Bauchmoyer v. Spelta

548 So. 2d 1, 1989 La. App. LEXIS 1105, 1989 WL 57992
CourtLouisiana Court of Appeal
DecidedJune 1, 1989
DocketNo. 87-1349
StatusPublished
Cited by3 cases

This text of 548 So. 2d 1 (Bauchmoyer v. Spelta) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bauchmoyer v. Spelta, 548 So. 2d 1, 1989 La. App. LEXIS 1105, 1989 WL 57992 (La. Ct. App. 1989).

Opinion

KNOLL, Judge.

In this custody dispute, the mother, Madeline A. Spelta, appeals the change of custody of her three minor children to their father, A.J. Bauchmoyer. Madeline contends that the trial court abused its discretion in: 1) ordering a change of custody because she failed to obey the orders of the trial court regarding visitation privileges to Bauchmoyer, where there was no showing of detrimental effect on the children; and, 2) changing custody because she failed to marry her fiancé, Joseph Spelta, in July of 1987. In the alternative, Madeline seeks more liberal visitation privileges. We affirm.

FACTS

Bauchmoyer, age 57 and Madeline, age 42, began living in concubinage in December 1977. They lived together for approximately nine years, residing mostly in Lafayette, Louisiana. Three children were bom of that union: Regina Louise, Karl Celby, and Kenneth Garrett, who were ages nine, six and three, respectively, at the time of the second trial on August 17, 1987, when custody was changed to Bau-chmoyer.

In May of 1986, Madeline and the children left Bauchmoyer and moved to Maryland. She then began living in concubinage with Joseph Spelta, her high school boy friend of approximately twenty-five years [2]*2ago. Spelta was lawfully married at this time.

While Bauchmoyer and Madeline lived together, unbeknown to Madeline, Bau-chmoyer was lawfully married to Jane Ba-soman Bauchmoyer, who was residing in Texas. Bauchmoyer divided his time between Madeline and Jane. It was not until approximately six months after Madeline left Bauchmoyer that she learned Bau-chmoyer was married to Jane. This was right before Christmas 1986. Bauchmoyer’s marriage to Jane while also living with Madeline does not present any issues before us other than to reflect the moral character of Bauchmoyer.

Bauchmoyer and Madeline are well educated. He sells and markets construction products, and does consulting engineering. He is an engineer by trade. She has: a Bachelor’s Degree in nursing; a Master’s Degree in counseling psychology; a Master’s Degree in child and adolescent mental health counseling; and, at the time of the first trial she was completing her Ph.D. in educational research and statistics. She is also a Captain in the Naval Reserve. The record supports that both litigants’ earnings are in a comfortable income bracket.

When Madeline left Bauchmoyer, she did not tell him she was leaving him. She took the children with her, but she did not tell them they were permanently leaving their father nor that she was going to live with Joseph Spelta. This abrupt departure under false pretenses had a traumatic effect on the children. The only address Madeline left Bauchmoyer was a post office box in Virginia. It was her intention to keep the children away from Bauchmoyer.

When Bauchmoyer, Madeline and the children all lived together in Lafayette, the record supports that they had a close family relationship. The children did not know their parents were not married. Since the family unit broke up, the record supports that there is great conflict between Bau-chmoyer, and Madeline, and between Bau-chmoyer and Joseph Spelta. The children have suffered as a result of the differences between their parents and lack of cooperation of their mother.

Bauchmoyer eventually located Madeline and the children approximately one week after they left. He then filed a petition for custody in Lafayette. On September 29, 1986, a consent judgment was signed, recognizing Bauchmoyer as the natural father of the children and fixed specific visitation privileges in his favor pending the hearing for custody. At that time, Bau-chmoyer was under the impression that Madeline was married to Spelta. The visitation privileges included: any weekend upon five days notice; school vacation holidays for Thanksgiving and Easter; provided for Christmas and New Year’s vacation and a summer vacation; telephone visitation rights; and, the right to check with school authorities to be informed of the children’s school performance. Madeline was cast with return transportation costs of the children. A preliminary injunction was also issued enjoining Joseph Spelta from interfering in anyway with Bau-chmoyer’s visitation rights.

Bauchmoyer was not able to exercise his Christmas visitation rights of 1986 because of Madeline’s refusal to let him see the children. He filed a rule for contempt and attorney's fees based on Madeline’s contumacious conduct. This rule was consolidated with the custody trial and heard on February 19, 1987.

At the custody hearing, it came out that Madeline was not, in fact, married to Spel-ta. He had not yet obtained his divorce. However, on the strength of Atteberry v. Atteberry, 379 So.2d 18 (La.App. 3rd Cir.1979), writ granted, 381 So.2d 1231 (La.1980), writ denied, 386 So.2d 94 (La.1980), the trial court awarded sole custody to Madeline on her promise to marry Spelta by July 1987. Madeline was also found in contempt of court for her contumacious conduct in refusing to let Bauchmoyer exercise his 1986 Christmas visitation privileges with the children, and cast with $750 attorney’s fees.1

[3]*3Shortly after the custody and contempt hearing, Madeline again interfered with Bauchmoyer’s Easter visitation privileges with his children. Bauchmoyer had to employ an attorney from Maryland in order to obtain his children for Easter visitation privileges of 1987.

Then again, where Bauchmoyer called to exercise his Father’s Day visitation of 1987, Madeline sent the children to Arizona at her parents’ home while she was recovering from a miscarriage.

Bauchmoyer then filed another rule for contempt and attorney’s fees, and later amended the rule asking that custody be changed to him for the best welfare and interest of the children based on the violations of his visitation privileges. Madeline also filed a rule asking for an increase in child support, transportation costs and to alter visitation privileges. The rules were consolidated and heard on August 17,1987.

After this hearing, Madeline was held in contempt of court again and cast with $750 attorney’s fees. The trial court changed custody to Bauchmoyer because Madeline was still not married to Spelta and because of her “complete obstinence” in not following the directive of the court. Madeline brings this appeal to change custody back to her.

MOTION TO STRIKE

Bauchmoyer filed his brief in proper person. The brief refers to matters not introduced into evidence. Madeline filed a motion to strike those matters in Bau-chmoyer’s brief that are outside of the record. It is well settled that exhibits attached to a brief are not evidence and cannot form part of the record on appeal. Norton v. Thorne, 446 So.2d 972 (La.App. 3rd Cir.1984), and cases cited therein. This well settled rule equally applies to comments in the brief that are outside of the record. Therefore, we grant appellant’s motion to strike, inasmuch as we will not consider those matters mentioned in brief that were not made part of the record.

CHANGE OF CUSTODY

Madeline contends that the trial court abused its discretion in ordering a change of custody because she failed to obey the orders of the court regarding visitation privileges to Bauchmoyer where there was no showing of detrimental effect on the children. Madeline also urges that she did not in fact deny Bauchmoyer his scheduled Easter visitation of April 1987, thus, her breach was merely technical.

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Related

Alexander v. City of Lafayette
584 So. 2d 327 (Louisiana Court of Appeal, 1991)
Lebleu v. Southern Silica of Louisiana, Inc.
579 So. 2d 1224 (Louisiana Court of Appeal, 1991)
Bauchmoyer v. Spelta
548 So. 2d 1252 (Supreme Court of Louisiana, 1989)

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Bluebook (online)
548 So. 2d 1, 1989 La. App. LEXIS 1105, 1989 WL 57992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauchmoyer-v-spelta-lactapp-1989.