Walkowiak v. Walkowiak

749 So. 2d 855, 1999 WL 1140638
CourtLouisiana Court of Appeal
DecidedDecember 8, 1999
Docket32,615-CA
StatusPublished
Cited by4 cases

This text of 749 So. 2d 855 (Walkowiak v. Walkowiak) 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
Walkowiak v. Walkowiak, 749 So. 2d 855, 1999 WL 1140638 (La. Ct. App. 1999).

Opinion

749 So.2d 855 (1999)

Peter J. WALKOWIAK, Plaintiff-Appellant,
v.
Karla S. WALKOWIAK, Nee Harper, Defendants-Appellees.

No. 32,615-CA.

Court of Appeal of Louisiana, Second Circuit.

December 8, 1999.

*856 Albert E. Loomis, III, Monroe, Counsel for Appellant.

Bobby N. Underwood, Monroe, Counsel for Appellee.

Before STEWART, GASKINS and CARAWAY, JJ.

GASKINS, J.

Peter J. Walkowiak appeals from a trial court judgment designating his former wife, appellee Karla S. Walkowiak, as primary domiciliary parent of their two daughters and allowing her to move to Houston, Texas, with the girls. He also complains of the trial court's award of child support. We affirm the trial court's custody award to Mrs. Walkowiak; however, we reverse the portion of the trial court judgment setting child support.

FACTS

Mrs. Walkowiak was raised in Houston, Texas; Mr. Walkowiak grew up in Pennsylvania. They met in Houston in the early 1980's when Mr. Walkowiak was there working for Eastern Electric. They married in June 1984. The early years of their marriage were especially difficult. In 1984, Mrs. Walkowiak, then 21 years old, pled guilty to possession of Mandrex with intent to distribute. In 1985, she was hospitalized for a drug overdose. She claimed that she accidentally ingested too much migraine pain medication; according to her husband, it was a suicide attempt.

In about 1985, the couple moved to Pennsylvania when Mr. Walkowiak was transferred; they resided there until 1996 when Mr. Walkowiak's job caused them to move to Monroe, Louisiana. Two daughters were born to them: Amber (DOB June 6, 1988), and Kasey (DOB August 5, 1992). After moving to Monroe, Mrs. Walkowiak, who had previously stayed at home with the children, obtained an administrative job at a pest control company.

The parents separated in July 1997; Mrs. Walkowiak filed for divorce. In October 1997, the mother was named primary domiciliary parent of the children in a consent judgment which specified that any move by the mother from Louisiana would not be a "change in circumstances" sufficient to warrant modification of custody by the father except as to visitation. In November 1997, the parents reconciled.

*857 In April 1998, the parents separated again when the mother and the children moved from the matrimonial home in Ouachita Parish. In May 1998, Mrs. Walkowiak sent her husband a certified letter informing him of her intention to move to Texas and giving him what she anticipated would be their new address. In July 1998, the mother and the two girls moved to Houston where they moved in with the family of a childhood friend of Mrs. Walkowiak and the children were enrolled in school. Mrs. Walkowiak, an employee of the Orkin pest control company, took a lateral transfer in the company from the Monroe office to the company's Houston branch.

On September 3, 1998, Mr. Walkowiak filed the instant suit for divorce and partition of community property. In his petition, Mr. Walkowiak requested joint custody with him being designated as domiciliary parent. He alleged that the mother was habitually unstable and that she attempted suicide in 1985. He also claimed that she was an adulteress and a drug addict who had a 1984 drug conviction. He requested that she be enjoined from moving the children from Ouachita Parish; that request was granted pending a hearing.

Eight days later, the mother filed an ex parte motion for return of the children in which she asserted that the father had omitted pertinent facts from his petition. She alleged that Mr. Walkowiak entered into a written agreement with her that he would take the girls on a trip to Dallas from September 5 to 7 and that he would not keep them longer than that. She accused him of kidnapping the girls and filing a petition which wrongfully inferred that he had custody of the girls in Ouachita Parish. The court vacated its prior order enjoining the mother from taking the girls back to their home in Texas and awarded the mother temporary custody.

On October 7, 1998, Mrs. Walkowiak filed a rule for alimony pendente lite and child support. On December 17, 1998, she filed an answer and reconventional demand in which she sought a divorce. (She later dismissed the alimony pendente lite claim without prejudice.)

Trial was held on October 6 and November 13, 1998. By written reasons rendered on December 18, 1998, the trial court awarded joint custody with the mother being named primary domiciliary parent. The court noted that neither parent had any relatives or other ties to Ouachita Parish and that each worked for a nationwide company. The court noted the father's contentions that the mother was morally unfit to have custody. It also considered the mother's testimony that while she had engaged in an adulterous relationship, it had had no effect upon the children. The court found that there was no evidence that the children were exposed to or harmed by this affair. As to the allegations of drug use, the mother admitted that both she and the father had used drugs 10 to 15 years before; however, she denied recent drug use. She admitted using diet pills but stated that it was at the insistence of Mr. Walkowiak who wanted her to lose weight. (She testified at trial that she stopped taking the diet pills after the father made an issue of them.) The court noted that the father had not been "idle" during the separation, having embarked upon a relationship with a woman named Theresa Semmes.

In its written opinion, the court candidly stated that at the first hearing, it had the impression that the father was the more stable parent. However, the court stated that its opinion changed at the second hearing; it observed that a "defining moment" in the case was when the father was unable to answer the court's questions about a $3,000 loan he made to his paramour in light in his failure to pay child support since August 15, 1998.[1] In the *858 court's opinion, this communicated that "at least, at that given moment, plaintiff placed the interest of Ms. Semmes over that of his children."

The court denied the mother's claim for interim spousal support. It awarded child support of $897.31 per month, retroactive to October 7, 1998. In its written reasons for judgment, the trial court stated that this amount was calculated under the guidelines based upon a finding that the father's gross monthly income was $4,400 and the mother's gross monthly income was $1,641.20. Judgment was signed on January 22, 1999.

The father appealed.

CUSTODY

Law

The relocating parent has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child. La. R.S. 9:355.13.[2]

If the issue of relocation is presented at the initial hearing to determine custody of and visitation with a child, the court shall apply the factors set forth in La. R.S. 9:355.12 in making its initial determination. La. R.S. 9:355.15.

La. R.S. 9:355.12 requires the trial court to consider the following factors:

(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.

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Cite This Page — Counsel Stack

Bluebook (online)
749 So. 2d 855, 1999 WL 1140638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walkowiak-v-walkowiak-lactapp-1999.