Reynaud v. Reynaud

484 So. 2d 294, 1986 La. App. LEXIS 6292
CourtLouisiana Court of Appeal
DecidedMarch 5, 1986
DocketNo. 84-1179
StatusPublished
Cited by1 cases

This text of 484 So. 2d 294 (Reynaud v. Reynaud) 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
Reynaud v. Reynaud, 484 So. 2d 294, 1986 La. App. LEXIS 6292 (La. Ct. App. 1986).

Opinion

FORET, Judge.

This appeal arises out of a custody dispute over two minor children. Both mother, Cindy Reynaud, and father, André Rey-naud, applied for sole custody, requesting a change in the present joint custody order. The trial court denied each parent’s request for sole custody and maintained the previous joint custody order. The father of the two minor children has appealed the judgment, urging an abuse of discretion and manifest error in the trial court’s ruling.

We reverse the judgment of the trial court and award sole custody to the father.

The litigants are the parents of Kimberly B. Reynaud, now age 9, and Lori K. Rey-naud, now age 7. André was granted a separation from bed and board on October 29, 1982. At that time, Kimberly was 6 and Lori, 4. Custody was granted to the mother. Subsequently, André discovered his estranged 25-year-old wife living in the matrimonial domicile, with their children, in an adulterous relationship with a 17-year-old male. Consequently, André filed for a divorce on February 22, 1983, and requested sole custody.

The trial judge and the litigants agreed to a joint custody arrangement after negotiations between respective counsel took [296]*296place1. The order providing for joint custody gave each parent physical custody for one year periods on alternating years. The judgment was rendered on March 29, 1983, and signed on April 5, 1983. André was to have custody of the two children from March 29, 1983 until May 31, 1984. Cindy was to have custody from June 1, 1984 through June 1, 1985, etc.

André and Cindy were divorced on June 10, 1983. Cindy married her paramour, Mark Michael Scallan, on July 9, 1983, in Chicago, Illinois.

On August 13, 1984, Cindy filed a rule for change of custody, requesting sole custody. André likewise filed a rule on September 14, 1984 and requested sole custody or, in the alternative, a custody award to the paternal grandparents. From the lower court’s ruling on September 14, 1984 denying sole custody, André has appealed.

The standard of review in a child custody dispute requires the court of appeal to give the lower court’s decision great weight and to overturn that judgment only when there is a clear abuse of discretion. Warner v. Warner, 476 So.2d 1053 (La.App. 3 Cir.1985). Because we find that the trial court’s decision is clearly erroneous and an abuse of its discretion, we reverse.

The applicable law for this case is found in Arts. 146 and 157 of the Louisiana Civil Code. LSA-C.C. Art. 157A provides:

“In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146.”

Art. 146, in a somewhat lengthy and detailed fashion, attempts to set out guidelines in custody cases. Quoting the article herein would serve no useful purpose. Suffice it to say that Art. 146 dictates that the appropriate standard to apply in a child custody determination is the “best interest of the child.” Turner v. Turner, 455 So.2d 1374 (La.1984); Veillon v. Veillon, 480 So.2d 464 (La.App. 3 Cir.1985).

The trial court stated that:

“Neither of these parents are stable as one might wish for them to be. The mother is especially a suspect in that area. However, for the benefit of the children and this is to their advantage, both grand ... the grandparents on both sides are stable and they both have, that is both the families, the grandparents have stable homes and this has been to the helpful benefit of the children. ... Nothing has been proved in this court today to justify any change of custody arrangements in this case.”
(emphasis ours)

We believe that the record in this case reflects that the statutory presumption favoring joint custody has clearly been rebutted by André. Additionally, the record lacks any evidence of the stability of the maternal grandparents. Aside from a statement by Francis Reynaud that the girls visited the maternal grandparents on occasional weekends, no other mention of contact between the girls and the maternal grandparents appears in the record.

Cindy admitted that while her husband worked offshore, she engaged in an adulterous relationship with Mark Scallan. The record reflects that upon obtaining sole custody and being judicially separated from André, Cindy allowed Mark Scallan to reside with her and the children in the matrimonial domicile. Although illicit sexual activity alone is not enough to deprive a parent of custody, the resulting detrimental effects on the children may be rightfully considered in the determination of what is in the best interest of the children. Davis v. Davis, 422 So.2d 680 (La.App. 3 Cir.1982); LSA-C.C. Art. 146C.(2)(b), (f) and (il). Cindy admitted engaging in her adulterous relationship in front of her children.

[297]*297The record reflects that the mother failed to provide a stable environment for the children. Cindy and her paramour changed residences a minimum of thirteen times between October, 1982 and September, 1984. Cindy had custody of the two minor children for some time during this erratic period. Continuity and stability must be considered in the determination of what is in the best interest of the children. Everett v. Everett, 433 So.2d 705, 708 (La.1983); Johnston v. McCullough, 410 So.2d 1105 (La.1982); Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); LSA-C.C. Art. 146C.(2)(d) and (e).

The record indicates that the mother would often drop the children off at the home of the paternal grandparents on the spur of the moment, as if on whim. The children were also shuttled between her temporary home, wherever it might happen to be, and the grandparents’ home.

While Cindy and her paramour were living in Alexandria, the children did not receive regular schooling. At one time they were out of school for at least two weeks. Consequently, the paternal grandparents and the father have seen to the enrollment of the children in school. One of the rebutting factors listed in LSA-C.C. Art. 146 is “(t)he capacity and disposition of the parties involved to give the child ... and to continue the education ...” and “(t)he home, school, and community record of the child.” We believe that Cindy has failed to demonstrate an adequate interest in the girls’ schooling.

LSA-C.C. Art. 146C.(2)(j) provides an additional rebutting factor: “... 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.” In November of 1982, Cindy and her paramour moved (with the children) to Lake Charles without notifying André or the grandparents of the change of address. After an independent investigation, the Reynauds were able to locate them. In André’s petition for sole custody, he expressed a fear that Cindy and her husband were contemplating moving to the state of Florida. We do not believe that Cindy has made an effort to facilitate and encourage a continuing parent-child relationship between the children and their father.

Now that she has remarried and her husband is gainfully employed, Cindy claims that she can provide for the daily needs of the children2.

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499 So. 2d 149 (Louisiana Court of Appeal, 1986)

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Bluebook (online)
484 So. 2d 294, 1986 La. App. LEXIS 6292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynaud-v-reynaud-lactapp-1986.