Lakeisha A. Dugas v. Ross M. Dugas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 16-229

LAKEISHA A. DUGAS

VERSUS

ROSS M. DUGAS

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 80467
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and D. Kent Savoie, Judges.

AFFIRMED.

Keith E. Thibodeaux
Attorney at Law
422 South Main Street
St. Martinville, LA 70582
(337) 394-3034
COUNSEL FOR DEFENDANT/APPELLANT:
Ross M. Dugas

Kevin E. Broussard
Attorney at Law
209 West Main Street, Suite 300
New Iberia, LA 70560
(337) 365-3800
COUNSEL FOR PLAINTIFF/APPELLEE:
Lakeisha A. Dugas

SAVOIE, Judge.

In this custody dispute, Ross Dugas appeals the trial court’s judgment that

awarded the parties joint custody of the minor child but that did not grant Ross with

equal physical custody of child during the school year or give him a weekly overnight

visit with the child. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on November 13, 2010, and thereafter established a

domicile in St. Martin Parish. The parties’ daughter, Khori, was born of the marriage

on July 16, 2011. The parties physically separated on May 16, 2013, and Lakeisha

filed a petition for divorce on July 15, 2013. Ross filed an answer and reconventional

demand.

On August 27, 2013, a Hearing Officer assigned to the matter issued a report

recommending that the parties have joint custody of Khori, with Lakeisha as the

domiciliary parent, and with Ross having physical custody every other weekend and

every Wednesday from 6:00 p.m. through Thursday at 8:00 a.m. The report also

provided that the parties share holidays as equitably as possible, and provided an

alternating schedule for December 23 through December 25, as well as Thanksgiving

and Easter day of each year, which was to be followed in the absence of an agreement.

Both parties filed objections to the Hearing Officer’s recommendations.

A trial was held on December 12, 2014. The trial court awarded the parties

with joint custody and designated Lakeisha as the domiciliary parent. Ross was

awarded physical custody of the child every other weekend from Friday at 5:00 p.m.

to Monday morning during the school year, as well as one day per week from 5:30

p.m. until 7:00 p.m., provided that it did not conflict with any of the child’s

extracurricular activities. In addition, Ross was awarded physical custody of the child

for six (6) out of the nine (9) days of both the extended Thanksgiving and Christmas

breaks from school, as well as equal time during all other holidays and holiday

periods. Ross was also awarded equal physical custody of the child during alternating

weeks in the summer.

Ross appeals and states the following assignments of error:

1. The District Court erred when it failed to award onto the parties
herein shared physical custody of the parties’ minor child, Khori
Claire Dugas, on a 50/50 basis.

2. The District Court erred in failing to award onto Mr. Ross M. Dugas
weekly overnight visitation as well as weekly visitation with the
parties’ minor child, Khori Claire Dugas, all in accordance with the
recommendations of the Honorable Hearing Officer Maggie Simar
and the agreement of the parties.

STANDARD OF REVIEW

“[A] trial court’s determination in a child custody case is entitled to great

weight on appeal and will not be disturbed unless there is a clear abuse of discretion.”

Hawthorne v. Hawthorne, 96-89, p. 12 (La.App 3 Cir. 5/22/96), 676 So.2d 619, 625,

writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

In a child custody proceeding, the trial court must consider all factors relevant

to the child’s best interest. La.Civ.Code art. 134. Further,

[t]he court is not bound to make a mechanical evaluation of
all of the statutory factors listed in La. C.C. art. 134, but
should decide each case on its own facts in light of those
factors. The court is not bound to give more weight to one
factor over another, and when determining the best interest
of the child, the factors must be weighed and balanced in
view of the evidence presented. Moreover, the factors are
not exclusive, but are provided as a guide to the court, and
the relative weight given to each factor is left to the
discretion of the trial court.

Thibodeaux v. O’Quain, 09-1266, p. 5 (La.App. 3 Cir. 3/24/10), 33 So.3d 1008, 1013

(quoting Cooper v. Cooper, 43,244 (La.App. 2 Cir. 3/12/08), 978 So.2d 1156).

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Ross asserts that the trial court erred in not

awarding the parties with equal physical custody of the child. He notes that when

joint custody is awarded, La.R.S. 9:335(2)(b) states that, “[t]o the extent it is feasible

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and in the best interest of the child, physical custody of the children should be shared

equally.”

In its written reasons for ruling, the trial court stated the following:

The Court heard testimony from several witnesses at the trial of
this matter. . . . It should also be noted that this Court finds that both
parties love their daughter very much. The evidence shows that Mr.
Dugas now works an 8 – 5 Monday through Friday job. It further shows
that Mr. Dugas’ parents have purchased a house . . . near Broussard in St.
Martin Parish [,] which [Mr. Dugas] occupies and rents from his mother
and father. The house is a three or four bedroom house in a nice area on
a dead end road very suitable to raising his daughter. He now occupies
this home with his fiancé who is pregnant with a child that is due this
year. Mr. Dugas testified that he and his fiancé plan to marry after the
child is born. Mr. Dugas’ parents are active in Khori’s life and visit as
often as possible. The grandparents live within 30 minutes of Mr.
Dugas’ home and have developed a good relationship with their
granddaughter. Mr. Dugas testified that he took the job with
Cardiovascular Institute of the South due to better working hours in order
to spend more time with his daughter. There was some testimony that
shift work was causing problems with the visitation he and Lakeisha had
worked out, aside from the Hearing Officer’s recommendations.

