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Mills v. Wilkerson3/26/2001
evaluation Hearing
The Mills argue that the trial court erred in assessing them the entire costs of the re-evaluation hearing, especially in light of the interim judgment, which divided the costs of the first hearing between them and Charles.
The party cast in judgment is generally taxed with costs, but the court may assess costs of a suit in any equitable manner. La. C.C.P. art. 1920. Upon review, a trial court's assessment of costs can be reversed only upon a showing of an abuse of discretion. Grocery Supply Co. v. Winterton Food Stores, 31,114 (La. App. 2d Cir. 12/9/98), 722 So.2d 94; Rauch v. Rauch, 98,739 (La. App. 5th Cir. 12/16/98), 725 So.2d 558. Because the Mills have ultimately prevailed, it would be abusive and inequitable to make them pay the costs of the re-evaluation hearing. Judgment will be reversed and rendered accordingly.
Answer
Charles answered the appeal alleging that the trial court erred in awarding the Mills any visitation. He cites Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000), for the contention that grandparent visitation infringes on his constitutionally protected rights as a parent. Since we now award the Mills and Charles joint custody of Ryan, we do not need to address this issue. Furthermore, we decline to address this constitutional challenge raised for the first time on appeal. URCA Rule 2-12.4.
Conclusion
For the reasons expressed, we reverse the trial court's grant of sole custody of Ryan to Charles, reinstate the prior joint custody decree, and modify it to designate the Mills domiciliary custodians. We also reverse the assessment of costs of the re-evaluation hearing, assessing these to Charles. Finally, we define Charles' custody periods. Judgment is rendered as follows:
It is ordered, adjudged, and decreed that A.K. Mills and Virginia Mills and Charles Wilkerson are granted joint custody of Ryan Wilkerson with Mr. and Mrs. Mills designated domiciliary parents. Charles is granted the following reasonable custody periods:
The first and third weekend of each month from September 1 to May 31 from 6:00 p.m. on Friday until 6:00 p.m. on Sunday.
Thanksgiving: Wednesday prior to Thanksgiving Day at 6:00 p.m. until the Sunday after Thanksgiving Day at 6:00 p.m in even-number years.
Christmas: December 26 at 6:00 p.m. until December 30 at 6:00 p.m. in odd number years.
December 24 at 6:00 p.m. until December 28 at 6:00 p.m. in even number years.
Easter: Thursday prior to Good Friday at 6:00 p.m. until Easter Sunday at 6:00 p.m. in odd-number years.
Summer visitation: Last two weeks of June, all of July, and the first two weeks of August, with the Mills having physical custody the first and third weekend of July from 6:00 p.m. on Thursday until 6:00 p.m. on Sunday.
It is further ordered that the parties communicate on at least a monthly basis about Ryan's medical, physical, and emotional welfare and allow reasonable telephone calls from the other party to Ryan when he is in their physical custody.
It is further ordered that the Mills and Charles undertake the necessary steps for the Mills to be re-designated payees for Ryan's social security benefits and that the Mills deliver to Charles one- half of the month of June and August checks, and all of the month of July checks, upon receipt thereof.
It is further ordered that Charles pay the costs of the re- evaluation hearing, together with appellate costs.
REVERSED AS TO CUSTODY AND COSTS; JUDGMENT RENDERED.
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