Leckie v. Leckie

415 So. 2d 268, 1982 La. App. LEXIS 7100
CourtLouisiana Court of Appeal
DecidedApril 5, 1982
DocketNo. 14819
StatusPublished

This text of 415 So. 2d 268 (Leckie v. Leckie) 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
Leckie v. Leckie, 415 So. 2d 268, 1982 La. App. LEXIS 7100 (La. Ct. App. 1982).

Opinion

JASPER E. JONES, Judge.

In this case Marie Leckie appeals from a judgment granting her husband, Henry Leckie, a divorce and custody of their youngest daughter, Carla, who was five at the time of the trial. Appellant contests only the award of custody. We affirm.

The parties separated in March, 1980 when the wife left the matrimonial domicile of seven years located at Louisiana State Penitentiary at Angola, Louisiana. The husband obtained physical custody of Carla about two weeks after the separation and retained it until the wife clandestinely removed the child from kindergarten in October, 1980 and simultaneously filed a suit for separation and with it obtained a temporary custody order giving her custody of Carla.

Henry Leckie is employed at the Louisiana State Penitentiary as a truck driver in the agricultural portion of the prison activities and is required to make trips around the state. Henry is home every night, though occasionally he does not get home until late when he is required to make trips to distant areas.

[270]*270Henry resides in a house located on the prison grounds. Pamela Leckie, Henry’s older daughter who is also employed at the prison, lives nearby and testified she would move back in with her father and assist him in caring for Carla. Pamela had assisted her father in caring for Carla between March and October when he had the physical custody of the child. Henry testified he had contacted prospective sitters to care for Carla when neither he nor Pamela is available.

When Carla was with her father she often slept with him or her half sister, Pamela. However, there is not the slightest indication of any sexual impropriety.

Marie Leckie was unemployed at the time of trial and had no income of her own. She resided near Columbia in Caldwell Parish where she lived in a house trailer with William White. Marie is supported by White. This living arrangement had existed for at least six months at the time of the trial in June of 1981. Marie testified that she and White were planning to marry.

White is employed as a pilot on the Mississippi River. His work causes him to be away from home much of the time. Marie admitted that White, who did not testify, has a drinking problem. She testified he drank almost every day and that she had seen him consume as much as a fifth in one day.

When Marie left Angola she took Carla with her and Henry came to Caldwell Parish to retrieve the child. Marie testified at that time Henry menaced her with a .357 magnum pistol and threatened to kill Carla and himself if she commenced proceedings to gain custody of the child. Henry admitted that he had a pistol in his car when he got Carla but said that was a very common practice among prison employees. He denied menacing Marie or making any threats.

Approximately six months later Marie got Carla back by going to Angola and removing her from school without her father’s knowledge.

After getting Carla, Marie returned to Caldwell Parish and filed an action for separation and permanent custody of Carla. She obtained an order granting her temporary custody. Henry answered and reconvened for a divorce on grounds of adultery and custody of Carla. After a trial on the merits the district judge rendered judgment in favor of Henry granting the divorce and awarding him custody of Carla. Marie then took this appeal.

Marie urges three assignments of error: (1) that the trial court erred in finding the environment she provided was detrimental, (2) that the trial court erred in using its award of custody to punish her for her relationship with White, and (3) that the trial court erred in failing to consider the environment offered by appellee in making the award of custody.

We shall begin by considering assignments one and three together since they both address the trial court’s determination that it was in Carla’s best interest to be in the custody of her father.

The basic principle involved in custody cases is that the award is to be made in accord with the best interests of the child. LSA-C.C. art. 157; Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Cleeton v. Cleeton, 383 So.2d 1231 (La.1980).

In our review of a custody award we are guided by the principles that the trial judge is in the best position to determine the best interests of the child, that his determinations must be given great weight and that they may not be disturbed in the absence of clear abuse. Traylor v. Traylor, 388 So.2d 70 (La.App. 1st Cir. 1980); Fulco, supra; Monsour v. Monsour, 347 So.2d 203 (La.1977); Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979).

This case is typical of many custody cases in that the trial judge was presented with two parents who both love their child and would try to care for her. Here neither parent could provide an ideal environment and the trial judge was left to choose between two imperfect alternatives, the one that would be in Carla’s best interest.

[271]*271The primary flaw in the environment provided by Henry is that since he works he will have to rely on Carla’s sister, Pamela, and hire sitters for assistance in caring for the child while he works. We note that this problem would not be present if Marie had been awarded custody since she is not employed outside the home.

Appellant contends that Henry’s action of permitting Carla to sleep with him is detrimental to her in that it may tend to foster an unnatural dependency. Carla is required to sleep in her own bed when she is with her mother. Henry testified that he would encourage Carla to sleep in her own bed in the future.

Appellant’s contention that Henry’s motive in seeking custody is to ensure that he can retain the house, rather than being required to move to the batchelor quarters at the Penitentiary, is not supported by the evidence. Henry freely acknowledged that he would lose the house if he were not awarded custody, but there is no other evidence supporting appellant’s contention. The trial judge obviously did not give credence to this contention and we see no error in his failure to do so.

There are two serious flaws in the environment provided by Marie. First is the nature of her relationship with White. Marie and White live together in open concubinage. Her relationship with White provided Henry with the grounds to obtain a divorce on grounds of adultery. Marie is dependent on and is supported by White.

Appellant contends that her relationship with White, because of his frequent absence, is much like the one considered by this court in Manley v. Manley, 389 So.2d 454 (La.App. 2d Cir. 1980), and not detrimental to young Carla. We disagree.

In Manley this court reviewed a judgment which changed custody of a three and one-half year old girl from her mother to her father. The district court changed custody because of the mother’s relationship with a suitor. Though the suitor was a frequent visitor in the mother’s home, they were not living together and their relationship was not shown to be adulterous.

The facts of this case are in stark contrast to Manley. Marie is admittedly living with White and their relationship has been proven to be adulterous. The fact that White’s work requires him to be away does not purge the nature of the relationship. White is far more than the steady boyfriend involved in Manley. We find Manley inap-posite.

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Related

Cleeton v. Cleeton
383 So. 2d 1231 (Supreme Court of Louisiana, 1980)
McCurdy v. McCurdy
369 So. 2d 1216 (Louisiana Court of Appeal, 1979)
Traylor v. Traylor
388 So. 2d 70 (Louisiana Court of Appeal, 1980)
Manley v. Manley
389 So. 2d 454 (Louisiana Court of Appeal, 1980)
Monsour v. Monsour
347 So. 2d 203 (Supreme Court of Louisiana, 1977)
Fulco v. Fulco
254 So. 2d 603 (Supreme Court of Louisiana, 1971)
Beck v. Beck
341 So. 2d 580 (Louisiana Court of Appeal, 1977)
Schexnayder v. Schexnayder
371 So. 2d 769 (Supreme Court of Louisiana, 1979)
Davis v. Willis
124 So. 129 (Supreme Court of Louisiana, 1929)
Bonner v. Bonner
408 So. 2d 995 (Louisiana Court of Appeal, 1981)

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Bluebook (online)
415 So. 2d 268, 1982 La. App. LEXIS 7100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leckie-v-leckie-lactapp-1982.