Moreau v. Moreau
| Decision Date | 18 November 2015 |
| Docket Number | No. 2015–CA–0564.,2015–CA–0564. |
| Citation | 179 So.3d 819 |
| Parties | Lyle MOREAU v. Patricia Hotard MOREAU. |
| Court | Court of Appeal of Louisiana — District of US |
179 So.3d 819
Lyle MOREAU
v.
Patricia Hotard MOREAU.
No. 2015–CA–0564.
Court of Appeal of Louisiana, Fourth Circuit.
Nov. 18, 2015.
Andrew A. Lemmon, Scott J. Falgoust, Lemmon Law Firm, LLC, Hahnville, LA, for Plaintiff/Appellant.
Nicole M. Smith, New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge PAUL A. BONIN, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).
ROSEMARY LEDET, Judge.
This is a contentious child custody case. From a judgment awarding joint shared custody of the minor children and designating the mother, Patricia Hotard Moreau, as domiciliary parent, the father, Lyle Moreau, appeals.1 For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 1993, the parties were married. Thereafter, the parties established their matrimonial domicile in Orleans Parish. Four children were born of the marriage—Sarah Moreau (born on November 9, 1995); Foster Moreau (born on May 6, 1997); Patricia "Claire" Moreau (born on September 28, 1999); and Lillian "Lilly" Moreau (born on December 24, 2002).2
On June 4, 2012, Mr. Moreau filed Petition for Divorce pursuant to La. C.C. art. 103. In his petition, he requested that the
parties be awarded joint shared custody and that either both parents or neither parent be designated as the domiciliary parent. He also requested that the trial court set a specific custody schedule. On October 5, 2012, Ms. Moreau filed an answer and reconventional demand seeking joint custody and requesting she be named domiciliary parent.
On October 23, 2012, and October 31, 2012, the parties entered into written stipulations, which included temporary physical custody schedules.3
On December 19, 2012, Mr. Moreau filed a rule for contempt or alternatively, for the appointment of a custody evaluator. On April 24, 2013, the trial court appointed Dr. Karen van Beyer pursuant to La. R.S. 9:331.4 On May 23, 2013, the trial court rendered a judgment of divorce. On that same date, the parties entered into a consent judgment that gave Mr. Moreau custody of all of the children overnight every Wednesday and every other weekend from Friday after scheduled activities until Monday morning, which was to remain in effect until school began.
In her October 6, 2013 report, Dr. van Beyer recommended the following:
• Lyle and [Patricia] should continue to share joint custody of their children.... They should consult with each other about all major decisions in their children's lives.
• That [Patricia] be named domiciliary custodian of the children with the firm directive that she confer with Lyle in making any major decision for the children.... The children would benefit from shared custody but at this point in time, it is not likely that their parents could agree to this.
• The children should live in each home 50% of the time on a week by week basis. Sarah and Foster should continue to have the flexibility that allows each to decide which home they will spend the evening and night in during the school week, but they should know that they "officially" live in the two homes... Thus on their father's week they can spend school nights with their mother and on their mother's week, they can spend school nights with their father. All four children should be required to spend alternating weekends in each parent's home.
• Lilly should spend alternating weeks in each parent's home.
On September 18, 2013, the trial court entered an interim custody judgment, which granted Mr. Moreau custody of the children every Wednesday, beginning after school ends and ending at 8:00 p.m. that evening, and every other weekend from Friday after school ends until Monday morning.
On November 21, 2013, the first day the custody trial was held, Dr. van Beyer and Mr. Moreau testified. On December 13, 2013, the parties entered into an interim consent judgment, which stated the following:
• [T]he parties will continue to have joint custody of the minor children, specifically reserving for future determination the designation of the domiciliary parent.
• Patricia Hotard Moreau shall maintain physical sole custody of the minor children at all times not specifically designated to Lyle Moreau herein.
• [B]eginning December 19, 2013, Lyle Moreau shall have physical custody of the minor children every other weekend from Thursday, at 5:30 p.m., until Sunday at 6:00 p.m.
• Lyle Moreau shall have physical custody of the minor children every Wednesday, from their release from school until 8:00 p.m.
• [B]eginning Wednesday, December 25, 2013, and every other Wednesday thereafter, Lyle Moreau shall have physical custody of their minor children overnight, until they are returned to school on Thursday.
• [T]he custodial schedule contained herein shall be open and liberal with regards to the parties' minor children, [Foster] and [Claire].
On August 12, 2014, Dr. van Beyer and the parties testified.5 On that same date, the trial concluded and the trial court judge held a meeting in chambers with the parties and their counsel. Immediately thereafter, the trial court rendered its ruling.
On December 15, 2014, the trial court issued judgment, stating that "the parties shall continue to share joint custody of the minor children with Patricia Moreau as the designated domiciliary parent." The judgment further provided as follows:
• Lyle Moreau shall have physical custody of the minor children on alternative weekends from Thursday, at 6:00 p.m., when the children are picked up from Patricia Moreau's home, until Sunday at 6:00 p.m., when they are picked up from Lyle Moreau's home; and on every Wednesday before his non-custodial weekend by picking them up from school that afternoon until he returns them to school on the following morning.
• Any aspect of the custody agreement can be changed by mutual agreement of the parties. Both parties shall be flexible and particularly taking into consideration of the children's wishes.
• The children shall not be forced to attend this visitation; however, they should all be encouraged to spend this time with their father.6
• The parties shall share holidays, alternating even and odd years.7 If any
period of holiday custody shall conflict with the parties' regular custody schedule, the holiday schedule shall supersede.
• If any parent is going to be away from the child during his or her periods of physical custody for more than six (6) consecutive hours, the other parent has the first right of refusal.
• The parties each shall be entitled to one uninterrupted week of summer vacation to coincide with their regularly scheduled weekend.
• At any time, the parties may amend the custodial schedule contained herein by mutual written agreement.
This appeal followed.
STANDARD OF REVIEW
In child custody cases, the following principles are well-settled:
• Appellate courts will not disturb a trial court's custody award absent a manifest abuse of discretion.
• "[E]ach child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount goal of reaching a decision that is in the best interest of the child."
• In determining the best interest of the child, "[e]ach case must be viewed in light of the child's age, the situation of the parents, and any other factor relevant to the particular case."
• To aid courts in making this factual determination, La. C.C. art. 134 enumerates twelve factors for the court to consider. These factors have been construed to be nonexclusive, and the trial court has the discretion to determine the relative amount of weight to be given each factor. The court is not required to analyze mechanically all of the dozen factors; rather the court should balance and weigh the factors in view of the evidence presented.
• The best interest of the child standard—codified in La. C.C. arts. 131 and 134 —is "a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case."
• "Because the trial judge is in the best position to ascertain the best interest of the child based on the particular circumstances of the particular case, the trial court's custody determination is entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion."
Alfonso v. Cooper, 14–0145, p. 22 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 810 (citing Hanks v. Hanks, 13–1442, pp. 8–9 (La.App. 4 Cir. 4/16/14), 140 So.3d 208, 214–15 ).
DISCUSSION
On appeal, Mr. Moreau raises two issues. First, he contends that the custody schedule contravenes the custody evaluator's recommendations and that the schedule is not consistent with the application of the factors for determining the best interest of the child enumerated in La. C.C. art. 134.8 Second, he contends that
the trial court erred by instituting a custody schedule that violates the "shared...
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