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SUPREME COURT OF LOUISIANA

No. 97-C-0541
Companion Application 97-C-0577

TOMMY LEE EVANS
Versus
DONNA COODY LUNGRIN

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF BEAUREGARD, STATE OF LOUISIANA
JOHNSON, Justice*
We granted certiorari in this child custody case to determine whether the trial court erred in awarding joint custody with four-month, alternating, split physical custody to a mother who relocated to the state of Washington and a Louisiana father. The court of appeal amended the trial court judgment to designate the child's mother as the domiciliary parent, and affirmed the trial court judgment as amended.

FACTS AND PROCEDURAL HISTORY
Relator, Donna Coody, gave birth to her daughter, Lindsay Jean Coody on April 27, 1994.  On December 26, 1994, Donna Coody married Bobby Lungrin. Donna Coody Lungrin and Bobby Lungrin subsequently moved to Alabama with Lindsay. On June 30, 1994, another man, Tommy Lee Evans, filed a formal acknowledgment of paternity, claiming that he is Lindsay's biological father.  In
* Pursuant to Rule IV, Part 2, Section 3, Chief Justice Calogero was not on panel.
response, Mrs. Lungrin filed a motion to order fertility testing, alleging that Mr. Evans

had previously represented that he was sterile, and therefore, unable to father a child. Mrs. Lungrin and Mr. Evans were never married to each other.  The parties consented to blood testing to determine Lindsay's biological father.  The trial court issued a court order requiring the paternity test.  The parties also stipulated that Mr. Evans could visit with Lindsay for two hours every other Saturday pending the test results.
As a result of the court-ordered paternity testing, it was discovered that Mr. Evans is in fact Lindsay's biological father.  Since then, Mr. Evans has been attempting to establish a relationship with the child.  He has paid child support and has sought regular visitation with Lindsay.  On April 11, 1995 Mrs. Lungrin and Mr. Evans stipulated to joint custody, with Mrs. Lungrin as the domiciliary parent.  The parties also stipulated that Mr. Evans would exercise visitation with Lindsay one week per month for nine months and alternating weeks in June, July, and August.  The stipulation further provided that Mr. Evans was to pay $150.00 per month in child support and that each party would give the other sixty days' prior notice of any change in residence.
Mr. Lungrin, who is a Sergeant in the U.S. Army, was transferred to the state of Washington.  Based on Mrs. Lungrin's impending move to Washington, Mr. Evans, who lives in Dubach, Louisiana, filed a rule on August 31, 1995 seeking sole custody of Lindsay.  Mr. Evans also alleged that Mrs. Lungrin refused to comply with the visitation schedule, interfered with his court-ordered telephone contact with the child and was unwilling to facilitate, encourage and foster his relationship with the child.  In her response to the rule, Mrs. Lungrin denied Mr. Evans' allegations and asked the court to maintain the original joint custody agreement.
During the trial of the matter, which was held on December 4, 1995, Mr. Evans
testified that he is able to care for Lindsay on a full-time basis because he is unable to

work due to a back injury.  There is no evidence or allegations that Mr. Evans' disability interferes with his care of Lindsay.  Mr. Evans testified that when Lindsay is with him, he feeds her, bathes her, and puts her to sleep himself.  His testimony was corroborated with the testimony of several neighbors, who testified that Mr. Evans always has the child with him and never leaves her with babysitters.  Mr. Evans asked the court to award him equal sharing of the physical custody of Lindsay.
Several of Mr. Evans' neighbors also testified that Mr. Evans' home is clean and well-kept. Mr. Evans lives in a mobile home with his mother, who is of ill health. His mother's ill health however, does not prevent her from assisting with Lindsay's care. Mr. Evans' sister, Patricia Johnson, testified that she visits Mr. Evans at least twice a month.  She testified that based on her observation, Lindsay is happy when she is with her father, recognizes him and calls him "Daddy", and often plays with other neighborhood children.  Several neighbors confirmed that Lindsay has many playmates in the area, and that they have observed Mr. Evans and Lindsay engage in activities such as going to the zoo and riding bicycles.
In Washington, Mrs. Lungrin and her husband live in a two bedroom home with Lindsay and have visitation with Mr. Lungrin's seven-year-old son from a previous marriage.  Mrs. Lungrin is also capable of caring for Lindsay on a full-time basis because she does not work outside the home.  At the trial, Mrs. Lungrin's relatives and friends testified as to her superior parenting skills and described her as an "immaculate housekeeper".  At the trial, Mrs. Lungrin acknowledged the fact that the stipulated visitation schedule was unworkable due to her move to the state of Washington.  She was also concerned about extended visitations for the child.  Mrs. Lungrin testified that after the seven-day visits with Mr. Evans pursuant to the visitation plan, Lindsay
had temper tantrums and would excessively cling to her.  She also testified that after

