This article appeared in the Spring 1995 issue of Southern University Law Review, published by the Southern University Law Center. It may be cited as M. R. Franks, A Review of 1994 in Louisiana Family Law, 22 S.U. L. Rev. 193 (Spring 1995).

*Assistant Professor of Law, Southern University Law Center; B.S., J.D., Memphis State University.

The year 1994 wrought many important changes in Louisiana family law, including several cases of significance decided by the Supreme Court of Louisiana. But the two best decisions come from the Louisiana courts of appeal. One is Saussy v. Saussy,¹ regarding voluntary underemployment; the other is Tolar v. Tolar,² regarding waiver of alimony in antenuptial agreements.

In the first of these cases, Saussy, the Third Circuit had the courage to hold that a father is not "voluntarily underemployed" for having left retail shoe management where he earned $36,000 per year and for having taken instead a $15,000 sales position in another industry. The plaintiff in Saussy was asked to resign from his $36,000-a-year managerial position with Kinney Shoes. Following his forced resignation he did not seek re-employment in the retail shoe business. That business demands a sixty-to-seventy hour work week, including weekends. Instead, Mr. Saussy took a $15,000-a-year job in the automotive industry.

The plaintiff's long hours at Kinney Shoes had contributed to the breakup of his marriage and, after the divorce, this same grueling work schedule prevented him from having sufficient time to devote to his children. Only hours after he would arrive in Gulfport, Mississippi, where his children lived, would he have to leave to return to his job and home in Lafayette. The majority of the court noted that "a father's children benefit not only by the money he is able to earn, but by the presence of his company, and nowhere does the law require that a parent work 60-70 hours to the detriment of his children's right to the parent's company."³

It is refreshing to see a court recognize that parents are not under an automatic duty to maximize their earnings for the benefit of their children. After all, offspring of intact marriages have never had the right to insist that both parents work to their fullest capacities. For example, a lawyer may, with impunity, quit a $200,000-a-year practice and take a much lower-paying job as a district court judge hearing divorce cases, simply because she or he finds serving the public more satisfying. To appoint a divorced spouse as taskmaster over the former husband's or wife's career, and to make the extraction of money the main focus, is to give children of divorced parents greater rights than children of intact marriages. Offering divorcing parents with primary custody such a powerful weapon operates to make divorce the more attractive for others so inclined.

The less-than-enlightened dissent by Judges Knoll and Woodard in the Saussy case is unfortunately reminiscent of a chauvinistic, sexist mindset that views males not as human beings but only as workhorses. It reflects on a view that a father's highest utility to his offspring is not his presence or love, but only his limitless capacity for court-ordered sweatshop servitude.

Blame for the breakdown of law and order in American society today may be laid, in large part, on the doorstep of legislators and judges who for the past sixty years have facilitated the breakup of families.⁴ Under old, fault-oriented precepts in place until the late 1920s, a parent could be deprived of his or her children only by a showing of his or her grievous fault. When such fault was shown, the guilty parent rightly would be required to make the family whole for his or her breach of the marriage obligation, under reasoning almost analogous to tort logic.

Sometime in the late 1930s or early 1940s, legislative and judicial minds began acting as if they viewed themselves as knights in shining armor whose highest duty it was to rescue the damsel in distress from the villain -- except that the villain often was a loving father and the distressed damsel in some cases merited little misplaced chivalry. Decisionmaking by sex stereotyping became the order of the day, and by the mid-1960s, the steel shackles and iron bars of bondage had hardened to become every bit as real to the male slaves of the twentieth century as they had been to their black counterparts of the nineteenth.

If the twisted logic of vindictiveness ever made any sense at all in the mindset of the 1940s, surely it ceased doing so by the early 1970s when -- with the gradual liberalization of no-fault grounds for divorce -- fault ceased being a factor for all practical purposes except preclusion of alimony. Marriage today has been reduced from a sacred institution to a glorified form of going steady; it is an institution in which a spouse at fault can, for the asking, simply excise a nettlesome mate. The chauvinistic "make the bum pay" mentality is an anachronism. Unfortunately, it is an anachronism that is all too prevalent still.

