutes physical custody or feasible, reasonable visitation. The paramount consideration is always the best interest of the child. Caro v. Caro, 95-0173 (La. App. 1st Cir. 10/6/95), 671 So.2d 516, 519 (emphasis added). Thus, only if it can be shown that a fifty-fifty shared physical custody arrangement is, in fact, both feasible and in the best interest of the child, can such an order be implemented. If both prongs are not met, then the court shall institute a custody arrangement that apportions enough time spent by the child with each parent to assure each parent "of frequent and continuing contact" with the minor child. See La. R.S. 9:335(A)(2)(a) ; Stephens v. Stephens, 2002-0402 (La. App. 1st Cir. 6/21/02), 822 So.2d 770, 778.
In this matter, the evidence shows that both parents have done an excellent job of providing loving and stable homes for the children, communicating with each other, and allowing for flexibility in the custody schedules if needed. Neither parent raised any major concerns related to the children being in the care of the other parent. As pointed out by the district court, both Daniel and Amanda are "very good parents to all four kids."
The main worry raised by Amanda regarding shared custody is that the younger children need more consistency and routine during school time, especially Gabriel, who has ADHD. She also expressed concern that Daniel often relies on his mother for school pick up and drop off, and his mother is frequently out of town. Amanda testified that she has a flexible working schedule as her jobs involve working from home or working when the children are not with her. She stated that, prior to the parties’ divorce, she primarily was responsible for taking the children to their dentist and doctor appointments. Amanda acknowledged that Daniel has done a good job with the children on his one day during the school week since the interim judgment. She also stated that if Daniel ever needed assistance during his custodial periods, her family would help. Daniel testified that he works for the Denham Springs Police Department where his current schedule is 6:30 a.m. - 3:30 p.m. during the week. Daniel stated that his work schedule is flexible, and he works weekends when he does not have the children. He said that his mother, who lives next door to him, is able to help him with pickup and drop off from school. Daniel testified that he is able to attend all of the children's activities and doctors’ appointments. During his testimony, Daniel said that the younger children "need to be treated just like the older children. They've been with both of us the whole time since birth, so I don't see why they should be separated now." According to Daniel, Amanda lives about twelve minutes from his home.
In its reasons for judgment, the district court acknowledged that the parties were good parents, but stated that it has a problem with two-two-three custody schedules and prefers week-to-week or three weekends a month. In the end, the district court decided to keep the schedule the parties agreed to in the interim judgment rather than change the schedule. In doing so, the district court stated it wanted "as much consistency as possible" for the children. In making its decision, the district court relied primarily on what the parties were doing in the interim as well as the district court's dislike for a two-two-three custody schedule, rather than considering the feasibility of the parties sharing equal physical custody of the children.
After a complete review of the record, we find a shared physical custody arrangement is, in fact, both feasible under La. R.S. 9:335 and in the best interest of the children under La. Civ. Code art. 134. The Beadles are the exact type of family in which equal sharing of physical custody is best. Daniel and Amanda are both involved, loving parents who have flexible schedules, do not live too far apart, and already share physical custody of their older children. Further, we agree with Daniel's assertion that, because the younger children and older children have never been separated, they should not be separated now. There was no evidence presented to suggest that the children were struggling with consistency when Daniel exercised custody one night during the school week. In fact, the testimony revealed that the children were doing well. The record supports a determination that shared custody will have positive benefits for the children including frequent contact with both parents, as well as constant time with their older siblings as a family unit.
Therefore, we reverse the provision of the district court judgment which awarded Daniel physical custody of Gabriel and Dani every other weekend from Friday after school to Monday morning, and one day overnight each week, and render an implementation order wherein the parties share physical custody on a two-two-three basis, in line as much as possible, with the custody schedule applicable to the parties’ older children. The other provisions regarding shared holidays and summer remain in effect.
In reaching this conclusion, we do not intend to reject the well-settled principle that the district court is afforded great discretion in custody matters. Rather, our decision today stands only for the proposition that under the specific facts presented in this case the district court abused its discretion by focusing on its dislike of two-two-three custody schedules and ignoring that equal sharing of physical custody was both feasible and in the best interest of the children, as required by the law.
