Creary v. Creary

Full title: ERLINE WRIGHT CREARY v. ANSEL LLOYD CREARY

Court: Court of Appeal of Louisiana, First Circuit

Date published: Feb 28, 1984

447 So. 2d 60 (La. Ct. App. 1984)

Opinion

No. 83 CA 1042.

February 28, 1984.

APPEAL FROM FAMILY COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE JENNIFER LUSE, J.

Leo J. Berggreen, Baton Rouge, for plaintiff-appellee Erline Wright Creary Vallery.

Johnnie A. Jones, Baton Rouge, for defendant-appellant Ansel Lloyd Creary.

Before LOTTINGER, EDWARDS and ALFORD, JJ.

LOTTINGER, Judge.

This is a summary proceeding instituted by plaintiff, Erline Wright Creary, seeking a change of custody to herself, and in the alternative, an award of joint custody. The trial court awarded joint custody and ordered both parties to submit plans of joint custody to the court on or before June 29, 1983. The defendant-father appeals.

La.C.C. Art. 146, as amended by Act 307 in 1982, effective January 1, 1983, legislatively provides for a preference for joint custody in child custody cases. La.C.C. Art. 157 makes the provisions of Article 146 applicable to permanent custody cases. Thus, joint custody is presumed unless the parent requesting sole custody proves that it would not be in the best interest of the child.

In the instant case we have searched the record as well as making inquiries to the trial court to determine whether a plan of implementation has been approved or imposed by the trial court. None has been found.

We are of the opinion that in amending Article 146 the legislature intended that when joint custody is awarded, a plan of implementation of joint custody be included in the decree. Otherwise, inasmuch as a joint custody decree is an appealable judgment, one parent would be forced within the applicable time period to appeal said judgment. Additionally, when the plan of implementation is ultimately approved or imposed by the trial court, a second or subsequent appeal could result. Thus, the question of joint custody and the implementation thereof would arrive in the appellate court for review by separate appeals. This is not desirable and certainly not what the legislature intended.

Therefore, under the authority of La. Code Civ.P. Art. 2164, we remand this case to the Family Court for the purpose of the approval or imposition of a plan of implementation and the inclusion of same in the custody decree.

Costs of this appeal are assessed to the appellant. REMANDED.