Plemer v. Plemer
| Decision Date | 18 August 1983 |
| Docket Number | No. CA-1001,CA-1001 |
| Citation | 436 So.2d 1348 |
| Parties | Roslyn Gambino PLEMER v. Michael PLEMER. |
| Court | Court of Appeal of Louisiana — District of US |
Floyd J. Reed, J.D., Reed & Reed, New Orleans, for plaintiff-appellant.
Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for defendant-appellee.
Before BARRY, LOBRANO and WARD, JJ.
The plaintiff-mother appeals a change from sole custody of her 10-year old daughter to joint custody and asserts the court's plan is unworkable and the reduction in child support is unreasonable.
Roslyn Gambino (now Mrs. Marshall Hughes) and Michael Plemer were married on February 19, 1966 and had one child, Michele, born on April 12, 1973. The parents separated in 1976 and the mother obtained a legal separation in 1977 and a divorce one year later. She was awarded sole custody of Michele and the father had Michele generally at least one day a weekend, plus one full weekend a month, and several extended vacations or holidays a year.
In February, 1981 the former Mrs. Plemer was married to Marshall Hughes, with whom she and Michele now live. In September of 1981 Mr. Plemer married Kathleen Pierson, an attorney, who has two daughters, Shannon, age 16 and Elise, age 10, from her first marriage. Mr. Plemer and his wife reside in her house with the children.
The crux of the problem between Mr. Plemer and Mrs. Hughes surfaced after the father's marriage. Michele was accustomed to her father's exclusive company during visitation, but was unhappy at having to "share" her father with his new wife and step-daughters. According to Mrs. Hughes, Michele complained that when she visited her father at his new home, she spent little time with him and was relegated to her step-mother's children and their friends. There was some rivalry between Michele and Shannon, the 16-year old step-sister who, according to Michele, sometimes bullied her, and was allowed to smoke, swear, etc. Mrs. Hughes testified that, in early 1983, Michele refused to go to her father's house unless she would be guaranteed substantial, person-to-person interaction with her father undiluted by his new family.
Mr. Plemer testified that he wants Michele to become acclimated to his new marital status and develop a relationship with his wife and her children. During visitation he intentionally arranged weekends for everyone to be together and share their activities.
Michele experienced difficulty in adjusting to "sharing" her father. Mrs. Hughes contacted Mr. Plemer, told him of Michele's complaints, and, since he would not agree to spend each visit alone with Michele, she allowed Michele to forego the weekly visitations. Mr. Plemer then filed the subject rule for joint custody. Mrs. Hughes opposed any custody change and asked for an increase in child support, and Mr. Plemer responded with a predictable request to decrease the support.
Under our new joint custody legislation each party is to submit a plan to the trial judge. In his proposed plan Mr. Plemer agreed that Mrs. Hughes should retain physical custody of Michele during the school year, but he sought physical custody during three weekends a month, half of the summer vacation, and on alternate holidays. Mrs. Hughes refused to file a plan and opposed any change on the grounds that shared custody would be confusing to Michele and disruptive to everyone's lives. At trial, she suggested that Mr. Plemer's visits be curtailed, i.e., Michele be restricted to daytime visits twice a month and occasional extra dinners or short outings.
After a full hearing, which included testimony from Michele in chambers without the parents, the trial judge rendered a comprehensive and totally structured plan. Judge Duran continued Michele's basic lifestyle by granting physical custody to Mrs. Hughes for approximately nine months during the school year with Mr. Plemer to have all weekends save one per month. During vacation Mr. Plemer assumes physical custody with Mrs. Hughes sharing all weekends but one per month. The parent with physical custody is liable for the child's conduct. Holidays and special occasions are spelled out and alternated. Detailed reasons for judgment emphatically specify the need for Michele to avoid her mother's dominance and for the child to "mingle ... with other people ...."
By enacting Act 307 of 1982 the legislature initiated a radical change in our laws on child custody. LSA-C.C. Art. 146, which is made applicable to changes in permanent custody under Art. 157, now creates a rebuttable presumption in favor of joint custody. The opposing parent has the burden to show that joint custody is not feasible. However, the legislation provides very little guidance as to the meaning of "joint custody" and how it should be implemented. 1
We interpret "joint custody" to mean a physical sharing of the child in addition to both parents participating in decisions affecting the child's life--e.g., education, medical problems, recreation, etc. It's obvious no plan, with or without ironclad guidelines, could possibly resolve the infinite number of conflicts which can and will arise between divorced parents in their quest to share their child's life. It's a fact of life that when parents battle over their children, judges are cast as ad hoc parents. But the legal bottom line remains the same--our only concern is the best interests of the child.
We note the lower court's custody award slightly exceeds the amount of time requested in Mr. Plemer's plan; however, the Reasons are crystal clear that Michele would be better served by spending additional time with her father. The weekly schedule (over one year) places Michele with her mother approximately two-thirds...
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