Gordy v. Langner

502 So. 2d 583
CourtLouisiana Court of Appeal
DecidedFebruary 4, 1987
Docket86-188
StatusPublished
Cited by25 cases

This text of 502 So. 2d 583 (Gordy v. Langner) 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
Gordy v. Langner, 502 So. 2d 583 (La. Ct. App. 1987).

Opinion

502 So.2d 583 (1987)

John Collins GORDY, Plaintiff-Appellee,
v.
Laura LANGNER, Defendant-Appellant.

No. 86-188.

Court of Appeal of Louisiana, Third Circuit.

February 4, 1987.
Writ Denied March 26, 1987.

*584 Marx and Marx, G. Paul Marx, Lafayette, for defendant-appellant.

Burke, Cestia, Landry and Lee, Ralph K. Lee, Jr., New Iberia, for plaintiff-appellee.

Before DOUCET, LABORDE and KING, JJ.

KING, Judge.

The issue presented by this appeal is whether or not the trial court erred in awarding legal custody of a minor child to the child's maternal grandparents, rather than to the child's natural mother.

Laura Gordy Langner (hereinafter defendant) filed a rule for change of custody against her parents, John Collins Gordy and Beatrice Gordy (hereinafter the Gordys), ordering them to show cause why she should not be granted sole legal custody of her son and the Gordys' grandson, Richard Benjamin Langner (hereinafter the child), and why the Gordys should not be held in contempt for interfering with her visitation *585 privileges previously granted by the court. A hearing was held and the district court rendered judgment maintaining custody of the child with the Gordys. The court granted visitation privileges to defendant extending from 10:00 A.M. to 6:00 P.M. on the first and third Sundays of each month. The court also denied defendant's rule for custody and contempt against the Gordys. From this judgment, defendant has appealed. We affirm.

FACTS

Defendant was married and was subsequently granted a divorce on August 12, 1980 from her husband, Richard Alfred Langner. The child, Richard Benjamin Langner, was born of this marriage on October 4, 1978. In the divorce decree, defendant was granted legal custody of the child and she and the child moved in to live with her parents, the Gordys.

In 1982, an incident occurred in which John Gordy found the defendant in bed with a man upstairs in his home while the child was downstairs. The Gordys physically evicted defendant from their home but kept physical custody of the child. The Gordys filed a petition for legal custody of the child. Defendant filed a written answer in proper person and in her answer judicially consented to surrender and abandon legal custody of the child to the Gordys. On June 4, 1982, the court awarded legal custody of the child to the Gordys. This judgment was not appealed.

Soon after the Gordys were awarded legal custody, they took the child to Virginia and placed him under the care of a child psychologist, Dr. Edwin N. Carter. Dr. Carter recommended that the child remain in Virginia in the physical custody of his aunt, Bonnie Neder, another of the Gordys' daughters, and her husband, Donald Neder (hereinafter the Neders). The child resided in Virginia with the Neders for approximately a year, and remained in their physical custody when they returned to Louisiana and moved next door to the Gordys where the Neders and the child now still live.

Defendant filed a rule for change of custody on September 9, 1982. This rule was not heard until August 16, 1983 and at that time judgment was rendered, which was signed on September 13, 1983, maintaining legal custody of the child with the Gordys and granting defendant certain visitation privileges. This judgment also was not appealed. On October 13, 1983, defendant filed a rule for contempt against the Gordys for their refusal to allow her to fully exercise her visitation privileges. After a hearing of this rule on December 14, 1983 the court denied her rule for contempt and amended the visitation granted defendant in the September 13,1983 judgment on rule to establish new visitation privileges for defendant and placed certain conduct requirements on the defendant during such visitation. These requirements included that the child attend church services during any visitation with defendant which included a Sunday; that the child be in bed at an appropriate time during overnight visitation; that defendant would not curse or show undue physical affection to members of the opposite sex in the presence of the child during visitation, and that there would be no overnight male guest during visitation.

On September 27, 1985, John Gordy filed a petition to terminate or limit defendant's visitation privileges, claiming that defendant had not exercised visitation in accordance with the court's previous requirements of the December 14, 1983 judgment. In response, defendant then filed a rule against the Gordys seeking sole legal custody of the child and for contempt against the Gordys for not permitting defendant to exercise her scheduled visitation. The two rules were heard on November 13, 1985.

At the hearing on November 13, 1985 several witnesses testified that defendant had not complied with the previous requirements set by the court for visitation with the child. Dr. Kenneth Bouillion, who had been the child's treating psychologist in Louisiana for over two years at the time of trial testified that the child told him that when he stayed with his mother he did not *586 go to church on Sunday, that a male had been with her overnight, and that she cursed in front of him. The defendant admitted that she had been living with a man for about five years. She married her paramour on November 10, 1985, which was three days prior to the hearing.

The trial court rendered judgment after the hearing in favor of the Gordys and against the defendant. A written judgment was signed on November 19, 1985, maintaining legal custody of the child with the Gordys and granting visitation privileges to the defendant from 10:00 A.M. until 6:00 P.M. on the first and third Sundays of each month. The court also denied the rule for custody and contempt filed by the defendant against the Gordys.

Defendant timely appeals from this judgment, asserting the following assignments of error:

(1) The district court erred in requiring defendant to prove her fitness beyond any applicable legal standard;
(2) The trial court erred in permitting testimony about the defendant's childhood in connection with her fitness to regain custody;
(3) The trial court erred in maintaining legal custody in the grandparents who gave the physical custody of the child to others;
(4) The trial court erred in refusing to order steps recommended to reunite defendant and the child;
(5) The trial court erred in reaching a ruling before all of the evidence had been presented;
(6) The trial court erred in refusing to hold the Gordys in contempt for denial of scheduled visitation without court orders;
(7) The trial court erred in refusing to return legal custody of the child to its natural mother; and
(8) The trial court erred in restricting defendant's visitation with the child.

ASSIGNMENT OF ERROR NUMBER 1

Defendant first argues that the trial court erred in requiring her to prove her fitness beyond any applicable legal standard in order to recover the child. Defendant contends that the proper rule of law is recited in Berzins v. Betts, 457 So.2d 282 (La.App. 3 Cir.1984), as follows:

"[P]arent's right to custody must be upheld unless it is established by convincing proof that he or she is unfit or has forfeited these parental rights ..." Berzins v. Betts, supra, at page 285.

Defendant relies on the former jurisprudential rule established by Wood v. Beard,

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Bluebook (online)
502 So. 2d 583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordy-v-langner-lactapp-1987.