Waits v. Waits

556 So. 2d 215, 1990 WL 5374
CourtLouisiana Court of Appeal
DecidedJanuary 24, 1990
Docket21124-CA
StatusPublished
Cited by7 cases

This text of 556 So. 2d 215 (Waits v. Waits) 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
Waits v. Waits, 556 So. 2d 215, 1990 WL 5374 (La. Ct. App. 1990).

Opinion

556 So.2d 215 (1990)

Eva Wise WAITS, Plaintiff/Appellant,
v.
Lonnie Joe WAITS, Defendant/Appellee.

No. 21124-CA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 1990.

Joe D. Guerriero, Monroe, for plaintiff/appellant.

Lesa H. McGaha, Ruston, for defendant/appellee.

Before SEXTON, NORRIS and LINDSAY, JJ.

*216 NORRIS, Judge.

The mother, Eva Wise Waits Gurgiolo, appeals a judgment on a rule to modify the joint custody of two children, Joshua (age 5) and Joseph (age 2). A prior judgment had allotted an even six months of domiciliary custody to her and the father, Lonnie Joe Waits, with the proviso that the children would always remain at the former matrimonial home in Arcadia and the parents would spend alternating six-month periods with them. The parties, however, have hardly complied with this plan; they were bitterly antagonistic and uncooperative, and often resorted to legal means to enforce visitations and custody exchanges. Both sides filed change of custody rules which were consolidated and heard in January 1989. After listening to extensive evidence, including expert testimony, the trial court amended the joint custody order to make the father primary custodian for nine months (the school year) and the mother for three (summer vacation), with familiar visitation and vacation provisions.

The mother now appeals, urging the trial court erred in finding the children's best interest would be served by awarding primary custody to a father who consistently refused to let her exercise visitation, fought with her, disregarded court orders and abused legal process. She also claims the trial court erred in not finding the father's home environment was detrimental to the children. For the reasons expressed, we affirm.

FACTS

Eva and Lonnie were married in 1983. It was the second marriage for both of them and each had a child from the previous marriage. During the instant marriage, Joshua and Joseph were born. Eva sued for separation in June 1986, alleging cruel treatment. She received provisional custody of the children; Joseph was at the time four months old.

The first trial of custody and support was held in June 1987. From the bench Judge Butler ruled that the children were to stay in the house in Arcadia and the parents were to take turns living with them for six-month intervals. According to the order, Lonnie was to be at the house until the end of June; at the beginning of July Eva was to move in and stay through December. The judgment, however, was not signed and filed until September 14.

On July 1 Eva, accompanied by her mother and father, came to the house at 12:01 a.m., ready to move in. Lonnie turned her away. When Eva returned at midmorning there was a violent confrontation. The children were not at the house; Eva went through the rooms, searching vainly, and Lonnie refused to tell where they were. When Eva accused Lonnie of removing some of her personal belongings from the house, the argument escalated. Lonnie called the sheriff's office but no one came. Finally Lonnie and Eva exchanged insults about each other's parents. Lonnie flew into a rage and bounded after her. Eva claims he hit her in the face, but Lonnie claims she bumped into a wall while trying to flee. Lonnie admits he physically threw her out the back door and onto the pavement. Eva's mother, who had waited outside, helped her up and they declined Lonnie's offer to call an ambulance. (They also declined help from Lonnie's uncle, who had happened upon the scene.) Instead they went to the sheriff's office to show someone what Lonnie had done. When it appeared that no one would help them, they went to the courtroom area and flagged down Judge Butler, who sent her to the hospital. Judge Butler's deposition was offered at the subsequent trial. When he saw Eva that morning, she appeared to have "been in an accident or something of that nature" and was "bloody all over the face." Butler's Dep., 4, 6.

Lonnie claimed he had several good reasons for refusing to give up the house and children on that occasion. He "understood" Eva would give him a few extra days to move out; Eva denied any such understanding. He also said Eva came at an inconvenient time, right after midnight; Eva thought, however, that when Lonnie had told her July 1 started at 12:01 "as far as he is concerned," he meant she could come then. Lonnie also claimed to believe *217 that Judge Butler's order was not valid because it was not yet signed. Nevertheless he felt sure Eva intended not to comply with the unsigned order, since she showed up in an empty truck as though just to pick up the boys but not move into the house. Eva contends the truck was loaded with her clothes, some food and small household items and she fully intended to occupy the house.

Most of the later incidents of custody exchanges and visitation were thwarted, or at least riddled, by the same kind of misunderstanding, recrimination and petty excuses outlined above. To reiterate all the accusations for each incident would serve no useful purpose here; for brevity's sake we will merely outline the subsequent events. Fortunately there was no further physical violence.

After she left the hospital on July 1, Eva's attorney filed an ex parte motion for return of the children. In fact, Eva returned to Judge Butler's chambers shortly after lunch that day; by then she was "an entirely different person" with a clean, unbruised face, and she was "almost running when she came in." Butler's Dep., 8, 9. Judge Butler signed an order dated July 3 and Eva got custody of the boys for a few days. Lonnie responded on July 10 with his own "motion and order for custody" which Judge Butler signed, granting Lonnie "temporary" custody pending hearing on the rule. The rule was set for July 30 but it was upset and continued without date. As a result, Lonnie kept the boys for over a year. Meanwhile Eva moved to Monroe and lived at four different addresses over a year's time. She hired a new lawyer and began what was by her description a barrage of requests for visitation, chiefly by phone calls from her attorney to Lonnie's attorney. She was unsuccessful, and ascribed it to Lonnie's refusal to cooperate. According to Lonnie, she made no effort or no genuine effort to see the boys during this time because she was too busy courting her new husband. In September 1987 Eva filed for divorce and custody in Ouachita Parish. The divorce was granted but custody dismissed for improper venue. During this time Eva met her new husband, Danny Gurgiolo, and they married in May 1988. Eva hired her third attorney, Joe D. Guerriero, and between late May and late June, she exercised weekend visitation three times.

On July 1, 1988 Eva (with Danny) returned to the house in Arcadia to move in, in accord with the June 1987 judgment, which had been signed on September 14, 1987. Lonnie refused to let them in. Eva and Danny tried again about a month later but were again refused entry. Lonnie filed a new rule for change of custody, which Judge Butler signed on August 4, including another order granting Lonnie "temporary" custody pending a hearing. Eva responded with another ex parte motion to enforce the June 1987 judgment, together with another rule for custody requesting domiciliary custody for 11 months of the year. Judge Butler signed this order on August 11, rescinding his order of August 4 and instructing Lonnie to give the boys to Eva by August 16. Lonnie complied, and Eva kept the children until December 31. During this time, visitation worked smoothly, which had not been the case while Lonnie had custody. Eva also filed a motion to recuse Judge Butler, which was granted.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Brantley v. Kaler
986 So. 2d 188 (Louisiana Court of Appeal, 2008)
Washkow v. Washkow
765 So. 2d 1210 (Louisiana Court of Appeal, 2000)
Stewart v. Stewart
705 So. 2d 802 (Louisiana Court of Appeal, 1998)
Yelverton v. Yelverton
621 So. 2d 36 (Louisiana Court of Appeal, 1993)
Stanley v. Stanley
592 So. 2d 862 (Louisiana Court of Appeal, 1991)
Lundin v. Lundin
563 So. 2d 1273 (Louisiana Court of Appeal, 1990)
Edwards v. Edwards
556 So. 2d 207 (Louisiana Court of Appeal, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
556 So. 2d 215, 1990 WL 5374, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waits-v-waits-lactapp-1990.