Opinion
No. CA 07 00010.
May 2, 2007.
APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BEAUREGARD, NO. 2005-0700, HONORABLE STUART S. KAY, JR., DISTRICT JUDGE.
AFFIRMED.
Charles A. "Sam" Jones, III, Attorney at Law, DeRidder, Louisiana, Counsel for Defendant/Appellant: Linda Yancey.
David L. Wallace, Attorney at Law, DeRidder, Louisiana, Counsel for Defendant/Appellant: Linda Yancey.
Lisa K. Nelson, Williams Nelson, Leesville, Louisiana, Counsel for Plaintiff/Appellee: David Yancey.
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Michael G. Sullivan, Judges.
Linda Yancey appeals a judgment naming her former husband, David Yancey, as the domiciliary parent of their three children and awarding Linda physical custody of the children on specified weekends, holidays, and summer weeks. For the following reasons, we find no error and affirm.
Factual and Procedural Background
David and Linda were married on July 19, 1998, in Beauregard Parish, Louisiana, where they established their matrimonial domicile. Three children were born of the marriage: Charles "Charlie" Wayne, age 13; David "Alex" Alexander, age 11; and Katie Michelle, age 7. The parties separated on December 22, 2004, when Linda moved into a house behind the family home. On July 20, 2005, David filed for divorce. Initially, David sought joint custody of the children, with the parties to enjoy equal sharing of custody on alternating weeks. However, after Linda sought to be named the children's domiciliary parent and had requested child support, David filed for sole custody.
At the time of the hearing on October 9, 2006, David and Linda were each residing with other partners. David had moved to New Llano in Vernon Parish, Louisiana, where he was residing with his fiancée, Shannon Carvajal, and Linda was residing with her lesbian partner, Jaquitta Wilson, and with Ms. Wilson's teenage daughter, Michelle, who babysat for the children after school. By agreement, the parties had been sharing custody of the children in alternating weeks since July of 2005. At the conclusion of the hearing, the trial court awarded the parties joint custody, with David as the domiciliary parent, and effectively terminated the equal sharing of custody by awarding Linda physical custody of the children on specified weekends, holidays, and summer weeks. In the same judgment, the trial court also granted a divorce as prayed for by David, finding that the parties were mutually at fault in the dissolution of the marriage.
In formulating the plan of joint custody, the trial court reviewed the factors in La.Civ. Code art. 134. The trial court first noted those factors in which it considered the parties equal, including their love, affection, and emotional ties with the children; their capacity to provide food, clothing, and shelter; their history as equal caretakers since separating; and their current living arrangements with other romantic partners. However, the trial court then noted several factors that would favor David over Linda, including that David was more committed to the children's religious education; that David provided the children with a more structured environment in areas such as their bedtimes and homework; that the children felt safer in David's home, which they reported had less cursing and shouting; and that the children believed that David spent more quality time with them. Although the trial court found the children too young to form an opinion as to which parent they wished to live with, the trial court, nonetheless, considered the concerns they expressed to the court and to the evaluating psychologist, including their dissatisfaction with the shared custody arrangement, which they described as confusing and unstable; their dislike of Michelle as a caretaker, whom they perceived as unkind; and their difficulty in accepting their mother's relationship with Ms. Wilson, even though they had not been exposed to anything overtly sexual in their home. Concerning Ms. Wilson, the trial court expressed its concern that she had a prior felony conviction for a drug-related offense and that, in the psychological reports, Linda seemed to doubt the stability of that relationship. The trial court did note the presence and involvement of Linda's extended family as one factor in her favor, but it did not consider this factor to be primary, but rather only one of many to be weighed.
Louisiana Civil Code Article 134 provides:
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 capacity 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 the 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 or 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 age 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.
Opinion
In her first assignment of error, Linda argues that the trial court erred in naming David as the children's domiciliary parent, considering that David did not have a stable employment history during the marriage, that Linda was more involved with the children's medical and educational needs, and that David's anticipated change in the children's school district would adversely affect their oldest child, who is vision-impaired. In her three remaining assignments of error, Linda argues that the trial court erred in finding that David did not speak negatively about Linda in the children's presence, that Linda inappropriately discussed extra-marital issues with the children, and that the children were affected by Linda's lesbian relationship.
