Cancienne v. Ziegler

384 So. 2d 843, 1980 La. App. LEXIS 4012
CourtLouisiana Court of Appeal
DecidedMay 13, 1980
DocketNo. 11104
StatusPublished
Cited by5 cases

This text of 384 So. 2d 843 (Cancienne v. Ziegler) 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
Cancienne v. Ziegler, 384 So. 2d 843, 1980 La. App. LEXIS 4012 (La. Ct. App. 1980).

Opinion

CHEHARDY, Judge.

Plaintiff-appellant, James M. Cancienne, on December 15, 1978, filed suit for divorce against his wife, Fay Ann Ziegler Canci-enne, on the ground of adultery, and for custody of the 13-year-old child of the marriage, Melissa.

[844]*844Defendant-appellee answered and reconvened for a separation from bed and board on abandonment and cruel treatment and additionally, sought custody of the minor child, alimony and child support.

The custody rule was heard on January 5, 1979 before Judge Richard H. Gauthier, and temporary custody of Melissa was granted to Mr. Cancienne. In giving his reasons from the Bench, Judge Gauthier explained that “ * * * while adultery has not been proven, the appearance of adultery has. I do not feel that the situation that is now existing * * * is the correct type of family situation to bring up a young girl * * *He added, however: “This is only a temporary thing. I believe the proper upbringing of a young lady is with her mother. Should your wife straighten out and do the right things, I will lean towards giving Melissa back to her.”

Trial on the merits was delayed due to the recusation of Judge Gauthier and was then heard on May 11, 1979 before Judge Melvyn J. Perez, who found that adultery had not been proven, and awarded custody of Melissa to Mrs. Cancienne. Relative to the defendant’s reconventional demand, Judge Perez decreed a separation from bed and board based on mutual fault.

As per agreement and stipulations between the parties, he also ordered Mr. Can-cienne to pay Mrs. Cancienne alimony and child support in the amount of $628 per month, out of which Mrs. Cancienne would pay the house note of $128.

Pay and James Cancienne had been married for more than 20 years and two children had been born of the marriage: Melissa, 13 years of age, and Deborah Ann, 18 years of age. Both parties testified there had been problems in the marriage for many years. In the latter part of 1978 Mr. Cancienne complained to his wife about the presence of 22-year-old Timothy Lutz (a friend of her 18-year-old daughter’s ex-boyfriend), who was a constant visitor to the Cancienne home.

On December 13, 1978, while Mr. Canci-enne was supposedly on a business trip, two of his friends watched the family home overnight from a vantage point across the street.. During the evening both testified they saw a young man drive Mrs. Cancienne and Melissa home, enter the residence, and the next morning saw the young man leave looking a bit disheveled, as if he had just gotten dressed. One of the observers, however, also testified he noticed activity in the home before the three arrived on the evening of December 13, indicating the presence of another person in the house that night.

This testimony was not contradicted by Mrs. Cancienne, who admitted that Lutz did spend that particular night at her home, that he lived in her home from then until January 4, 1979, that she loved this man and frequently hugged and kissed him in front of her children, and that they often prayed together in her bedroom.

Testimony at the custody hearing in January 5, 1979 established Mrs. Cancienne allowed Lutz to move into the Cancienne family home, to keep his clothes there, eat his meals and sleep in the family home for more than a total of two weeks. Mrs. Can-cienne admitted she spent extended periods of time with Lutz behind locked bedroom doors. She contended that during these intervals in the bedroom their time was spent in prayer.

Subsequently during trial on the merits in May of 1979, Mrs. Cancienne repeated her earlier testimony concerning Lutz’s living at the Cancienne family home and admitted that, although Lutz now lives in his own apartment, she visits with him in his apartment at least three times each week and is, on other occasions, in his company.

Reverend Marvin E. Gorman, pastor of the First Assembly of God Church which Mrs. Cancienne and Lutz attend, in response to a letter from Mr. Cancienne complaining about his wife’s activities with Lutz, stated in part in a letter to Mr. Canci-enne, dated December 15, 1978:

“This week I met with Faye and Tim and talked with them privately as well as together concerning the seriousness of the problems that have developed because [845]*845of their relationship and involvement. I told them they would have to either break off their relationship or leave the church. It is very hard for a pastor to take this kind of stand because I love people, but I cannot condone such immoral relationships.”

Properly the pastor would not disclose in testimony his conversation with Mrs. Canci-enne and Lutz; however, his letter, admitted in evidence, is suggestive that Reverend Gorman believed more than a platonic relationship existed between Lutz and Mrs. Cancienne.

It is our opinion that the trial court should have granted Mr. Cancienne a divorce on the ground of adultery. In view of the strict requirement on this court to show the manifest error which causes a determination to reverse the finding of fact of the trial judge, we should like to quote excerpts of testimony from Mrs. Cancienne, her daughters and Mr. Cancienne.

Mrs. Cancienne testified at the hearing for custody on January 5, 1979 as follows:

“Q Did Reverend Gorman tell you you would have to break off your relationship with Tim or leave the church?
A Yes. But, he told me if I came to church alone, I didn’t have to break it off. He told me as far as Tim and I coming to church together, he would have to find a better way to get there. But, if I came alone he never said he would put me out.
Q Did he tell you, and I am quoting Reverend Gorman, T cannot condone such immoral relationship’?
A Right.
Q He said that to you?
A Yes.
Q Now, Timothy Lutz, did he spend the night at your house on Monday, December 4th, 1978, when your husband was away on business for Kaiser?
A Um — that was the first time, yes.
Q Did you tell your husband that Timothy Lutz spent the night there?
A No.
Q Were the two girls in the house?
A Yes.
Q Were they in the house all night?
A Yes.
Q Was Timothy Lutz there all night?
A Yes. He was locked in my bedroom.
* * * * * *
Q Since the papers were served, which was I think December 15th, the day after that, approximately how many nights did Tim spend in the house with you and the child?

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Related

Roberts v. Roberts
519 So. 2d 229 (Louisiana Court of Appeal, 1988)
Weaver v. Weaver
438 So. 2d 1149 (Louisiana Court of Appeal, 1983)
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Ohman v. Ohman
405 So. 2d 883 (Louisiana Court of Appeal, 1981)
Cancienne v. Ziegler
392 So. 2d 668 (Supreme Court of Louisiana, 1980)

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Bluebook (online)
384 So. 2d 843, 1980 La. App. LEXIS 4012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cancienne-v-ziegler-lactapp-1980.