Owen v. Gallien

477 So. 2d 1240
CourtLouisiana Court of Appeal
DecidedOctober 10, 1985
Docket84-698
StatusPublished
Cited by10 cases

This text of 477 So. 2d 1240 (Owen v. Gallien) 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
Owen v. Gallien, 477 So. 2d 1240 (La. Ct. App. 1985).

Opinion

477 So.2d 1240 (1985)

Donald Lavon OWEN, Jr., Plaintiff-Appellant,
v.
Andrea Cronce Owen GALLIEN, Defendant-Appellee.

No. 84-698.

Court of Appeal of Louisiana, Third Circuit.

October 10, 1985.

*1241 Nelson, Hammons & Johnson, John L. Hammons, Shreveport, for plaintiff-appellant.

Martha A. O'Neal, Deridder, for defendant-appellee.

Before GUIDRY, LABORDE and KING, JJ.

GUIDRY, Judge.

This is a child custody case. The father, Donald Lavon Owen, Jr., appeals the judgment of the trial court which dismissed his rule for a change of custody of his two minor children.

Donald Owen and Andrea Cronce were married in DeRidder, Louisiana, on December 28, 1973. Subsequent to their marriage, the couple moved to Virginia where Donald had secured employment with a paper company. Two children were born of this marriage, Christopher Wayne and Aimee LeeAnn. In December of 1980, Andrea moved back to DeRidder with the two children. On January 16, 1981, Andrea obtained a Virginia judgment of divorce from Donald on the ground of adultery. The divorce decree granted custody of Christopher *1242 and Aimee to Andrea and ordered Donald to pay child support in the amount of $150.00 per week. Donald was granted reasonable visitation privileges. Donald returned to Louisiana in April of 1981 and has since resided in Mansfield, approximately 100 miles from DeRidder.

On April 20, 1983, Donald petitioned the district court for Beauregard Parish for a change of custody of his two children. In his petition, Donald prayed for sole custody of the children or, alternatively, joint custody. Andrea reconvened seeking an increase in child support. In her reconventional demand, she also sought to retain sole custody of the two children with a change in Donald's visitation rights, or, in the alternative, to be granted joint custody. Donald answered the reconventional demand requesting child support from Andrea in the event that he was given sole custody of the children or a modification of his child support obligation if an award of joint custody was rendered.

On May 30, 1983, Andrea married Michael Wayne Gallien and moved to Houston, Texas, with Christopher and Aimee. Donald and Andrea thereafter filed a joint motion for change of venue. The case was thereafter transferred and heard by the district court of Vernon Parish.[1]

The custody rule and defendant's reconventional demand were heard on March 1 and 5, 1984. At that time, Donald presented evidence on his case in chief. At the conclusion of this evidence, defendant moved for a directed verdict.[2] Defendant informed the court that if the motion was granted, she would abandon her rights under the reconventional demand. The trial judge thereafter granted the motion dismissing plaintiff's case and ordered that custody of the two children be maintained with their mother, subject to specific visitation privileges granted to plaintiff.

Donald appealed and sets forth the following specifications of error:

1. The trial court erred by utilizing and applying the maternal preference rule;
2. The trial court erred in granting appellee's motion to dismiss;
3. The trial court erred in refusing to allow appellant to put on evidence showing a substantial change in the parties' respective financial circumstances;
4. The trial court erred in allowing appellee to introduce a supplemental affidavit of income and expenses on the morning of trial;
5. The trial court erred in refusing to allow appellant to submit in evidence a letter written by appellee prior to her divorce from appellant; and,
6. The trial court erred in refusing to apply the legislatively mandated joint custody rules.

The most serious specifications of error concern the trial court's grant of appellee's motion for dismissal after appellant rested his case in chief, and the alleged failure of the trial court to genuinely consider an award of joint custody as the preferred custodial award.

The following is a fair summary of the evidence adduced at trial during appellant's case in chief. Andrea Gallien, on cross-examination, testified that she moved back to DeRidder with Christopher and Aimee in December of 1980. She and Donald were divorced the following month. Upon her return to DeRidder, Andrea worked at various jobs before deciding to seek a college degree at McNeese State University in Lake Charles. Andrea attended McNeese from June of 1981 until May of 1983, at which time she received a degree in Computer Science. She commuted from DeRidder to Lake Charles during this time, which was about an hour drive each way. While Andrea attended school, Aimee went to a *1243 day care center and Christopher attended school. Since both their maternal and paternal grandparents lived in DeRidder, the children also spent time with them during the time that Andrea was at school. Andrea worked part time while attending McNeese.

On May 30, 1983, Andrea married Michael Wayne Gallien. The Galliens soon after moved to Houston with Christopher and Aimee, where they now live in a comfortable three bedroom home. Andrea is employed as a computer programmer with Texaco and Mr. Gallien is a school teacher.

Christopher, nine and a half years old at the time of the hearing, testified out of the presence of his parents. Christopher stated that he is happy living in Houston but that he would prefer living in DeRidder because he could hunt and fish there. Christopher stated that he loved his father and Judy (his father's new wife) and would rather live with them than with his mother.

It was also brought out at the hearing that Christopher is a straight A student, participates in recreational activities enjoyed by children of his age and attends church regularly.

Donald Owen moved to Mansfield from Virginia in April of 1981. Donald testified that he moved back to Louisiana in order to be close to his children. He took a significant cut in pay when he left his job in Virginia. He has been employed at International Paper Company since his return to Louisiana and has advanced to the position of Systems Operator A. His superior at International Paper, Dave Turner, testified that Donald is a very dedicated, conscientious and dependable worker. Mr. Turner worked with Donald in Virginia and recommended him for the job in Louisiana once he was informed of Donald's intent to return. Donald remarried on October 10, 1981. His new wife, Judy, also works at International Paper as a program supervisor. Mr. Turner testified that he knew Donald and Judy socially as well as professionally. He described them as being an outstanding young couple and an asset to the community.

Donald works rotating shifts at International Paper. He testified that the children would be kept at a next door neighbor's house until Judy returned home from work at 4:00 p.m. Judy expressed her love for Christopher and Aimee and her desire to have them live with her, Donald and their thirteen month old baby daughter. The Owens live in a four bedroom brick home in Mansfield. Donald testified that he and Christopher hunt and fish together. He also testified that the children cry every time they have to leave Mansfield to return to Houston.

The trial testimony also revealed recriminations by Donald against Andrea and vice versa. Donald claimed that Andrea neglected her children's emotional and physical needs while she was attending McNeese, although there was nothing in the record to substantiate such claims.

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Bluebook (online)
477 So. 2d 1240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owen-v-gallien-lactapp-1985.