Bourque v. Leger

322 So. 2d 784
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1976
Docket5211
StatusPublished
Cited by12 cases

This text of 322 So. 2d 784 (Bourque v. Leger) 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
Bourque v. Leger, 322 So. 2d 784 (La. Ct. App. 1976).

Opinion

322 So.2d 784 (1975)

Ella BOURQUE, Plaintiff-Appellee,
v.
David LEGER, Defendant-Appellant.

No. 5211.

Court of Appeal of Louisiana, Third Circuit.

November 20, 1975.
Rehearing Denied December 17, 1975.
Writ Refused February 6, 1976.

Ronald E. Dauterive, Lafayette, for defendant-appellant.

Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiff-appellee.

Ella Edwards, in pro per.

Before HOOD, HUMPHRIES and PETERS, JJ.

HOOD, Judge.

This suit originated as a separation suit instituted by Mrs. Ella Bourque Leger (now Mrs. Ella Bourque Edwards) against David Leger. It later was converted into an action for divorce, and judgment was rendered by the trial court on May 13, 1974, decreeing a divorce between the parties and awarding custody of their two minor children to defendant, David Leger. Thereafter, pursuant to appropriate pleadings filed by Mrs. Leger and after a hearing, judgment was rendered by the trial court on March 17, 1975, transferring the custody of the children to their mother. Defendant Leger has appealed from the last mentioned judgment.

The present suit was consolidated for trial and appeal with another suit instituted by David Leger against Mrs. Ella Bourque Leger, in which the plaintiff sought to obtain a divorce from the defendant. The judgments rendered by the trial court in that case are identical to those which were *785 rendered in the instant suit. David Leger has appealed from the judgment rendered in that companion case on March 17, 1975, which awards custody of the children to Mrs. Leger. We are deciding both of these cases on this date. See Leger v. Bourque, La.App., 322 So.2d 789.

Although plaintiff in the instant suit has remarried and is now the wife of Herman R. Edwards, she nevertheless is sometimes referred to herein as Mrs. Leger.

The sole issue presented is whether the trial court erred in changing the custody of the minor children from the father to the mother.

Mr. and Mrs. Leger were married in 1969. Two children were born of that union, one of whom is a boy, now about five years of age, and the other a girl, now about four years old. The parties separated on February 8, 1972, and a few days thereafter Mrs. Leger instituted this suit against her husband seeking a separation from bed and board, custody of the children and support. An interlocutory judgment was rendered on February 25, 1972, awarding the temporary custody of the two children to Mrs. Leger, and condemning Mr. Leger to pay support for her and for the children. Shortly after that judgment was rendered, Mrs. Leger voluntarily placed the children in the custody of Mr. Leger because she was ill and she felt that she could not properly care for them at that time. An entry on the minutes of the trial court shows that on March 10, 1972, the parties stipulated that the custody of the two children would be granted to Mr. Leger, with reasonable visitation rights to the mother, and that the previous award of alimony and child support would be reduced.

A few months later, upon application of Mrs. Leger, a rule was issued directing defendant to show cause why the custody should not be transferred to her. After a hearing, judgment was rendered by the trial court on November 9, 1972, decreeing that Mr. Leger should retain custody of the children, but increasing the amount of alimony or support which he should pay to his wife.

Plaintiff obtained the issuance of another rule in December, 1972, directing defendant to show cause why custody of the children should not be transferred to Mrs. Leger. A hearing was held, and judgment was rendered by the trial court on February 16, 1973, again decreeing that the father was to retain custody, but ordering an increase in child support which previously had been decreed by the court.

The present suit was converted into a suit for divorce early in 1974, and it was consolidated for trial with the above mentioned companion suit. Following a trial on the merits of these companion cases, judgment was rendered in each suit on May 13, 1974, granting a divorce in favor of defendant, David Leger, on the grounds that the parties had lived separate and apart for more than two years, and awarding custody of the children to him.

On October 16, 1974, Mrs. Leger obtained the issuance of another rule seeking to have the children placed in her custody. After trial of that rule, judgment was rendered by the trial court on March 20, 1975, awarding the custody of both children to the mother, Mrs. Ella Bourque Leger, granting specific visiting rights to the father, and condemning Mr. Leger to pay a specified amount per month as child support. It is from that judgment that the appeal which is before us now was taken.

The principal argument made in behalf of Mr. Leger on this appeal is that the trial court erred in failing to apply the old "double burden of proof" rule, a harsh, mechanical jurisprudential rule which developed as the result of some language used in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955). See King v. King, 245 So.2d 560 (La.App. 3 Cir. 1971); Siggio v. Siggio, 217 So.2d 673 (La.App. 3 Cir. 1969); Cenac v. Power, 211 So.2d 408 (La.App. 1 Cir. 1968); Overstreet v. Overstreet, *786 244 So.2d 313 (La.App. 4 Cir. 1971), and Emery v. Emery, 223 So.2d 680 (La.App. 4 Cir. 1969).

Our Supreme Court, however, in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), discarded the so called "double burden of proof" rule, and instead the court set out clear and understandable guidelines which are to be followed in determining to whom custody of children should be awarded, whether the case involves the initial awarding of custody or the transfer of custody from one person to another.

As stated in Fulco the following legal principles are applicable in determining the award of custody of children: (1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children; (2) generally, it is in the best interest of the children that their custody be awarded to the mother; (3) when the trial court has made a considered decree of permanent custody, the party seeking to change that custody bears a heavy burden of proving that the best interest and welfare of the children will be served by making that change, even though it involves removing them from the environment to which they are accustomed; and (4) on appellate review, the determination made by the trial judge in a child custody matter is entitled to great weight, and his decision as to custody will not be disturbed in the absence of a clear showing of abuse of the great discretion which is vested in him. See Nethken v. Nethken, 307 So.2d 563 (La. 1975); Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); DeCelle v. DeCelle, 313 So.2d 634 (La.App. 2 Cir. 1975); Southern v. Southern, 308 So.2d 424 (La.App. 3 Cir. 1975); Hilliard v. Richard, 291 So.2d 875 (La. App. 3 Cir. 1974); LeBlanc v. LeBlanc, 293 So.2d 883 (La.App. 1 Cir. 1974); Gulino v. Gulino, 303 So.2d 299 (La.App. 1 Cir. 1974). See also, Nugent v. Nugent 232 So.2d 521 (La.App. 3 Cir. 1970).

In Estes v. Estes, supra, the trial court granted a change of custody from the father to the mother, and the court of appeal reversed. The Supreme Court reversed the court of appeal and reinstated the judgment of the trial court, affirming the change in the previous award of custody. In so doing, the Supreme Court said:

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Bluebook (online)
322 So. 2d 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bourque-v-leger-lactapp-1976.