Hilderbrand v. Hilderbrand

391 So. 2d 577
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1981
Docket11628
StatusPublished
Cited by7 cases

This text of 391 So. 2d 577 (Hilderbrand v. Hilderbrand) 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
Hilderbrand v. Hilderbrand, 391 So. 2d 577 (La. Ct. App. 1981).

Opinion

391 So.2d 577 (1980)

Patricia H. HILDERBRAND
v.
William C. HILDERBRAND.

No. 11628.

Court of Appeal of Louisiana, Fourth Circuit.

November 12, 1980.
Rehearing Denied December 19, 1980.
Writ Refused February 6, 1981.

Reed & Reed, Bruce G. Reed, J. D., New Orleans, for plaintiff-appellee.

Dunn & Rasch, Ltd., J. Morris Dunn, III, Metairie, for defendant-appellant.

*578 Before REDMANN, GULOTTA and BARRY, JJ.

BARRY, Judge.

This matter involves an initial custody determination of three minor children born during the marriage of Patricia and William Hilderbrand.[1]

The uncontested facts show the parties were married in 1965 and began living apart in May, 1976. Following the separation the children lived with their mother until May, 1978, after which the father had custody until January, 1980. From then until trial one month later the mother had custody.

In March, 1977 Mrs. Hilderbrand filed for a legal separation alleging cruel treatment and she requested custody. The husband answered with a general denial and reconvened charging his wife with adultery and he also sought custody of the children. The wife responded to the reconvention with a general denial and supplemented her original petition by stating that the parties had lived separate for more than one year and she prayed for a divorce. A divorce was granted based upon their living separate for more than one year, but alimony was denied to the wife because she was found at fault. The lower court awarded custody to the mother subject to reasonable visitation by their father.

The father appeals the custody judgment alleging that his former wife is unfit because of an extended and open adulterous relationship. The wife answered the appeal urging that there was no abuse of discretion by the trial court.

Mr. Hilderbrand is a Commander in the Navy and his work requires that he travel to various military installations. After the Hilderbrands separated, and following an extended overseas assignment, Mr. Hilderbrand returned home for a ten day visit during October, 1977. The children stayed with him and his wife temporarily moved in with a neighbor. It was at this time that Mr. Hilderbrand was told by his children that his wife was having an afair with a man named Philip Clesi. Before returning overseas he questioned his wife about this information; specifically, he confronted her with the allegation that Clesi had spent the night in their family home and that she and their children stayed overnight at the Clesi residence. She denied the allegation. Mr. Hilderbrand testified he admonished his wife about these accusations but did not have the opportunity to resolve the situation because he had to return to active duty.

In January, 1978 Mrs. Hilderbrand and her children moved from the family home to an apartment. In April, 1978 Mr. Hilderbrand returned to New Orleans and the children went home for visitation with him. He found that the relationship with Clesi had continued during his absence, but his wife again denied the illicit affair. His reaction was to insist that the children live with him. A few days later the May 3rd flood occurred causing extensive damage to Mrs. Hilderbrand's apartment. Almost simultaneously, she encountered problems at her job which she quit and apparently the aggregate of circumstances resulted in an emotional breakdown requiring hospitalization. Around June 15, 1978 Mr. Hilderbrand took the three children with him to live at his new duty station outside of the nation's capital in Virginia.

Mr. Hilderbrand rented a five bedroom home in a residential suburb of Washington and employed a full-time housekeeper to live on the premises. Pictures of the home in evidence show it to be commodious and attractive. The children attended school three blocks from home and they participated in student activities and attended social functions and church. The housekeeper prepared meals, performed domestic chores, and took care of the children. The father went to work early on weekdays and returned each evening in time to have dinner with the children. Weekends were spent together doing a variety of things, such as going to movies and local attractions, plus brief out-of-town trips.

*579 During the father's custody he voluntarily paid for long distance calls between the children and their mother. He also provided money for an airline ticket to allow Mrs. Hilderbrand to visit the children. Further, the mother was permitted to use his gasoline credit card when she drove to Washington for visitation.

In January, 1980, while Mr. Hilderbrand was out of the country, his wife went to Washington and without his knowledge or approval took the children back to New Orleans to live with her. Immediately upon his return Mr. Hilderbrand filed a writ of habeas corpus which resulted in the custody hearing now before us on appeal.

At trial Mrs. Hilderbrand finally admitted that she became involved in an adulterous relationship with Clesi in 1976. She testified that she allowed her paramour to sleep in the family home five or six times while the children were present in a separate bedroom of the house. She further admitted that the children saw her in bed with Clesi on more than one occasion, but denied there was any sexual activity committed in their presence. She further testified that her oldest daughter served breakfast in bed to her and Clesi, and the three children would join them in bed to read the newspaper. These activities occurred between May, 1976 and May, 1978 at which time Clesi was legally separated but not divorced.

During the nineteen months the children lived with their father Mrs. Hilderbrand changed employment several times seeking to improve her position as a nutritionist. She traveled to Michigan and then to Baltimore where she had an opportunity to visit the children. When she returned to New Orleans she stated that she was having financial difficulty and received assistance from Clesi. Their adulterous relationship became full blown when they began living together openly. Mrs. Hilderbrand even testified that people in the neighborhood knew that they were living together, an admission that would have been difficult to prove except for her candid admission.

Each parent was complimentary of the other's ability and desire to take care of the children. Mr. Hilderbrand earns approximately $31,000.00 per year and Mrs. Hilderbrand's income amounts to about $15,000.00 per year.

In order to determine which parent is best fit to have custody under these facts, two questions should be considered:

Should the father's military career and its required travel cause him to be unfit or less fit than the mother?
Has the mother's adulterous relationship rendered her unfit for custody or less fit than the father?

Mr. Hilderbrand testified that after sixteen years of military service his obligation for travel now amounts to five trips a year which vary from overnight to about a week in duration, one trip requiring about three weeks. As a member of the military his base is subject to change, but he stated that future locations would allow him to take his children. The testimony shows that Mr. Hilderbrand is capable of providing good care of his children and during his brief absences they are properly cared for. A neighbor of Mr. Hilderbrand's in Virginia testified that his housekeeper was her friend, they visited each other's homes, and that her nine year old daughter often played with the Hilderbrand children. She substantiated the quality of the living conditions and verified Mr.

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391 So. 2d 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilderbrand-v-hilderbrand-lactapp-1981.