Germany v. Germany

599 So. 2d 350, 1992 WL 82155
CourtLouisiana Court of Appeal
DecidedApril 10, 1992
Docket91 CA 1719
StatusPublished
Cited by9 cases

This text of 599 So. 2d 350 (Germany v. Germany) 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
Germany v. Germany, 599 So. 2d 350, 1992 WL 82155 (La. Ct. App. 1992).

Opinion

599 So.2d 350 (1992)

Deborah W. GERMANY
v.
Charles E. GERMANY.

No. 91 CA 1719.

Court of Appeal of Louisiana, First Circuit.

April 10, 1992.

Scott M. Perrilloux, Hammond, for plaintiff.

Lila T. Hogan, Hammond, for defendant.

Before SHORTESS, LANIER and CRAIN, JJ.

SHORTESS, Judge.

The Germanys were married on November 27, 1984, and established their domicile in Tangipahoa Parish, Louisiana. One child, who was four years old at the time of *351 the hearing pertinent in this appeal, was born to the marriage.

The parties legally separated, and a joint custody plan was agreed to which designated Deborah West Germany (plaintiff) as domiciliary parent, subject to Charles E. Germany's (defendant) visitation rights.

Defendant then lost one rule to change custody. He filed another on October 17, 1989, and obtained an ex parte order granting him temporary sole custody. After a hearing,[1] the trial court changed custody and ordered a joint custody plan which designated defendant the domiciliary parent, subject to visitation by plaintiff "restricted and limited under circumstances that would protect" the child's safety. Plaintiff has appealed the custody judgment.

Defendant then moved to have plaintiff pay him a percentage of the child's medical and dental expenses and child support. The parties submitted the child support issue on a stipulation of facts and financial statements, and the trial court rendered judgment decreeing that plaintiff shall not pay child support to defendant. Defendant has appealed that ruling.[2]

CUSTODY:

Charles William Germany (William), born February 1, 1985, lived with his mother (plaintiff) and Bruce Chapman, his stepfather, in Mobile, Alabama. On October 19, 1989, Chapman administered a "spanking" to William's bare buttocks after plaintiff's mother, Ledora West, reported that William had misbehaved by screaming and yelling while she had him. Chapman admitted taking William to the bedroom where he put William across his knees, pulled down his pants, and gave him five "licks on his rear end" with his hand.

The next day defendant's parents, Trudy and Peter Germany, arrived at the Chapman residence to get William for weekend visitation. It was then learned that William had abrasions on his buttocks. The Germanys immediately took William to Dr. George W. Hall, a pediatrician in Mobile.

Dr. Hall appeared by deposition and testified that William was an intermittent patient of his since birth; that William's grandparents brought William in on October 20, 1989, with complaints that the child was bruised on both buttocks; that William told him he had been spanked by his father; that his examination revealed fresh bruising and petechiae (small broken blood vessels); that he thought the cause was from a spanking with a paddle; that he considered it to be an overzealous use of a paddle on that age child; and that he reported the incident to the appropriate Alabama state authorities.

The next day, October 21, William was seen by his Hammond pediatrician, Dr. Roger Rholden, who also had treated him intermittently since birth. After examining William's backside he suspected he had been beaten within a day or so. He identified the photographs in evidence as depicting what he saw on October 21. Rholden felt the linear extensions of the abrasions suggest a type of straight object had been used like fingers or possibly a paddle, but they were not wide enough for a belt. Rholden said William told him his stepfather had done it. Rholden also considered this to be child abuse and signed an affidavit.

Plaintiff testified that she had never whipped or slapped her son and that she had never agreed Chapman could use corporeal punishment. She further testified whether William was spanked depended upon what the child had done. She denied that Chapman had a bad temper and said he did not do to William what was shown on the photographs (and she would not stay with him if he did).

Chapman testified that he spanked William with his hand after his mother-in-law said William had misbehaved; that William cried a little but apologized for his behavior; that it did not appear to hurt him; that he went back to playing; that he did not *352 use a paddle; that he did not consider it wrong or improper to spank William; and that he would continue to spank William if he felt he needed a spanking.

The remaining witnesses were defendant's father, mother, and brother-in-law. They testified about Chapman's hot temper, a prior incident in church where Chapman slapped William on the leg, and an alleged statement that he did not like children. Chapman denied all these facts when he testified.

Upon completion of the evidence, the trial court with oral reasons found William had been abused and changed custody from plaintiff to defendant. His reasons state:

I don't need any argument because I feel that the photographs and the testimony of Dr. [Rholden] and the deposition of Dr. Hall clearly prove to me that there was abuse of this child by excessive use of force and that it's tied in with such a con[n]exity to the time it's obvious that it happened at the time the child was in the custody of the mother and as a result of the spanking administered to the child by the mother's present husband. I feel it's excessive use of force. I'm concerned with the statement of the father that he didn't consider it wrong for him to spank the child. If anybody looked at those pictures, I don't see how you would come to any conclusion other than that. It is abuse. And based on that I am going to change the custody to the father and I am going to allow limited visitation by the mother under such circumstances that we can see that this doesn't happen again.

Plaintiff objected to the court's ruling and changing custody based only upon its finding of abuse and without taking additional evidence as it relates to "the best interest of the child." In regard to this argument, the trial court in its reasons for denying plaintiff's motion for new trial said:

After the January 4, 1990 hearing, this court, in an effort to stop time-consuming, unnecessary testimony being elicited by the mover told mover's attorney, Lila Tritico Hogan, to limit the evidence at the next hearing to the abuse issue. The court stated that if Charles Germany could prove the child abuse, that would be enough to warrant a change in domiciliary custody. Testimony on the mover's other allegations would be unnecessary. If mover could not prove child abuse, this court would then allow mover to present evidence on the other allegations.
At the beginning of the hearing on March 29, 1990, Charles Germany's attorney reserved Mr. Germany's right to present other non-abuse issues after the abuse hearing. No such reservation was made by Deborah Germany's attorney. After Charles Germany's abuse evidence was presented, Deborah Germany put on her evidence. At the end of that evidence, this court asked the attorney for Deborah Germany if he had anything further to present, and he said "No[."]
At that point, the case was submitted to this court which ruled that the domiciliary custody should be changed to Charles Germany based upon the proven child abuse committed on William by his [stepfather], Bruce Chapman, in the mother's presence.
It was and still is this court's opinion that the evidence of child abuse was very strong and this court could not return the child to the mother's environment.

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Cite This Page — Counsel Stack

Bluebook (online)
599 So. 2d 350, 1992 WL 82155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/germany-v-germany-lactapp-1992.