Gilchrist v. Gilchrist

• Decision Date: 21 July 1986
• Docket Number: No. 85-87,85-87
• Citation: 492 So.2d 228
• Parties: Melba L. GILCHRIST, Plaintiff-Appellee, v. Dewitt GILCHRIST, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 228

492 So.2d 228

Melba L. GILCHRIST, Plaintiff-Appellee, v. Dewitt GILCHRIST, Defendant-Appellant.

No. 85-87.

Court of Appeal of Louisiana Third Circuit.

July 21, 1986.

Eugene P. Cicardo, Jr., Alexandria, for defendant-appellant.

Gus Voltz, III, Alexandria, for plaintiff-appellee.

Before GUIDRY, FORET and LABORDE, JJ.

PER CURIAM.

We have consolidated and have before us two appeals taken by the husband in the Gilchrist separation and divorce proceedings. Both will be covered in this opinion, but separate decrees will be rendered. ¹

The first appeal (our Docket No. 85-87) is from a judgment dated October 24, 1984, on two rules in the separation suit, which granted temporary custody of two minor children to the wife, subject to specific visitation rights of the husband, with alimony pendente lite and child support in the total amount of $800.00 per month beginning September 1, 1984.

The second appeal (our Docket No. 85-1212) is from the judgment of divorce dated October 1, 1985, awarding permanent custody of the children to Mrs. Gilchrist, subject to the husband's visitation privileges, but eliminating the requirement that the privileges be exercised at the family residence under Mrs. Gilchrist's supervision, and fixing the monthly alimony at $200.00 and the monthly child support at $300.00 for each child.

The errors assigned by appellant on both appeals are: (1) finding that joint custody was not in the best interest of the children, particularly without ordering the parties to submit a plan for implementation of such custody; (2) limiting his visitation with the children to every other weekend; and (3) awarding excessive alimony and child support.

Although LSA-C.C. Articles 146 and 157 provide a preference and presumption in favor of joint custody in these matters, it is clear from the wording of Article 146 that the ultimate test is: what is in the best interest of the children? Of course, having seen and heard the testimony of the parties and witnesses, the trial judge's determination of custody must be accorded great deference. ² Bagents v. Bagents, 419 So.2d 460 (La.1982); Murphy v. Murphy, 427 So.2d 1278 (La.App. 2d Cir.1983). This rule of appellate review also applies to his determination of alimony and child support. Lamb v. Lamb, 427 So.2d 899 (La.App. 3d Cir.1983).

Having carefully reviewed the record of the two proceedings, we conclude that the presumption favoring joint custody has been rebutted and that the trial judges ³ did not abuse their discretion in awarding custody of the children, subject to visitation rights of the father, to the mother. Nor do we see any useful purpose that would be served by requiring a joint custody implementation plan after the judge has found that such custody is not in the best interest of the children.

The income and expense affidavit of Mr. Gilchrist that was filed in the first proceeding reflects that as of August 16, 1984, his net monthly income was $1,771.73 and his expenses were $2,316.16 per month. The affidavit filed by him in the second proceeding shows an approximate net monthly income of $2,400.00 and expenses (excluding the $800.00 alimony and support award) of $1,922.00 as of August 19, 1985. Mrs. Gilchrist's affidavits reflect a net monthly income of $800.00 and expenses of herself and children of $2,003.00 as of August 20, 1984; on August 19, 1985, these figures were $852.34 and $2,145.40, respectively.

We note some discrepancies between these affidavits and the testimony of the parties and are convinced that both Mr. and Mrs. Gilchrist have exaggerated their actual expenses to some extent.

All things considered, we are convinced that the trial court's award of $200.00 per month for alimony pendente lite and $300.00 per child per month for child support is amply supported by the record. Consequently, we find no abuse of discretion by the trial court in this respect. However, in view of Mrs. Gilchrist's demonstrated earnings, we deem it appropriate to reduce her award of permanent alimony to $100.00 per month.

Civil Code article 146(A)(2) directs, in part, that a court awarding custody to either parent shall consider which parent is more likely to allow the children frequent and continuing contact with the noncustodial parent. We agree with appellant that he should be allowed to see his children more than merely every other weekend as the lower court's order (in the companion case, our docket # 85-1212) directs. We are mindful of the discretion vested in the lower court for visitation questions, but we conclude that allowing the father to visit his children during two full weeks in summer, on alternating holidays during the year, and on Father's Day would afford him and the children a better chance to maintain a genuine parent-child relationship. This result is clearly contemplated by the Civil Code and by our case law. The judgment in the companion case will be amended to reflect our decision in this regard.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant's cost.

AFFIRMED.

APPENDIX I

NINTH JUDICIAL DISTRICT COURT

PARISH OF RAPIDES

STATE OF LOUISIANA

REASONS FOR JUDGMENT

In this case for custody, child support, and alimony pendente lite, plaintiff Melba Gilchrist seeks custody of her two minor children and an award of $800.00 per month for alimony and child support.

Defendant Paul Gilchrist is seeking an award of joint custody and an award of $300.00 per month for the care of the two minor children.

In an excellent post hearing brief which this Court adopts in part as its Reasons for Judgment, plaintiff's attorney summarizes the testimony and evidence as it applies to Article 146 of the Louisiana Civil Code.

In spite of recent changes in the custody laws of this state, the predominate [sic] consideration in granting custody to one parent or the other is still "the best interest of the child." Lambert v. Lambert, 452 So.2d 244, 246 (1st Cir.1984).

Louisiana Civil Code Article 146 Section C(2) states that "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 ...."

Louisiana Civil Code Article 146 Section C(2) lists eleven (11) specific factors which may be used to determine what is in the best interest of the child and it also lists one (1) general provision, that being "any other factor considered by the Court to be relevant to a particular child custody dispute."

Article 146 Section C(2)(c) states that one (1) consideration is "the capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other material needs." In connection with this consideration plaintiff illustrates that she is living in what was the family home. It is comfortable, clean, spacious and livable. It provides an excellent environment for the rearing of the four (4) year old and the twelve (12) year old child. No other people live in the family home other than the mother and the two (2) children. On the other hand, the father lives in a house trailer which has been described as being smaller, less comfortable, more crowded and untidy and certainly less livable than the family home. The trailer house certainly does not provide the necessary comforts and living conditions compared to the family home that would be conducive to the proper upbringing [sic] of a four (4) year old child. Furthermore, the trailer home does not provide the necessary living accommodations, spaciousness, privacy, and entertainment facilities necessary for a happy livelihood of a twelve (12) year old child.

The defendant, DeWitt Gilchrist, is sharing the trailer house with John Murphy and Mark Stokes. DeWitt Gilchrist, by his own admission on the stand admits that living under these crowded conditions and with these other two (2) men is not a stable condition conducive to a happy family livelihood and for the proper raising of children but stated that he intends to find better living conditions in the future.

Another factor to be considered by Article 146 is the moral fitness of the parties involved. It was well established by the witnesses for the plaintiff that the main problem with the marriage is that the defendant,...