CHILD SUPPORT
In his second assignment of error, Daniel contends that "[t]he trial court committed manifest error when it failed to find [Amanda] voluntarily underemployed and failed to impute her with her true earning capacity; rather, it imputed her with minimum wage which is less than her actual earnings." In calculating child support, the district court determined Amanda's monthly income to be $1,256.00. During trial, Amanda testified that she works at EXP Realty as a real estate agent. She stated she had not made any sales that year, but had a sale pending on a house. She said she also works at Bobby's Electric where, she makes about $1000.00 per month, and Revival Temple where she makes about $100.00 per month. Amanda said she also works occasionally cleaning houses and job sites for Brett Silas, but does not do so regularly. Amanda testified that, until the time of trial, she has consistently made $1,100.00 per month in 2019 from Revival Temple and Bobby's Electric. She said her income from her other employers is not steady or guaranteed. She testified that her yearly income for 2018 on her W2 was approximately $17,000.00 and therefore her monthly income was $1,416.66. Amanda twice requested that the district court use her income from previous years because she was making more money then and she said "I know that I'm going to work as hard as I can to make more money than I'm making right now." Given that Amanda acknowledged she has a pending home sale and twice asked the court to use her earnings as reflected in her previous W2's as her income, we find that Amanda's income for determining child support should be set at $1,416.66, in accordance with her 2018 earnings.
Additionally, as this court has now granted the parties shared physical custody of all four children as defined by La. R.S. 9:315.9(A)(1), child support should be calculated based entirely on Worksheet B. After using the same income for Daniel as used by the district court, Daniel's child support obligation to Amanda under Worksheet B is reduced to $888.38 per month. (See attached worksheet.)
The reduction in child support shall be prospective from the date this opinion is rendered.
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CONCLUSION
For the foregoing reasons, the provision in the district court judgment awarding Daniel physical custody of Gabriel and Dani every other weekend from Friday after school to Monday morning, and one day overnight each week is reversed. Judgment is rendered awarding the parties joint custody with shared physical custody of Gabriel and Dani on a two-two-three shared custodial schedule as follows: one week, Amanda's nights are Monday, Tuesday, Friday, Saturday, and Sunday and Daniel's nights are Wednesday and Thursday. For the next week, Daniel's nights are Monday, Tuesday, Friday, Saturday, and Sunday, and Amanda's nights are Wednesday and Thursday. All pick up and drop off should be at school if feasible, and if there is no school, the children should be returned at 8:00 a.m. If the parties prefer a different custody schedule such as week-to-week, or different days, they are free to change the schedule as well as pick-up and drop-off times, as long as any agreed upon changes are reduced to writing and result in equal custodial time for both parties.
Additionally, the provision in the judgment ordering Daniel to pay Amanda $1,430.44 per month in child support is reversed and we render judgment ordering Daniel to pay Amanda $888.38 per month in child support based on Worksheet B. All other provisions in the judgment regarding summer and holiday schedules, insurance, and co-parenting guidelines shall remain in effect. Costs of the appeal are assessed equally to Daniel Beadle and Amanda Beadle.
AFFIRMED IN PART, REVERSED IN PART AND RENDERED.
OBLIGATION WORKSHEET B SHARED CUSTODY
?
Holdridge J., concurs with reasons
Wolfe, J., dissents with reasons
HOLDRIDGE, J., Concurring.
I respectfully concur. In accordance with La. R.S. 9:335, I would remand this matter to the trial court for the entry of a joint custody implementation order and a child support order consistent with this opinion.
WOLFE, J., dissenting.
The paramount consideration in every child custody determination is the best interest of the child. La. Civ. Code art. 131 ; Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735. This is a fact-intensive inquiry that requires the weighing and balancing of a variety of factors based on the evidence presented. C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So.3d 16, 33. Because of the trial court's opportunity to evaluate witnesses, and taking into account the proper functions of the trial and appellate courts, great deference is owed to the trial court's custody determination. Martello v. Martello, 2006-0594 (La. App. 1st Cir. 3/23/07), 960 So.2d 186, 191. The appellate court should not disturb the trial court's determination absent a clear showing the trial court abused its discretion. C.M.J., 156 So.3d at 29.
The trial court presided over the trial in this matter, heard the testimony of the witnesses, and considered the evidence presented. Affording due deference to the trial court, I cannot agree that the trial court abused its discretion in awarding joint, rather than shared, custody. I respectfully dissent and would affirm the trial court's judgment.