Chaudoir v. Chaudoir
| Citation | 454 So.2d 895 |
| Decision Date | 10 August 1984 |
| Docket Number | No. 83-795,83-795 |
| Parties | Nora Jean Hamilton CHAUDOIR, Plaintiff-Appellant, v. Richard E. CHAUDOIR, Defendant-Appellee. 454 So.2d 895 |
| Court | Court of Appeal of Louisiana (US) |
Trimble, Percy, Smith, Wilson, Foote & Walker, Elizabeth E. Foote, Alexandria, for plaintiff-appellant.
Downs & Downs, James Downs, Alexandria, for defendant-appellee.
Before DOMENGEAUX, FORET and DOUCET, JJ.
Richard E. Chaudoir filed a rule seeking to obtain joint custody of his twelve-year-old daughter, Elizabeth Jean Chaudoir. A prior judgment had awarded sole custody to the mother, Nora Jean Hamilton Chaudoir. The mother also filed a rule to increase child support from $350.00 per month to $550.00 per month. Both rules were heard on March 7, 1983. The trial court granted the father's request for joint custody and adopted a plan for implementation of its custody order. The court denied the mother's request for an increase in child support.
The mother has appealed the decision of the trial court and raises several issues:
(1) Whether the trial court erred in altering the previous award of sole custody to the mother so as to award joint custody to both parents.
(2) Whether the trial court erred in interpreting the joint custody law to mean shared residences as well as shared responsibilities.
(3) Whether the trial court erred in excluding from evidence the deposition of a child psychiatrist.
(4) Whether the trial court erred in reducing the amount of child support during those times during which the father would have physical custody of the child under its implementation plan.
(5) Whether the trial court erred in denying the mother's request for an increase in child support.
The father, Richard E. Chaudoir, and the mother, Nora Jean Hamilton Chaudoir, were divorced in 1974, in Alexandria, Louisiana, their last matrimonial domicile. The mother received sole custody of their daughter, Elizabeth Jean Chaudoir. On November 30, 1981, the judgment was modified to specify the father's visitation privileges. The 1981 judgment provided for visitation privileges as follows:
"Every other weekend during the summer vacation from 5:00 o'clock p.m. Friday until 7:00 o'clock p.m. the Tuesday following;
During the months of school year from 5:00 o'clock p.m. Friday until 7:00 o'clock p.m. the Sunday following.
During the summer vacation months a period of four weeks.
From 5:00 o'clock p.m. on the day before until 5:00 o'clock p.m. on the following day of every other Thanksgiving, Christmas and Easter, beginning with Thanksgiving, 1981, Christmas, 1982 and Easter of 1982, providing that on the holidays during the year when Mr. Chaudoir does not have the foregoing visitation rights he will be permitted to have the child from 5:00 o'clock p.m. on the holiday until 5:00 o'clock p.m. on the following day."
Except for a short period of time when they lived in Shreveport, mother and child have resided in or near Baton Rouge since 1974. The mother has not remarried. She teaches school at Sacred Heart School in Baton Rouge, the same school in which the child was enrolled in the sixth grade at the time of the hearing.
The father has continued to reside in Alexandria, Louisiana, where he has a law practice. He has remarried and has a four-year-old child from his second marriage. During all of the time that the mother has had sole custody of Elizabeth, the father has exercised his visitation privileges and has maintained a close and loving relationship with his daughter.
Apparently the major source of friction between the father and the mother since their divorce has been the father's exercise of his visitation privileges. There have been disagreements over the interpretation of the father's visitation privileges, the father claiming that he is entitled to more visitation time, the mother, that he is entitled to less. The mother has also complained that the child's visitation with her father has interfered with activities such as dance and tennis, particularly in the summer when, under the 1981 judgment, the father was afforded four-day visitation every other weekend.
LSA-C.C. Art. 157 governs change in custody after a divorce and provides that permanent custody shall be granted in accordance with LSA-C.C. Art. 146. Since the time of the hearing of this matter, Art. 146 has been amended. At the time of the hearing, Section C read:
Subsequently, Section C was amended. The 1983 amendment changed Section C to:
"C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.
(1) However, the parents may agree to an award of custody to one parent.
(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
(3) For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted."
We will apply Article 146 as amended. The general rule that a statute can only have prospective application applies only to substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive application in the absence of language showing contrary intent. Fullilove v. U.S. Casualty of New York, 129 So.2d 816 (La.App.1961), cert. denied June 22, 1961 (no citation found). Since we consider Art. 146 to be quasi-procedural and also consider the 1983 amendment to be remedial, we feel that Art. 146 as amended in 1983 should apply retrospectively to the instant case.
As can be seen, one of the major changes in Art. 146 as a result of the most recent amendment is that it no longer provides that the presumption that joint custody is in the best interest of the child does not apply if the court, in fact, finds that joint custody would not be in the best interest of the child. As a result, the presumption that joint custody is in the best interest of the child always exists--it is no longer within the court's discretion to decide that the presumption is not applicable. The presumption, however, remains a rebuttable one and the other major change worked by the most recent amendment is the addition of a list of factors which must be considered in determining if the presumption has been rebutted.
We have closely examined the evidence in the record before us in light of these factors and find that the decision of the trial court should stand.
We take the liberty of quoting from the trial judge's written reasons for judgment:
Additionally, we note that the child testified that the relationship between her and her father was a good one.
While it is true that the mother has had sole custody of the child for nine and one-half years and that it is desirable to maintain continuity, the implementation plan for joint custody adopted by the court results in the child spending no more than an additional month each year with the father. Additionally, the joint custody plan, by eliminating the four-day weekend visitations that the father was accorded under the old plan, will result in less disruption of the child's activities.
Having considered the evidence in light of the factors set forth in Art. 146, we conclude that the mother has not rebutted the presumption that joint custody is in the best interest of the child. Accordingly, we will affirm the...
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