Stewart v. Stewart

430 So. 2d 189
CourtLouisiana Court of Appeal
DecidedMarch 28, 1983
Docket15292-CA
StatusPublished
Cited by5 cases

This text of 430 So. 2d 189 (Stewart v. Stewart) 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
Stewart v. Stewart, 430 So. 2d 189 (La. Ct. App. 1983).

Opinion

430 So.2d 189 (1983)

Cynthia Denise Cassell STEWART, Plaintiff-Appellant,
v.
Norman Dale STEWART, Defendant-Appellee.

No. 15292-CA.

Court of Appeal of Louisiana, Second Circuit.

March 28, 1983.

Fayard & Snell by A.R. Snell, Bossier City, for plaintiff-appellant.

Love, Rigby, Dehan, Love & McDaniel by Samuel P. Love, Jr., Shreveport, for defendant-appellee.

Before PRICE, HALL and NORRIS, JJ.

HALL, Judge.

Appellant, Cynthia Stewart Gonzales, appeals a judgment of the district court awarding a change of custody of the two daughters, ages three and four, born of the former marriage between appellant and appellee, Norman Dale Stewart, from the appellant to the appellee. For the reasons expressed in this opinion, we reverse the judgment of the district court, and render judgment rejecting appellee's petition for a change of custody, and reinstate the previous judgment of the district court granting custody to the appellant.

The Stewarts were married on April 22, 1977 and two children were born of this marriage, Shannon Denise born on December 20, 1977, and Melisa Nicole born on February 10, 1979. The parties developed marital difficulties in early 1980 and separated in February of that year. They later reconciled but in December 1980 the parties separated again. Mrs. Stewart filed a petition for separation on the grounds of constructive abandonment and cruel treatment, and asked for custody pendente lite of the two girls. Mr. Stewart answered, denying Mrs. Stewart's allegations and reconvening for separation on the grounds of her abandoning him. Mr. Stewart also asked for custody pendente lite of the children. A judgment in Mrs. Stewart's favor in the separation action was signed on March 10, *190 1981, awarding Mrs. Stewart the custody pendente lite of the minor children and ordering Mr. Stewart to pay her $250 monthly child support.

Between February and March 1981 Mr. and Mrs. Stewart met and began dating other people. Mrs. Stewart was keeping steady company with Dale Gonzales, while Mr. Stewart was regularly seeing Debbie Nix. In August 1981 Mr. Stewart filed a petition for an absolute divorce on the grounds of adultery. Mrs. Stewart answered, denying the allegations of Mr. Stewart's petition and reconvening for an absolute divorce on the grounds of Mr. Stewart's alleged adultery with Ms. Nix, who was alleged to be pregnant with Mr. Stewart's child. Mrs. Stewart additionally alleged in her petition that Mr. Stewart was $850 in arrears in his child support obligation. Trial was held on these issues and a judgment was rendered on November 5, 1981 granting Mrs. Stewart the divorce, permanent custody of the children, and permanent child support in the amount of $250 per month. Although the divorce was granted to Mrs. Stewart, testimony at the later change of custody hearing makes it clear that it was established at the divorce trial that both parties had been guilty of adultery. The trial court found both parties at fault, thereby precluding either party from seeking permanent alimony. In addition, the trial court made executory child support arrearages of $450. Judgment was signed on November 24, 1981.

The day after the divorce judgment was rendered Mrs. Stewart left Louisiana with the children for California where she started living with Dale Gonzales, an Air Force sergeant who had been transferred to California. On November 28, 1981, a few days after the divorce judgment was signed, Mr. Stewart married Debbie Nix to whom his child had been born about a month previously.

On June 17, 1982 Mr. Stewart and the second Mrs. Stewart flew to California to get the children for their two-month summer visitation. When they returned to Louisiana Mr. Stewart, on June 23, 1982, filed the rule to change custody which forms the basis of the instant controversy. Mr. Stewart alleged that a change in custody was warranted because the former Mrs. Stewart was living in open concubinage with Gonzales and therefore exposing the two young children to an illicit sexual relationship to the children's detriment. Alternatively, in the event a change in custody was denied, Mr. Stewart prayed for a change in his visitation privileges.

On August 12, 1982 trial was had on the rule to change custody. Cynthia Stewart Gonzales testified that she and Dale Gonzales had lived together with the children in a three-bedroom house trailer from the time she went to California. They were married on July 18, 1982, after the rule to change custody was filed. She testified that it was always their intention to get married and that they would have been married sooner had Gonzales not had trouble obtaining a divorce from his former wife. It was established that Gonzales separated from his former wife on March 29, 1981 and that the former Mrs. Gonzales filed a petition for divorce on the grounds of having lived separate and apart for one year in early June 1982, prior to the time the rule for change in custody was filed. The Gonzales divorce was rendered in early July 1982.

Mrs. Gonzales testified that she has a high school GED diploma and that she is currently unemployed although she has tried to find employment. She testified further that the two children were never exposed to any illicit sexual activity and that she and Gonzales had sexual relations only at night when the children were asleep. She acknowledged that living with Gonzales without being married to him was wrong but explained that she loved him, did not want to lose him, that he was good for her and the children, and, as previously mentioned, that they had intended all along to be married as soon as he was divorced from his former wife. Mrs. Gonzales testified that she felt that she was adequately providing for the children's needs and that they were healthy and happy. They do not attend church with the children.

*191 The testimony of several witnesses who appeared both for the appellant and the appellee, including the testimony of Mr. Stewart, corroborated the appellant's testimony concerning her fitness as a parent. She was categorized as an excellent housekeeper and a good cook who dressed and fed the children well. All of the witnesses testified that the appellant had always cared well for the children. There was testimony that Mr. Gonzales was a "nice guy" who is good and attentive with the children. He did not testify at the trial because he was unable to get away from his duties with the Air Force.

Mr. Stewart and his present wife testified in his behalf. Mr. Stewart is a carpenter and cabinet maker, regularly employed, with a net weekly pay of between $200 and $250. Mr. and Mrs. Stewart live in a two-bedroom house trailer with their daughter who was nearly 10 months old at the time of the trial. The present Mrs. Stewart is a housewife who cares for the Stewart children and is willing and able to take care of them. Her ability to care for the children was corroborated by a witness for whom she used to babysit and who testified that she is a responsible individual who is adept at caring for small children. The Stewarts do not attend church regularly.

The Stewarts testified that Mr. Stewart was seeking a change in custody because they believe that appellant is unfit to care for the children because of her living with Mr. Gonzales without being married to him which they felt had and would have a detrimental effect on the children. They also testified that they were seeking a change in custody because it was unfair to him for Mrs. Gonzales to have custody, with its attendant difficulties of visitation and communication with the children.

The evidence establishes that Mr.

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Bluebook (online)
430 So. 2d 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-stewart-lactapp-1983.