Lunsford v. Lunsford

545 So. 2d 1279, 1989 WL 63864
CourtLouisiana Court of Appeal
DecidedJune 14, 1989
Docket20570-CA
StatusPublished
Cited by5 cases

This text of 545 So. 2d 1279 (Lunsford v. Lunsford) 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
Lunsford v. Lunsford, 545 So. 2d 1279, 1989 WL 63864 (La. Ct. App. 1989).

Opinion

545 So.2d 1279 (1989)

Sally Ann Layman LUNSFORD, Plaintiff-Appellant,
v.
Glenn Travler LUNSFORD, Defendant-Appellee.

No. 20570-CA.

Court of Appeal of Louisiana, Second Circuit.

June 14, 1989.

Edna L. Caruso, P.S., West Palm Beach, Fla., Love, Rigby, Dehan, Love & McDaniel by Hani E. Dehan, Shreveport, for appellant.

Ronald J. Miciotto, Shreveport, for appellee.

Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.

MARVIN, Judge.

In this post-divorce action brought by the father to change a considered decree of joint custody, the mother appeals the judgment awarding sole custody to the father.

The mother contends the father did not prove, as he must under Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), that the changes in the parents' circumstances after the joint custody decree materially affected the welfare of the children.

We reverse, finding on review that the evidence was not legally sufficient to warrant the change to sole custody.

FACTS

In 1986, each spouse sought a legal separation and sole custody of three children who were then ages nine, six and two. When the custody rule was heard in May 1986, the father, an Air Force pilot stationed at Barksdale Air Force Base in Bossier City, was often on flight duty away from home for extended periods of time. He then planned to hire someone to care for the children in his absence, contending *1280 it would not be in the children's best interest to live with their mother because her fundamentalist religious beliefs and her relationship with a female friend were "confusing" to the children.

In its reasons for judgment dated July 25, 1986, the trial court stated:

The psychologist appointed by the Court to examine the parties recommended in their (sic) report that the domiciliary parent be the mother with liberal visitation to the father. The Court would agree with one conclusion drawn by the psychologist, and that is that both parties basically desire the best interest of the children [to] be fulfilled, both having interest and concern for the children.
[A]lthough the mother's religious beliefs may be fundamental, that in itself is not sufficient under the law to establish that it is in the best interest of the children to reside with the father.... Although the husband indicated that the children were confused because of these fundamentalist beliefs, the Court is more impressed with the children's confusion being based on the mother and father's separation itself. The court-appointed psychologist did indicate that although there was evidence of confusion and pressure as a result of this home breakup, the children were doing fine under the circumstances.
The husband's plan although well-intended is unrealistic. The supplanting of the mother under these circumstances with a "Nanny" to take care of the children when he might be absent for extended periods of time would not be in the children's best interest.

Addressing the evidence that the mother's female friend was in the mother's home daily, doing family and household chores, and often spent the night there, sleeping in the same bed with the mother, the court found:

[S]uch activity over a protracted period of time would lead to confusion in the children's minds. The constant daily attendance of the friend in the household doing family and household chores also tends to lend itself to confusion and subsequent over-dependence of the mother on this individual for the household activities. The Court finds that such overnight activity will not be allowed while the children are in the household. The Court feels strongly that it will be in the best interest of the children that the friendship be regulated on a more normal non-daily basis. That the assistance which the friend has been tendering is to be tempered so that the household be dependent upon itself and not on an outside source. Social activities and visits will of course be considered a normal and proper activity. (Our emphasis.)

In a January 13, 1987, judgment, the court awarded joint custody, named the mother as the domiciliary parent, and granted the father custody every other weekend, one night per week, six weeks in the summer, and on alternating holidays. Neither party appealed.

At the father's request in his petition for divorce, joint custody was continued in an April 1987 divorce judgment. Shortly after the divorce, the father remarried. He and his second wife moved from Louisiana to Virginia in September 1987, when he was assigned to duty at the Pentagon.

In November 1987, the father petitioned for sole custody, alleging that his circumstances had changed because he had remarried and had regular work hours with no flight duty. He also alleged that the mother's female friend disciplined the children on a regular basis and continued to have daily contact with them in violation of the court's order.

At the custody hearing on May 6, 1988, the father testified that he is not on call as a pilot but works at the Pentagon from 8:00 a.m. to 5:00 p.m. Monday through Friday, and can routinely spend time with his children. He expects to be stationed in Washington, D.C. for at least three more years. He described "excellent" schools and cultural opportunities for the children in the area. He lives in a four-bedroom rental home with his wife and her five-year-old son by a previous marriage. His wife works full time managing a dentist's office. She testified she would reduce her *1281 work hours during the school year and stop working during the summer if her

stepchildren lived with their father. The father's children were shown to have a good relationship with their stepmother and stepbrother.

The mother lives in a three-bedroom apartment in Shreveport and works full time at a local bank. She was not working at the time of the previous custody hearing. She takes the three-year-old child, Sandy, to a day care center before she goes to work at 8:00 a.m. Eight-year-old David and 11-year-old Laura ride the school bus to school in the morning and to the day care center after school ends at 3:00 p.m. Each day, except Friday, the mother obtains the children at the day care center after she leaves work at 4:30 p.m. The center closes at 6:00 p.m. Because the mother is required to work until 6:00 p.m. on Friday, she has someone else, usually a babysitter, pick up the children shortly before 6:00 and stay with them until she gets home from work at about 6:15.

The mother described her relationship with her friend Mary:

My relationship to her is that she would be considered right now my best friend but she is just a friend. She has been a very big blessing to me because I needed help when I first was going through this [the divorce]. But in that I feel it is fair to state that our relationship was quite a daily help type of thing when this first started. It is not that way right now.

The mother admitted that Mary had bought groceries for her five times in the past year and occasionally washed a load of laundry for her at Mary's house because the mother does not have a washing machine or dryer in the apartment. The mother testified that she does all other household chores herself, including washing clothes and dishes, ironing, and making lunches for the children.

Mary stayed in the mother's apartment overnight on January 23, 1988, when the children spent the night with their father while he was in Shreveport for a visit.

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Bluebook (online)
545 So. 2d 1279, 1989 WL 63864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lunsford-v-lunsford-lactapp-1989.