Johnson v. Johnson

590 So. 2d 1325, 1991 La. App. LEXIS 3239, 1991 WL 255276
Louisiana Court of Appeal·Decided November 22, 1991·No. No. CA 91 0724·Published·Cited by 3 cases

Opinion

COVINGTON, Chief Judge.

The mother of a minor child appeals the judgment of the family court which sustained a peremptory exception raising the objection of no cause of action, and which dismissed the mother’s rule seeking a change of custody, or in the alternative, modification of the visitation scheme and for contempt of court. Because we find that the mother stated a cause of action under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), we reverse the judgment sustaining the exception and remand the matter for further proceedings.

The parties herein were married on July 8, 1985, in the state of Texas, and thereafter established their matrimonial domicile in Baton Rouge, Louisiana. One child, Justin Daniel Johnson, was born of the marriage on July 27,1986. Mr. Johnson filed a petition for separation on February 9,1987, to which Mrs. Johnson reconvened; the contested hearing on the matter, including custody, was held on three separate days and the court took the case under advisement. There is no transcript of the hearing in the record. A minute entry dated December 3, 1987, contained the following:

This matter having been submitted and taken under advisement, the Court this day rendered judgment granting a separation from bed and board, making a specific finding of mutual fault.
The Court believes both parties love the child and are very capable of caring for him; however, the Court also believes the[s]e parties cannot effectively communicate and under the jurisprudence an award of joint custody would be inappropriate and not in the best interests of the child. Therefore, the Court is faced with the difficult task of choosing one to be the custodial parent. The care, custody, and control of the minor child was awarded to the father with liberal visitation for the mother. The parties are to agree upon a visitation schedule by December 30,1987. If the parties can not agree, the Court, upon notice, will develop a visitation schedule.

A written judgment of separation was filed into the record on February 4, 1988, in which custody of the child was granted to the father, and liberal visitation of every other week was granted to the mother. Thereafter, a judgment of divorce was entered on March 1, 1988, based on the parties having lived separate and apart in excess of one year, which continued the custody and visitation provisions of the judgment of separation.

On February 14, 1990, the mother filed the rule herein, seeking the change of custody, alleging that Mr. Johnson had surreptitiously left the state with Justin, without notice to her, shortly before she was to exercise her week of visitation, and had refused to allow Justin to visit her since leaving the state. The allegations of the rule on this issue were as follows:

On motion of Karen Lampton1, formerly known as Karen Johnson, through her undersigned attorney, and on suggesting to the Court:
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16.
That without obtaining permission from this Court, without in anyway [sic] first seeking a modification of the visitation judgment rendered by this Court, and without any prior notice to Mover, Danny Johnson quit his job in Baton Rouge, Louisiana and moved to Tupelo, Mississippi.
17.
That Mover’s most recent weekly visitation period was to commence at 6:00 P.M. on Thursday, February 1, 1990.
18.
That on Wednesday, January 31, 1990, Mover telephoned Danny Johnson’s home in Baton Rouge and to her surprise was informed by the operator his telephone number was no longer in service.
[1327]*132719.
That Mover then on the same day telephoned Danny Johnson’s place of employment in Baton Rouge and to her even greater surprise was informed he had quit his job.
20.
That upon further investigation Mover learned Danny Johnson had moved to Tupelo, Mississippi and had taken Justin with him.
21.
That Tupelo, Mississippi is approximately five to six hours by automobile from Baton Rouge, Louisiana, or approximately ten to twelve hours by automobile round trip.
22.
That Mover at the time was pregnant and was expecting to give birth in the immediate future. (Mover’s son Douglas was born February 12, 1990.)
23.
That because of her pregnancy, Mover was physically unable to go to Tupelo, Mississippi to pick up Justin and she so informed Danny Johnson.
24.
That on February 2, 1990, Mover’s father, Charles Keith, who is the maternal grandfather of Justin, left his home in Texas and went to Danny Johnson’s home in Tupelo, Mississippi to pick up Justin for Mover so that Mover would have her scheduled visitation for that week.
25.
That Danny Johnson refused to allow Justin to go with Mover’s father.
26.
That Danny Johnson stated he has custody of Justin; that as custodian of Justin he has control over who will pick Justin up at the beginning of Mover’s visitation periods; and that he will allow only Mover, and no one else, to pick up Justin.
27.
That because of the distance between Baton Rouge, Louisiana and Tupelo, Mississippi and because of Mover’s pregnancy, this action by Danny Johnson effectively deprived Mover of her visitation rights provided for in the aforesaid judgment.
28.
That on February 14, 1990 Mover contacted Danny Johnson, reminded him that in accordance with the judgment of this Court her next scheduled visitation period begins on February 15, 1990, and informed him she was personally coming to Mississippi on February 15, 1990 to pick up Justin for her scheduled visitation period.
29.
That Danny Johnson informed Mover he would not permit Mover to pick up Justin for her visitation period commencing February 15, 1990 as fixed and defined by the aforesaid judgment of this Court.
30.
That Danny Johnson also informed Mover he would not in the future permit Mover to pick up Justin for her visitation periods as fixed and defined by the aforesaid judgment of this Court.

Additionally, appellant alleged that Mr. Johnson has been uncooperative with her in her efforts to have a good relationship with Justin, that he makes unfavorable remarks about her in the child’s presence, and that he permits his family members to do the same. She further stated that she and her new husband both wish to provide a two-parent home for Justin, along with his newborn half-brother and 10-year-old step-sister, the daughter of her husband. Finally, Mrs. Lampton requested sole custody of Justin, or alternatively a change in visita[1328]

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Johnson v. Johnson, 590 So. 2d 1325, 1991 La. App. LEXIS 3239, 1991 WL 255276 (La. Ct. App. 1991).

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