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Fin v. Fin

Court of Appeals of Louisiana, First Circuit

September 27, 2019

SCOTT JOSEPH FIN
v.
REMY BAUS FIN

          On Appeal from the 20th Judicial District Court In and for the Parish of West Feliciana State of Louisiana Trial Court No. 22, 762 Honorable William G. Carmichael, Judge Presiding

          Deborah P. Gibbs Baton Rouge, LA Attorney for Plaintiff -Appellee, Scott Joseph Fin

          Natalie C. Neale Baton Rouge, LA Attorney for Defendant -Appellant, Remy Baus Fin

          BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ.

          HIGGINBOTHAM, J.

         In this child custody matter, the mother, Remy Fin, challenges a judgment of the trial court designating the father, Scott Fin, as domiciliary parent.

         FACTUAL AND PROCEDURAL HISTORY

         Remy Fin and Scott Fin were married on April 16, 2006, and during their marriage two children were born: Joseph Baus Fin ("Baus") born September 29, 2008 and Elena Eugenie Fin ("Lena") born March 20, 2010. On September 12, 2016, Scott filed a petition for divorce and for determination of incidental matters, including a request for joint custody of the minor children and designation of him as domiciliary parent. Remy answered the petition and filed a reconventional demand also requesting joint custody and designation of her as the domiciliary parent.

         On January 11, 2017, Remy and Scott entered into a consent judgment awarding the parties joint custody without designation of a domiciliary parent. The judgment also set out a holiday schedule, allowed for uninterrupted vacation time, and provided that "all major decisions regarding the minor children shall be mutually agreed upon by the parties including, but not limited to, changing schools for the minor children, enrollment in school, medical decisions, and choice of third party care providers, etc. The children shall remain at St. James until they graduate, unless otherwise agreed to by the parties." On February 22, 2017, the parties were divorced.

         Thereafter, on October 29, 2018, Scott filed a "Rule to Modify Custody" requesting that he be designated as domiciliary parent and that the custody schedule be modified so that the children reside primarily with him during the school year. In the alternative, Scott requested that he be awarded legal authority to make decisions with regard to school enrollment for the minor children pursuant to La. R.S. 9;335A(3). In his rule, Scott pointed out that Baus was graduating from St. James in May 2019, and the parties had been unable to agree upon his school placement after his graduation. Remy answered Scott's rule to modify custody and filed a reconventional demand requesting that custody of the children remain week to week, and that she be designated as domiciliary parent. In the alternative, she requested that she be granted the authority to make decisions regarding school enrollment for the minor children.

         Scott's rule and Remy's answer and reconventional demand came before the trial court on January 22, 2019. Prior to the hearing, the parties entered into several stipulations including: the continuation of week-to-week custody, a holiday schedule, and that "all major decisions regarding the children shall be discussed by the parties including, but not limited to, changing schools for the minor children, enrollment in school, medical decisions, and choice of third party care providers." The parties also stipulated that the minor children should be enrolled in St. Luke's Episcopal School for the school year commencing August 2019.

         Thus, the only issue that remained for the trial court to decide was the designation of the domiciliary parent. After consideration of the evidence and testimony of the witnesses, the trial court rendered judgment designating Scott as the domiciliary parent. On February 28, 2019, the trial court signed a judgment that included the stipulations of the parties as well as the trial court's designation of Scott as domiciliary parent. It is from this judgment that Remy appeals.

         LAW AND ANALYSIS

         In her first assignment of error, Remy contends that the trial court committed legal error by applying the incorrect principles of law to the modification of an existing custody decree. Specifically, Remy argues that the trial court's failure to determine whether a material change in circumstances has occurred ...


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