The unintended consequences in the 1990s of the misplaced chivalry of the past surely include the erosion of marriage as an institution. Marriage is now rendered nearly unmarketable by laws and by judicial decisions whose cumulative long-term effect has been to encourage young persons to boycott the institution. The marriage rate continues to decline each year, as more and more persons opt out of an institution that many, both male and female, view as offering them few if any rights but many burdens. The direct result for society has been a rise in illegitimacy and a concomitant rise in crime, drugs, and the ultimate breakdown of American social structure.

In hearing family-law cases, courts would do well to consider the following checklist and contemplate the following questions each time they prepare to render a decision:

The majority opinion in the Saussy case meets the proposed three-part test and is both courageous and refreshing.

Also refreshing among the 1994 child support decisions is that of the Second Circuit in the case of Nixon v. Nixon.⁵ There, the court determined the correct approach for calculating child support in cases of split custody. It said the basic support obligation should be determined separately for the number of children in the domiciliary custody of each parent.

The amount of support each parent owes the other is then calculated by multiplying the owed support obligation by the parent's proportionate share of combined adjusted income. In this way, each set of children will receive the presumed level of support recommended by the guidelines for a single household containing that number of children.⁶ Two support awards are thus calculated, one for support to the father and the other for support to the mother. The smaller is then subtracted from the larger, and only the difference is paid. In the Nixon case, Mr. Nixon was ordered to pay $98.47 per month to Mrs. Nixon.

With equal sharing of custody now legislatively mandated in Louisiana,⁷ the Nixon case has potential for application to cases of joint custody as well as split custody. There will be more cases of joint custody with equal time sharing of the children in the near future. Indeed, in Brazan v. Brazan,⁸ the First Circuit affirmed the trial court's award of joint custody with equal sharing of time in seven-day segments, where (i) the child was two years old; and (ii) where a social worker stated that children require both masculine and feminine rôle models and that a visiting parent cannot really be an object of love for a child because there is a lack of consistency on a day-to-day basis. The social worker recommended equal sharing. The court noted that the parents communicate well concerning the child.⁹

In cases of joint custody with nearly equal time sharing, the trial court should determine the number of days the child will spend with each parent. The court can then prorate child support between the parents, just as it did in the split-custody case of Nixon. Say, for example, that using Line 6 of the child suport worksheet,¹⁰ the court orders Parent A to pay Parent B an amount equal to 195/365 of Parent A's support obligation (from Line 6 of the child support worksheet) for the 195 days out of 365 that the child spends with Parent B. The court could then order Parent B to pay Parent A an amount equal to 170/365 of Parent B's support obligation from Line 6 of the child support worksheet (for the 195 days out of 365 that the child spends with Parent A).

Obviously, the smaller of the two amounts would be subtracted from the larger, with the parent owing the larger sum ordered to pay only the difference. In cases of equal time sharing where the parents enjoy equal or nearly equal earning abilities, the award of support would, as in Nixon, be nearly zero -- as well it should be under such circumstances.

If times are changing with regard to child support, they are also changing with regard to alimony. Two alimony cases during 1994 resulted briefly in a split of authority among the circuits; the question in each case being whether permanent alimony may be waived in an antenuptial agreement. In Tolar v. Tolar,¹¹ the Second Circuit determined that public policy does not prohibit the waiver of permanent alimony (as distinguished from alimony pendente lite) in an antenuptial agreement. But in McAlpine v. McAlpine,¹² the Fourth Circuit determined that a waiver of permanent alimony in an antenuptial agreement is unenforceable as against public policy, as the parties cannot possibly assess fault or lack of fault at the time of such an agreement's confection.

The Supreme Court of Louisiana granted writs in the Fourth Circuit case and affirmed, holding (without considering the trend in other states) that "it is against the public interest to permit the parties to a marriage contract to enter into an antenuptial agreement relieving them of any obligation to pay alimony after divorce."¹³ Justice Kimball dissented.

