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KAWOSKI JOHNSON v. KIZZY BUTLER
Plaintiff appeals a judgment of the trial court granting Defendant sole custody of the parties' minor child and reasonable visitation for Plaintiff. For the following reasons, we affirm the trial court.
FACTS AND PROCEDURAL HISTORY
Kawoski Johnson (Johnson) and Kizzy Butler (Butler) are the biological parents of one minor child, K.B., born July 4, 2006. In March 2010, Johnson filed for joint or shared custody of K.B. The parties attended a hearing officer conference on April 12, 2010, in which a joint-custody arrangement was recommended. Johnson objected to the hearing officer's recommendations and the matter was set for a hearing.
On June 22, 2010, after considering the testimony of the parties and their witnesses, and after reviewing the documents introduced, the trial court took this matter under advisement and ultimately awarded domiciliary status and sole custody of K.B. to Butler, with visitation for Johnson.
Johnson appeals. His sole assignment of error is that the trial court erred in failing to find that he met his burden of proving that joint custody or shared custody would be in the best interest of K.B.
DISCUSSION
“The standard of review on appeal of a trial court's custody decision is a clear showing of abuse of the trial court's discretion.” Duhon v. Duhon, 01–730 p. 1 (La.App. 3 Cir. 12/2/01), 801 So.2d 1263, 1264 (citing Williams v. Bernstine, 626 So.2d 497 (La.App. 3 Cir.1993). A trial court's custody determination must be given great weight because “the trial court is in a better position to evaluate the best interest of the child from observances of the parties and witnesses.” Aucoin v. Aucoin, 02–756 p. 4 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245, 1248 (quoting 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).
Louisiana Civil Code Article 131 vests the trial court with the authority to award custody in accordance with the best interest of the child. Louisiana Civil Code Article 132 mandates that the trial court, in the absence of an agreement of the parties, award custody jointly. Nevertheless, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the custody shall be awarded to that parent. When making a custody determination, a trial court “should consider the totality of the facts and circumstanes in its analysis of the best interest of the child.” Aucoin, 834 So.2d at 1249. To assist the trial court in determining the best interest of the child, La.Civ.Code art. 134 sets forth twelve factors it should consider. The Article 134 “list is not exclusive and the trial court is to be given great discretion as to the weight of the relevant factors used.” Aucoin, 834 So.2d at 1249 (citing La.Civ.Code art. 134, comment (b)).
At the June 22, 2010 hearing, the trial court heard conflicting testimony from multiple witnesses, including Butler and Johnson. Butler testified that Johnson saw K.B. about twice a year, at Christmas and on K.B.'s birthday, and that he never gave K.B. presents on those occasions or provided for his child, except for a coat given shortly before the hearing. She testified that Johnson never expressed any interested in having K.B. visit him or in taking K.B. places until March 2010.
Johnson testified that he visited K.B. regularly at Butler's home, always provided presents for K.B., and that he had provided K.B. with clothing throughout K.B.'s life, though he was unable to remember exactly what kind of clothing he had provided. Johnson also testified that he tried to see K.B. more often, even for weekends, but Butler prevented him from doing so. Johnson testified that he wants to be a father to this child and wants to give him a proper upbringing in a religious home environment so that the child can and will live an appropriate life.
After taking the matter under advisement, the trial court issued written reasons for judgment on June 30, 2010, and signed a judgment memorializing those reasons on September 30, 2010. The trial court found that the testimony of Johnson and his wife was hollow and unbelievable. It noted that Johnson did not file his request for custody until after child support was fixed in March 2010, finding that “[i]t is obvious to this Court that it was the imposition of the $765.00 in child support on March 12, 2010 which really motivated his filing of the custody proceedings shortly thereafter on March 16, 2010.”
In determining which custody arrangement would be in K.B.'s best interest, the trial court applied the factors enumerated in La.Civ.Code art. 134. In that application, the trial court found that K.B. had lived his entire life with Butler and his siblings. Butler had provided him with love, affection, emotional ties, food, shelter, clothing, and spiritual needs “at her own expense, through her own earnings and her own contribution of time” since his birth. It further found that the only home environment K.B. has ever known was that of his mother, Butler, having never even visited Johnson's home and that his home, school, and community history was also with Butler.
The trial court found that despite Johnson's having been employed for the duration of K.B.'s life, he had never provided K.B. with material things, including clothing, food, and shelter. It further found that Johnson had not provided K.B. with love, affection, or other emotional ties; that he had not provided for his child in any way except by providing medical care through his place of employment, and he only did that after the trial court issued an order requiring the support; and that Johnson had continuously failed to take responsibility for K.B. Additionally, the trial court found that Johnson lacked “the proper family values to impart to [K.B.] and to support his request for custody,” noting that Johnson has six children with several women; that he was never married to any of the children's mothers when the children were conceived or born; and that there would be six children, ages four, five, six, seven, eight, and twelve, living in his home if he were granted custody of K.B.
Most importantly, the trial court found that Butler had provided Johnson with many opportunities to be in K.B.'s life, to create and maintain a close and continuing relationship with him, and that Johnson had not taken advantage of those opportunities.
After considering the La.Civ.Code art. 134 factors, the testimony of the parties and their witnesses, and the evidence produced, the trial court determined that it was in K.B.'s best interest that Butler be awarded sole custody and status as K.B.'s domiciliary parent. The trial court also awarded Johnson reasonable visitation with K.B.
After carefully reviewing the record, we find no evidence of a clear abuse of discretion by the trial court in granting Butler sole custody of K.B. with reasonable visitation for Johnson.
DECREE
For the foregoing reasons, we affirm the judgment of the trial court in its entirety. Costs are cast against Kawoski Johnson.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.
PHYLLIS M. KEATY JUDGE
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Docket No: 10–1502
Decided: April 06, 2011
Court: Court of Appeal of Louisiana, Third Circuit.
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