This court summarized the principles governing the standard of review in child custody cases in Bergeron v. Clark, 02-493, p. 3 (La.App. 3 Cir. 10/16/02), 832 So.2d 327, 329, writ denied, 03-134 (La. 1/29/03), 836 So.2d 54 (quoting State ex rel. AR, 99-813, p. 8 (La.App. 1 Cir. 9/24/99), 754 So.2d 1073, 1077-78) (citations omitted) (emphasis added), as follows:
In cases involving the custody of children, the trial court is vested with a vast amount of discretion. The trial court is in a better position to evaluate the best interest of a child because of its superior opportunity to observe the parties and the witnesses who testified at the trial. As an appellate court, we must afford great deference to the trial court's decision, not only because of that court's better capacity to evaluate witnesses, but also because of the proper allocation of trial and appellate functions between the respective courts. Thus, the trial court's decision will not be disturbed on review except in the clearest case of abuse of the trial court's great discretion.
In Bergeron, 832 So.2d 327, this court went on to reverse the trial court's ruling, after pointing out that the trial court failed to mention whether it considered any of the factors of La.Civ. Code art. 134, failed to identify which factors in a "home study" that it relied upon in favoring one parent over the other, and failed to discuss how the testimony at trial related to the best interest of the child. In the present case, however, the trial court conducted a detailed analysis of Article 134 as it applied to the facts of this case, and it clearly stated which portions of the psychological evaluation and the testimony at trial that it relied upon in reaching its decision.
As Linda points out, the record reveals that David did not have a stable work history during the marriage and that Linda was actively involved in getting the Beauregard Parish school authorities to meet the special needs of their vision-impaired child. She also questions David's commitment to the children's religious education, considering that he never attended church during their marriage.
As the trial court reasoned: "Neither party has been free from fault in the past. But I am dealing with the current situation." In assessing that situation, the trial court noted David's increasing role in raising the children, stating: "The mother may have early on in the marriage been a primary caregiver; but as the marriage has dissolved, I think the father has become a primary caregiver in recent years to the extent that he could be considered on an equal level there." The trial court's conclusion on this point is supported by the parties' equal sharing of custody through the time of trial. The record also reveals that David has been taking the children to church, has taken classes to convert to Catholicism, and would like the children to be baptized, whereas Linda has only taken them to church on one occasion, namely the Saturday before trial.
Although the trial court considered the children to be too young to choose which parent they wished to live with, it did take into consideration the conditions the children reported about each household to Dr. Daniel Lonowski, the evaluating psychologist, and to the trial court in a closed courtroom. As noted in the psychological reports prepared by Dr. Lonowski, both Charlie and Katie found the shared custody arrangement confusing and unstable, with Charlie stating that he did not like getting used to one place, then having to leave it. Charlie and Katie preferred the food in their father's home, although Alex considered both households to be equal in regard to meals and homework. All three children described Ms. Wilson and Michelle as "mean" and noted that they cursed and smoked, although Katie told the trial court that Ms. Wilson could be "very nice." Katie related an incident where Michelle dragged her across the carpet, causing a "rug burn"; Charlie thought that Michelle was abusing his cat; and Alex described an incident in which Michelle struck Katie with a belt buckle. The children described Ms. Carvajal as "nice" or "kind," but Katie told the trial court that she could be "grumpy" just like Ms. Wilson and Michelle. Dr. Lonowski concluded that Charlie perceived his father to be the more competent parent and that both Katie and Alex felt safer and more peaceful in their father's home. The trial court also was concerned about the presence of a convicted drug offender in Linda's home, even though Ms. Wilson stated that she was complying with the terms of her probation. These considerations all support the trial court's decision to end the shared custody arrangement and to name David as the domiciliary parent.
Linda also contends that the trial court made several factual errors by stating that David did not speak negatively of Linda in the presence of the children, that Linda inappropriately discussed extra-marital issues with the children, and that Linda's lesbian relationship affected the children. Her basis for these contentions is that David told the children she was "gay," whereas she declined to discuss her relationship with Ms. Wilson with the children, implying David is responsible for any effect that her relationship with Ms. Wilson has on the children. After reviewing the record, we cannot conclude that the trial court made any error warranting reversal based upon these assignments. The children reported to Dr. Lonowski that they witnessed Linda and Ms. Wilson hugging and that they knew they slept in the same bed, leading the trial court to conclude that "neither parent is fooling anybody based upon my conversations with the children and the children's conversation with the psychologist . . . [T]he children without exception expressed being uncomfortable with that relationship, feeling that it was not right." Additionally, Linda does not deny that she has told the children that David has had "affairs."
The trial court apparently believed that both parents could do a better job with the children, but it found the father to be a more positive influence in their lives after applying the factors of La.Civ. Code art. 134. We find that this conclusion is amply supported by the record.
Decree
For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendant/Appellant, Linda Yancey.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules — Courts of Appeal. Rule 2-16.3.