The decision runs against the trend in recent years in which most courts have upheld alimony waivers contained in antenuptial agreements. The Supreme Court of West Virginia articulated the reasons for this trend in Gant v. Gant:¹⁴

Finding that circumstances had changed in three decades, the West Virginia court determined that alimony limitations in prenuptial agreements today serve to encourage marriage, exactly the opposite of their effect thirty years ago. Similar decisions upholding alimony waivers in antenuptial agreements have been reached in other states.¹⁶

The majority opinion of the Supreme Court of Louisiana looked at one policy consideration -- the dubious need to keep destitute spouses of those wealthy enough to have antenuptial agreements from becoming public charges -- while overlooking the far more important policy consideration that the announced rule only serves to render marriage less marketable as an institution in the 1990s. At a time when marriage and family are the best hope our community and country has, that thought should give all of us pause.

A. Custody

In Barnes v. Cason,¹⁷ the Second Circuit reversed a trial court for having awarded a mother joint custody with primary domiciliary status. The trial court made findings that the mother "had remarried and was living in a stable environment and was employed."¹⁸ The trial court ignored the following facts: (i) the mother, two months earlier, had married a man whom she had known for only a month prior to the marriage; (ii) she had lived with several men; and (iii) she was emotionally unstable, moved about frequently, and maintained no steady employment. The mother's "employment" to which the trial court referred in its decision was a job, taken only a few days before trial, in a fast-food restaurant.

The record showed the mother did not adequately clothe or bathe the children and disciplined them inappropriately. The trial court also ignored the recommendations of the social worker and glossed over the stability the father could provide, including daily involvement with the paternal grandmother, a nurse. Finding manifest error and an abuse of discretion, the appellate court reversed and rendered judgment designating the father as primary domiciliary parent.

In McKinley v. McKinley,¹⁹ the Second Circuit affirmed the award of a child to the mother's husband who was neither the child's biological nor legal father. There were three children, the eldest of whom was born six weeks prior to the marriage. Although the couple knew (and blood tests at the time of divorce later confirmed) that that child was not the husband's, shortly following the child's birth the couple placed the husband's name on the birth certificate. This court found this act to be a legal nullity, as only a father can formally acknowledge an illegitimate child.

At the custody hearing, the evidence showed that, although neither was a model parent, the best interests of all three children required primary custody to the husband. As to the eldest child, the mother contended custody could not be awarded to a nonparent absent clear and convincing evidence that awarding the parent custody would be "detrimental" to the child. The trial court found that separation from the child's half-siblings would be "detrimental" to them. Noting that if this were the only child in the custody dispute, the law would require an award of primary custody to the mother, the appellate court nonetheless affirmed. Separation from siblings is sufficiently "detrimental" to a child as to meet the heightened test for an award of custody to a nonparent.

In Creed v. Creed,²⁰ the Court of Appeal for the Third Circuit held that the best interests test standing alone cannot be used to award custody to grandparents and thereby deprive a biological parent of custody. This can be done only for compelling reasons and by convincing proof that the biological parent is unfit and that substantial harm would result to the child. A parent's economic status relegating her to frequent moves and often to having to stay with family or friends is not a sufficient reason to deny that parent custody in favor of a non-parent where the evidence shows that the children are well nourished, loved, never physically abused and generally cared for well.

In Mayeux v. Mayeux,²¹ the Third Circuit considered who bears the burden of proof and what proof is necessary in an action by a parent against a non-parent to modify a nonconsidered custody decree. Agreeing with the Second Circuit case of Hill v. Hill,²² the Third Circuit held that the burden of proof is on the person seeking the change and that the burden is the same as in any other action to modify custody. The party seeking modification of a consent decree awarding permanent custody must establish a material change in circumstances, and he must establish that a change of custody is in the best interests of the child.

In Rush v. Rush,²³ the Third Circuit held that the domiciliary joint custodian's living in open concubinage, in violation of a provision of the judgment of divorce that "she shall not live with or have overnight any man that she is not married to when the minor children are in her physical custody"²⁴ did not warrant a change of domiciliary custody. It did, however, justify imposition of a six month jail sentence for contempt, suspended on condition of future compliance with the anti-fornication clause of the judgment.

In Johnson v. Johnson,²⁵ the First Circuit held that where the sole custodian moved to Mississippi without informing the noncustodial parent, the mere fact of the unannounced move did not warrant a change of custody to the mother. The move was not a sufficient change of circumstances to meet the heavy burden of Bergeron v. Bergeron,²⁶ requiring proof by clear and convincing evidence that the present custodial arrangement is deleterious to the child and that the harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child.

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