Lundin v. Lundin

563 So. 2d 1273, 1990 WL 88927
CourtLouisiana Court of Appeal
DecidedJune 26, 1990
Docket90 CA 0087
StatusPublished
Cited by4 cases

This text of 563 So. 2d 1273 (Lundin v. Lundin) 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
Lundin v. Lundin, 563 So. 2d 1273, 1990 WL 88927 (La. Ct. App. 1990).

Opinion

563 So.2d 1273 (1990)

Francis Walter LUNDIN
v.
Gabrielle Howell LUNDIN.

No. 90 CA 0087.

Court of Appeal of Louisiana, First Circuit.

June 26, 1990.

R. Loren Kleinpeter, Baton Rouge, for plaintiff-appellant Francis W. Lundin.

Glenn R. Ducote and Charles Yeager, Baton Rouge, for defendant-appellee Gabrielle H. Lundin.

Before LOTTINGER, CRAIN and DOHERTY, JJ.

CRAIN, Judge.

The Lundins were married on July 26, 1980, and are residents of the Parish of East Baton Rouge. Mrs. Lundin vacated the family home on February 28, 1987. Thereafter, Mr. Lundin filed a petition for separation which was subsequently amended to a petition for divorce. At trial, both parties sought sole custody of Sean, a minor child born of marriage, who was approximately two years old at the time of trial.

A divorce was granted on the grounds of the adultery of both parties. Sole custody of the child was granted to Mrs. Lundin with visitation rights to Mr. Lundin.

From this judgment Mr. Lundin appeals. The sole assignment of error is that the trial court erred in granting sole custody of the child to Mrs. Lundin.

In written reasons for judgment the trial court found that although both parties love and can adequately care for the child, Mr. Lundin's actions and language regarding Mrs. Lundin in the presence of Sean was a bar to effective communication between the parties. The trial court further found that the testimony of both expert witnesses indicated it was in the best interests of the child that Sean be placed in the custody of his mother.

The best interest of the minor child is the paramount consideration where the custody of the minor child is claimed by both husband and wife. La.C.C. arts. 157 and 146(A). The award of joint custody is preferred where such an award is in the best interest of the child. La.C.C. art. 146(A). There is a rebuttable presumption that *1274 joint custody is in the best interest of the child. La.C.C. art. 146(C). Among the factors to be considered pursuant to La. C.C. art. 146(C)(2) in determining whether joint custody is in the best interest of the child are:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f)The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) The distance between the respective residences of the parties.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. However, the classification of persons according to race is neither relevant nor permissible.

For approximately one year prior to their separation the Lundins were friends with Deborah Fuller and Katherine Cagnon, who lived nearby. At the time the friendship commenced Ms. Fuller and Ms. Cagnon lived together and were involved in an eight year lesbian relationship. On February 17, 1987, Mrs. Lundin told her husband that she was in love with Debbie Fuller and that she intended to leave Mr. Lundin in order to pursue her relationship with Ms. Fuller. She further told him that she would not hide her relationship with Ms. Fuller from Sean. During the trial Mrs. Lundin initially denied being sexually involved with Ms. Fuller. Subsequently, towards the end of trial, both she and Ms. Fuller took the witness stand again and confessed that they had earlier perjured themselves, allegedly on the advice of former counsel. Mrs. Lundin stated that she lied about her sexual relationship because she was afraid it would imperil her chances of obtaining custody of Sean; afraid of not being allowed to see him and afraid of criminal prosecution for homosexual acts. She stated "I was going to do whatever it took to get my son."

Mrs. Lundin moved out of the family residence on February 28, 1987, and moved with Sean into the home of Mrs. Lundin's parents. Two weeks later she and Sean moved into Ms. Fuller's three bedroom home. Ms. Cagnon occupied one bedroom, Sean another and Ms. Lundin slept with Ms. Fuller in Ms. Fuller's bed or sometimes on the den sofa. She stated that while living with Ms. Fuller she and Ms. Fuller would go into Ms. Fuller's bedroom and stay up talking but did not engage in sexual relations while Sean was in the house. She moved out of Ms. Fuller's house and returned to live with her parents on advice of counsel after Mr. Lundin initiated an action for separation. She moved into her own apartment two weeks prior to trial.

At Mr. Lundin's request he and Mrs. Lundin attended joint counseling sessions on February 27 and March 2, 1987 with Dr. Laura L'Herisson, a psychologist. Dr. L'Herisson testified that Mrs. Lundin questioned whether it would be appropriate to *1275 raise Sean in a household with an open lesbian relationship. Dr. L'Herisson responded that Mrs. Lundin's sexual orientation was not the key factor. In Dr. L'Herisson's opinion, an open lesbian relationship could be "in the child's worst interest." Dr. L'Herisson was queried:

Q. Do you recall when this discussion came up whether Mrs. Lundin made any specific statements about her intent to make this relationship open or keep it hidden?
A. She had questions regarding why it should be kept hidden, or disguised. And I had concerns about making it open; it being an open affectionate sexual relationship.
Q. Did you have an impression from the statement she made to you with the questions she had as to whether she intended this to be open or not? Can you state such an impression?
. . . .
A. But it was my understanding that it surfaced for that reason, and that her belief was that as long as it was a loving relationship that it would be all right for the child. My opinion was that it need to be more clandestine and undercover for the sake of the child. So we were in disagreement. I mean, it was not an adamant disagreement. I was there as a source of information.
Q. Correct me if I am wrong, but as I understand the statement you made in response to a few questions back, the relationship itself did not necessarily bother you so long as it was kept from open exposure to the child, would that be correct?
A. That was a much bigger concern, yes.
Q. Is that still a concern to you in a situation such as this?
A. Yes, that would always be a concern.
Q.

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Bluebook (online)
563 So. 2d 1273, 1990 WL 88927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lundin-v-lundin-lactapp-1990.