Lakeisha Dugas lives in a home within walking distance of her
parents’ home and her parents’ machine shop. She too is presently living
with a man in her house with her daughter. As stated previously, she is
currently working in her business and part time at the machine shop. Her
boyfriend currently works for her father in his machine shop in a
supervisory position. Khori has her own bedroom[,] and the home is
certainly adequate to provide her the proper shelter and care. Lakeisha
and Khori are very close to Lakeisha’s parents and their extended family.
As stated previously, Lakeisha and Khori presently reside in close
proximity to Lakeisha’s parents, the Bouttes, and most of the activities
Khori does with Lakeisha are done in an extended family setting along
with the Bouttes and other family members.

....

The Court has considered all of these factors of Louisiana Civil
Code Article 134 and finds the following to be applicable to this case.
The parties in this particular case shall have joint custody of the minor
child, Khori. However, there is a legion of cases in Louisiana that states
that joint custody of the minor child does not necessarily mean equal
time or “50-50” sharing of the child. Certainly, school age children
should have a stable environment and routine during the school year;
Khori will begin attending school in August of 2015. This Court finds
that stability and routine can best be accomplished by one parent having
custody during the school year and another parent having visitation
during that period. This Court finds that Khori has spent most of her life
with her mother, Lakeisha, and to uproot the child now may be traumatic.

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Ross argues that the trial court’s findings that stability and routine could best be

accomplished by having only one parent have custody during the school year, and that

uprooting Khori would be traumatic since Khori had spent most of her life with her

mother, were manifestly erroneous, and therefore equal physical custody should have

been awarded. He argues that shared physical custody is feasible and is in the best

interest of the child.

This Court discussed La.R.S. 9:335(2)(b) in Brown v. Brown, 96-743, pp. 3-7

(La.App. 3 Cir. 2/26/97), 692 So.2d 458, 459-461.

[J]oint custody does not mandate fifty-fifty sharing of physical custody;
all that is required is substantial equality of time depending on the age of
the children, parental situations, and other factors relevant to child
custody disputes. Page v. Page, 96-69 (La.App. 3 Cir. 5/8/96)[,] 673
So.2d 1317.

....

[T]he legislature amended La.R.S. 9:335(A)(2)(b) in 1995 and it
now reads as follows: “To the extent feasible and in the best interest of
the child, physical custody of the children should be shared equally.”
(emphasis added). This amendment, by adding the phrase “and in the
best interest of the child” and substituting “should” for “shall,”
strengthens the best interest of the child standard as the primary concern
in custody determinations.

....

We decline to adopt the assertion that the law mandates an equal
sharing of physical custody. La.R.S. 9:335(A)(2)(b) does not put the two
[the best interest of the child, and a parent’s right to equally share the
physical custody of the child where feasible] on equal footing. That
portion of the statute reads, “[t]o the extent it is ... in the best interest of
the child, physical custody of the children should be shared equally.”
La.R.S. 9:335(A)(2)(b). Clearly, a prerequisite for the equal sharing of
physical custody is that it be in the best interest of the children.

In the instant matter, the trial court found that equal physical custody of the

child during the school year was not in the child’s best interest. The evidence in the

record reasonably supports this finding, including evidence that Lakeisha had

primarily been the parent involved in making decisions regarding the child’s

education, health care, and extracurricular activities. Therefore, even though equal

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physical custody may have been feasible, as Ross suggests in his brief, this fact does

not render the trial court’s ruling erroneous. We find no abuse of discretion in the

trial court’s ruling.

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, Ross takes issue with the trial court’s failure

to provide him with physical custody of the child one night during the school week.

He argues that the Hearing Officer had recommended he have one weekly overnight

visit with the child, and that he had been spending one weekly overnight visit with the

child from the date of the hearing officer conference, August 27, 2013, through the

trial on December 12, 2014. He also argues that the parties had agreed to a custody

arrangement that included him having the child overnight once during the week,

during an informal conference that took place on September 26, 2013. Therefore,

according to Ross, the trial court was erroneous in failing to “continue the parties’

agreement[.]”

Lakeisha notes in her brief that, during trial, the trial court stated that there was

no written agreement between the parties resolving the custody issues, and that “the

parties can change their mind until there is a written document or there is a stipulation

in the record.” She also points to Ross’s testimony indicating that no agreement had

been reached, but rather only a temporary arrangement pending trial.

There is no evidence in the record reflecting any agreement between the parties,

and therefore the trial court was not bound by any such agreement. In fact, while the

trial court did not award Ross with weekly overnight time with the child during the

school year, the trial court did award Ross with more than half of the time during the

extended Thanksgiving and Christmas breaks from school, as well as equal time

during the summer months. Given that the child was about to begin school, and the

testimony that Lakeisha was more involved with the child’s education and

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extracurricular activities than Ross, the custody arrangement awarded by the trial

court is supported by the record.

CONCLUSION

For the reasons above, the ruling of the trial court is affirmed. All costs of this

appeal are assessed to Appellant, Ross Dugas.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3,
UNIFORM RULES—COURTS OF APPEAL.

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