such visits, it was difficult to put Lindsay to sleep for about two days.  Mrs. Lungrin further testified that in eight of ten visitations with Mr. Evans, Lindsay has not willingly gone with him.  Mrs. Lungrin's aunt and a psychotherapist corroborated Mrs. Lungrin's testimony about Lindsay's aberrant behavior after visits with Mr. Evans.
At the trial, Mrs. Lungrin presented the testimony of Nancy DeVaney, a licensed custody evaluator in Alabama, by way of deposition.  Ms. DeVaney was unable to appear at the trial of this matter due to a previously scheduled court appearance on the same date.  Mr. Evans did not object to the admission of the deposition into evidence, but noted for the record that Ms. DeVaney had neither seen him, nor had any contact with him whatsoever.  Ms. DeVaney holds a Doctorate degree in Clinical Social Work. She is licensed in Alabama and Florida and is registered with the Professional Academy of Custody Evaluators.  She has engaged in the practice of psychotherapy for the past twenty (20) years and has been performing custody evaluations for the past ten (10) years.  She has previously testified in court after being qualified as an expert in custody matters.
Ms. DeVaney testified that when a child's parents do not live within a distance which allows for frequent contact with the child, a three-month, alternating split between parents is unacceptable for a child Lindsay's age.  Ms. DeVaney based her opinion on four visits with Mrs. Lungrin and Lindsay, and on literature and professional journals.  Mrs. Lungrin proposed that Lindsay have four, twelve-day visits a year with Mr. Evans, with Mrs. Lungrin keeping the child every fourth night. During this time, Mrs. Lungrin would remain in Louisiana, presumably at her mother's home in Deridder, Louisiana.  The length of these visits would be extended each year until Lindsay reaches kindergarten age, at which time Mr. Evans could have full summer visitation.
After trial and after taking the matter under advisement, the trial court found that equal sharing of physical custody was in Lindsay's best interest during her preschool years.  Accordingly, the trial court ordered equal custody periods in blocks of four months, with Mr. Evans' visitation to commence in April, 1996.  The trial court also ordered that joint custody be continued, but that neither parent be designated as the domiciliary parent.  Finally, the trial court ordered visitation in favor of Lindsay's maternal grandparents one weekend each month that the child is with her father.
Mrs. Lungrin appealed, alleging that the trial court's findings had been interdicted by legal error.  Mrs. Lungrin maintained that the trial court's ruling refers to former La. C.C. art. 131, which had been repealed effective January 1, 1994.  Mr. Evans' initial rule for visitation was filed after this date.  The court of appeal found that although the trial court cited repealed civil code provisions, the trial court nevertheless applied the revised articles.  The court of appeal also found that the trial court properly awarded joint custody in that neither party proved by clear and convincing evidence that sole custody was in the best interest of the child.  The court of appeal however, further found that maintaining Mrs. Lungrin as the domiciliary parent will add needed stability and continuity in Lindsay's life.  The court of appeal noted that Mrs. Lungrin and Mr. Evans have already developed disagreements as to Lindsay's medical needs. The court of appeal further noted that Mrs. Lungrin has provided the majority of Lindsay's care in the past, and is the more experienced of the two parents, having already raised another child.  Accordingly, the court of appeal affirmed the trial court, but amended the custody award to reinstate Mrs. Lungrin as the domiciliary parent.
Mrs. Lungrin filed a writ application with this court, alleging the following assignments of error:
1.
The court of appeal erred in affirming the trial court's award
of four-month, alternating split custody to a Washington
mother and a Louisiana father;


2.
The court of appeal erred in finding that the trial court
judgment was not interdicted by legal error;


3.
The court of appeal erred in affirming the trial court's
disturbance of the consent decree of joint custody because
Mr. Evans failed to meet the burden of proof for change of
custody in that he failed to demonstrate that the [proposed]
plan would be in the best interest of the child; and


4.
The court of appeal erred in affirming the trial court
irrespective of its failure to use the "best interest of the
child" standard.



