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Yerger v. Yerger

Court of Appeal of Louisiana, Second Circuit

February 27, 2015

ASHLEY YERGER, Plaintiff-Appellee
v.
LOREN BEAU YERGER, Defendant-Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 546,704. Honorable Robert P. Waddell, Judge.

AFFIRMED.

SEAN D. MILLER, Counsel for Appellant.

WEEMS, SCHIMPF, GILSOUL, HAINES, LANDRY & SHEMWELL, By: Kenneth P. Haines, Counsel for Appellee.

Before BROWN, DREW & PITMAN, JJ.

OPINION

Page 604

[49,790 La.App. 2 Cir. 1] PITMAN, J.

Defendant Loren Beau Yerger (" Beau" ) appeals the trial court's judgment regarding child custody in favor of Plaintiff Ashley Yerger (" Ashley" ). For the following reasons, we affirm.

FACTS

Beau and Ashley Yerger married on July 8, 2006, and established a domicile in Caddo Parish. Two minor children were born of the marriage, i.e., daughter ZBY (born August 3, 2007) and son MRY (born February 11, 2011). The parties initially separated in November 2010, while Ashley was pregnant with their second child, and Ashley filed for divorce in December 2010. In January 2011, the parties entered into an interim judgment in which they agreed they would share joint custody of the children with Ashley designated as domiciliary parent. After the birth of MRY in February 2011, the parties reconciled and jointly moved to dismiss the initial petition for divorce.

On April 24, 2014, Beau filed a petition for divorce under La. C.C. art. 102 and incidental matters, claiming that the parties separated on April 11, 2014. He stated that the parties had reached an agreement regarding child custody and that they desired that the agreement be made a judgment of the court. On May 23, 2014, Ashley filed an answer and denied Beau's statement that they had reached an agreement regarding custody. She explained that she discovered information that his proposal would not be in the best interest of the children and, therefore, stated that she did not consent to his proposed plan of child custody or his offer of child support. Ashley contended that the parties should be awarded joint custody of their children [49,790 La.App. 2 Cir. 2] and that she should be named domiciliary parent, subject to a plan of physical custody set forth in a joint custody implementation plan approved by the court that allows Beau designated periods of physical custody.

A hearing on the issue of custody was held on June 11-12, 2014. Beau testified that he wants shared custody because he has a loving relationship with his children. He stated that, prior to hiring attorneys, he and Ashley agreed to a week-on, week-off custody schedule during their separation and that they put this agreement in writing, explaining that the children stay in the family home and that the parents rotate in and out of the home. He testified that both parents share responsibilities of the children and explained that ZBY has an iPod Touch that she uses to communicate with her parents through text messaging and FaceTime. Beau noted that he helped ZBY make a calendar so she can understand which days she will see each parent. Beau testified that he filed for Chapter 13 bankruptcy in 2011 and that he has fallen behind on making mortgage payments on the family home.[1] He stated that, if he is forced to leave the home due to foreclosure, he would have one month to establish a residence elsewhere, and he hypothesized that he would

Page 605

stay with his mother and grandmother, who live in Shreveport. He stated that he works full time, Monday through Friday, and that he participates in weekly fishing tournaments and likes to exercise. Beau admitted that the week-on, week-off schedule was altered when he had a fishing tournament on his week with the children and explained that Ashley would take the children a day early so that he could participate in the tournaments. Ashley testified that she wants joint [49,790 La.App. 2 Cir. 3] custody because it will provide a more stable home for the children. She stated that she and Beau had a temporary custody agreement until their family home sold, but that she changed her mind about the agreement when she discovered that Beau had not been paying the mortgage on the home. Ashley discussed her financial situation and stated that her only expenses were her car note and daycare costs. Ashley noted that, although Beau is a good father, he deviates from the strict routine they had in place for their children. She explained that ZBY has ADHD and takes medication on school days and therefore needs to be on a fixed schedule with daily routines. Ashley testified that she works full time and that ZBY attends first grade in a year-round program and an after-school program and that MRY attends daycare. Ashley stated that her plan is to live with her parents until she can find a house to rent. The parties also stipulated that, if Ashley's father were called to testify, he would state that his daughter and grandchildren could stay at his home.

After hearing the testimony of both parties, the district court provided oral reasons for judgment and ruled that joint custody with Ashley named as domiciliary parent was in the best interest of the children (per La. C.C. art. 131). It analyzed the La. C.C. art. 134 factors and stated that most did not favor ...


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