Guillory v. Guillory
| Decision Date | 24 June 1992 |
| Docket Number | No. 91-319,91-319 |
| Citation | 602 So.2d 769 |
| Parties | Elizabeth Ann Hoover GUILLORY, Plaintiff-Appellant, v. Tonas "Bill" GUILLORY, Defendant-Appellee. 602 So.2d 769 |
| Court | Court of Appeal of Louisiana — District of US |
Morrow, Morrow, Ryan & Bassett, Jeffrey Bassett, Opelousas, for Elizabeth Guillory plaintiff-appellant.
Willis & DeJean, Pat Willis, Opelousas, for T. Guillory defendant-appellee.
Before GUIDRY and YELVERTON, JJ., and COREIL *, J. Pro Tem.
Elizabeth Hoover and Bill Guillory were married on November 7, 1986, and had one child, Dylan Guillory. The couple was divorced on May 8, 1990. The judgment of divorce granted joint custody of Dylan to both parents on a three month rotating basis and ordered Bill to pay child support in the amount of $50 per month. The order for child support and custody was not a 'considered decree' but rather Elizabeth and Bill agreed to the arrangement. Although Elizabeth was not represented by counsel nor employed at the time of the divorce the trial judge chose not to review the child support agreement but simply signed the judgment.
On September 28, 1990, Elizabeth filed a Rule for Change of Custody and Child Support. After a hearing the trial court denied Elizabeth's request for change of custody and child support. The trial court did modify the custody arrangement from a three-month rotational basis to a one-month rotational basis.
Elizabeth now appeals asserting that the trial court erred in denying sole custody of Dylan to Elizabeth, or in the alternative not ordering that Elizabeth be named as the primary custodial parent. Elizabeth also asserts that the trial court erred in maintaining the child support award at $50 per month. We affirm the child custody order but reverse and remand the child support order.
There is no error in the trial court's denial of Elizabeth's motion for sole custody or primary custodial status. A party seeking a change in the considered decree of permanent custody bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). However, when the custody plan was agreed to and uncontested by the parties, the heavy burden of proof traditionally required of a party seeking modification does not apply, and the test to be applied is the best interest of the child. Sandifer v. Sandifer, 514 So.2d 510 (La.App. 3rd Cir.1987). There is a rebuttable presumption that joint custody is in the best interest of the child. La.C.C. art. 131(C). In child custody cases, the decision of the trial court is to be given great weight and overturned only where there is a clear abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988).
Elizabeth sought to prove at the trial certain grounds which she believed would establish why custody should be changed. She tried to prove that:
1. Bill had a drinking problem.
2. Bill kept Dylan in a play area built in the front of the store, which was detrimental to the child.
3. Prior to the divorce Bill sent three letters to Elizabeth that Elizabeth contended demonstrated that Bill should not be allowed to have joint custody of Dylan.
4. Bill was 60 years old and she was 26, and she had that maternal instinct.
5. The shuffling of Dylan from one parent to the other was not in the best interest of the child.
The trial judge concluded that the presumption in favor of joint custody had not been rebutted. We have examined the record, and we find no abuse of discretion in this conclusion. The evidence does not support a finding that any of the above listed grounds were proved sufficiently to establish that the current custody order is detrimental to the child. This assignment of error lacks merit.
Elizabeth's other contention on appeal is that the trial court erred in failing to increase the child support Bill was ordered to pay. The trial court left child support at $50 a month. There are statutory guidelines for the determination of child support. La.R.S. 9:315 et seq. They are to be used in any proceeding to establish or modify child support filed on or after October 1, 1989. The initial award of child support in this case was based upon the stipulated amount of $50 when Bill and Elizabeth were divorced on May 8, 1990. The trial court did not modify the child support award, apparently concluding that there was no showing that a change in circumstances had taken place.
Before a child support award may be modified there must first be a showing that a change in circumstances has taken place. La.R.S. 9:311 A. Bill argues on this appeal that Elizabeth failed to show a change in circumstances, and that therefore the trial court was correct in denying the motion for...
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