In a companion writ application (97-C-0577), Mr. Evans alleges that the trial court erred in granting visitation to the mother during the father's custody period, while failing to grant reciprocal visitation to the father during the mother's custody period. Mr. Evans urges that pursuant to La. R.S. 9:335, a domiciliary parent is the parent with whom the child primarily resides.  Mr. Evans argues that in the equal custody arrangement, the trial court awarded custody of the child equally between the parents and that therefore, it is improper to designate a domiciliary parent when there is no parent with whom the child primarily resides.

DISCUSSION
It is well-settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong."  Rosell
v. Esco, 549 So. 2d 840, 844 (La. 1989). However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of
the evidence.  Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95); 650 So. 2d

742, 747, rev'd in part, on other grounds, 96-3028 (La. 7/1/97); 696 So. 2d 569, reh'g denied, 96-3028 (La. 9/19/97); 698 So. 2d 1388.  A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.  See Lasha
v. Olin Corp., 625 So. 2d 1002, 1006 (La. 1993).  Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.   See Lasha, 625 So. 2d at 1006. When such a prejudicial error of law skews the trial court's finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Lasha, 625 So. 2d at 1006.
The prior Article 131 established a rebuttable presumption in favor of joint custody and the jurisprudence placed the burden of proof that joint custody would not be in the child's best interest on the party seeking sole custody.  Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La. L. Rev. 103, 109 (1994).  The inquiry was directed toward the quality of the relationship existing between the parents with respect to the rearing of the child.  The best interest of the child was the controlling criterion in custody and visitation awards in prior Article 131, and there was a rebuttable presumption that joint custody was in the best interest of the child.  See Rigby, supra note 14, at 105.
The prior Article 131 was revised by Act 261 of 1993, which became effective on January 1, 1994.  With the revisions, the rebuttable presumption in favor of joint custody contained in the prior law is omitted. In its place is the "best interest of the child" test with a mandatory descending order of types of custodial arrangements that may be ordered by the court.  Rigby, supra notes 32 and 33, at 108. The present
Article 131 provides the following:

"In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child." La. C.C. art. 131.
The new legislation mandates that if the parents agree as to who will have custody, the court "shall award custody" in accordance with the parents' agreement unless the best interest of the child requires a different award.  La. C.C. art. 132. See also, Rigby, supra note 34, at 108. If the parents do not agree as to who is to have custody, or if their agreement is found not to be in the best interest of the child, the court "shall award custody to the parents jointly." La. C.C. art. 132. No longer is joint custody simply presumed to be in the best interest of the child;  it is mandated absent an
2
appropriate parental agreement for another custodial arrangement. Rigby, supra note 37, at 109.  The revisions also contain changes in the burden of proof in custody determinations. Pursuant to the revised La. C.C. art. 132, a substantially higher burden is now placed on the parent seeking sole custody -- that of "clear and convincing evidence."3
In the instant case, plaintiff, Tommy Lee Evans, filed his rule for modification of custody on August 31, 1995.  Because plaintiff's rule was filed after January 1, 1994, the amended Article 131 was applicable to the facts of this case.  However, the trial court made reference to La. C.C. art. 131 as it read prior to the amendment.  The
2 La. C.C. art. 132 provides in pertinent part:
"In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to parents jointly...."
3 La. C.C. art. 132 provides in pertinent part:
"...if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent."
prior Article 131, subsection D provided in pertinent part:

"D. For purposes of this Article, 'joint custody' shall mean the parents shall, to the extent feasible, share the physical custody of children of the marriage.  To the extent it is feasible, physical custody of the children shall be shared equally. In making an award of physical custody, the court shall consider, among other things, the factors enumerated in Paragraph (C)(2)...." Act 905(D),

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