Weems v. Weems

548 So. 2d 108, 1989 WL 100444
CourtLouisiana Court of Appeal
DecidedAugust 23, 1989
Docket20680-CA
StatusPublished
Cited by8 cases

This text of 548 So. 2d 108 (Weems v. Weems) 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
Weems v. Weems, 548 So. 2d 108, 1989 WL 100444 (La. Ct. App. 1989).

Opinion

548 So.2d 108 (1989)

Barbara Ann Ferguson WEEMS, Appellant,
v.
Jacky Ray WEEMS, Appellee.

No. 20680-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 1989.
Rehearing Denied September 21, 1989.

Singer, Boothe & Dean by Samuel T. Singer, Winnsboro, for plaintiff/appellant.

S.E. Lee, Jr., Winnsboro, for defendant/appellee.

*109 Before FRED W. JONES, Jr., NORRIS and LINDSAY, JJ.

NORRIS, Judge.

The mother, Barbara Underhill (formerly Weems), appeals a judgment in rule that amended a prior joint custody order by making the father, Jacky Weems, the primary domiciliary parent. For the reasons expressed, we reverse and render.

The parties were married in early 1980 and had two children, Brandy and Chris, ages seven and four at the time of the instant hearing. Barbara sued for separation in July 1987, alleging cruel treatment and abandonment. Jacky reconvened in January 1988, seeking a divorce on grounds that Barbara had been engaged in an adulterous affair with a man named Tony Underhill in Denton, Texas for several months. He alleged that he and Barbara attempted to reconcile for about two weeks in December 1987 but at the end of that time Barbara left with Tony Underhill and took the children by force. A trial was held on January 28, 1988, after which the court granted Jacky a final divorce. The court's joint custody order provided, inter alia:

(1) The children were to be returned to Franklin Parish and Brandy re-entered in the Baskin School System.
(2) Barbara was to return to Franklin Parish, Louisiana and not to consort or associate with Tony Underhill or any other man in the company of the children; Jacky was not to consort with or live with any females during the time he had custody of the children.
(3) Barbara was to be the primary domiciliary parent, with custody "actually during the full school term."
(4) Jacky was to have custody "during the summer months when the children are out of school."
(5) There were provisions for visitation on odd weekends and holidays; and Jacky was to pay child support while Barbara had custody.

From the time of the first trial until late May 1988, the parties reasonably complied with the order. Around the last day of school, however, when she was supposed to transfer custody to Jacky, Barbara collected the children and took them to Texas, where she was now living with Tony Underhill, whom she had married on May 20. Barbara had never advised Jacky that she intended to take this action; when he went to pick up the children at Barbara's mother's house on May 27, they were not there. Barbara's mother finally admitted, after Jacky summoned a sheriff's deputy, that Barbara had taken them, but insisted she did not know where they went. Over the next few weeks, Jacky repeatedly asked Barbara's relatives for her whereabouts, but no one would tell him. During this time, Barbara never called or wrote.

Jacky filed the instant rule for contempt and to change custody on August 18, 1988. When the matter came up for hearing on September 19, it was the first time he had seen his children all summer.

At the hearing, Barbara admitted that by refusing to let Jacky have custody during the summer she was clearly violating the custody order. She testified, however, that she understood the order to permit her to take the kids out of state if she got married to Tony Underhill. Moreover, she felt justified in taking them without telling Jacky because she "knew" that his girlfriend, Rhonda, was living with him in contravention of the order. Jacky admitted that Rhonda was spending time with him, but denied that she ever spent the night while the children were around. Barbara stated that she was willing to let Jacky have the children pursuant to the order if he would not consort with Rhonda in the children's presence, or if he would marry her; but she learned from her brother-in-law, Eddie Quimby, that Jacky had no intention of marrying her. Eddie did not corroborate this, and Jacky testified that he and Rhonda were engaged.

Barbara testified that Jacky never tried to get in touch with her all summer. She specifically denied that he tried to reach her through Eddie Quimby. However, Eddie testified that Jacky did indeed inquire, "several times," but he always put him off by saying he did not know her exact address *110 in Texas. Barbara testified she could not contact Jacky directly because she was "sure" his phone was disconnected. She added that Jacky knew some of her relatives in Denton (he had served his reconventional demand for divorce at their house), and if he had called them, they would have given him her address.

Barbara testified that between the time of the first trial and late May, she was living with her mother and some other relatives at the mother's house in Baskin. Though the house was large, it was somewhat crowded; Barbara had to share a room with Brandy and Chris. She said she stayed there to comply with the order to keep the children in Franklin Parish. The new home in Texas, according to Barbara, is in a "country" setting and is big enough for each child to have a separate room. When Barbara told the children they had to come back to court, Brandy had some nightmares and Chris got upset. Otherwise the children have adjusted very well to the move and are quite happy in Texas. Brandy "loves" the school in Dallas and has made friends there; Chris is in day care. Although both Barbara and Tony are working, there is no problem with transporting the children and watching them after school.

Jacky testified that he no longer works for the pipeline company (Barbara's claim of abandonment was based on him being away for months at a time on a job in New Jersey). He now works as a mechanic at Classic Chevrolet in Delhi and still lives in the former family home at Crowville, in Franklin Parish. Although he works long hours, his sister-in-law and aunt are willing to help him with child care. Ehonda is living with her mother in Delhi, not with Jacky.

The witnesses testified to numerous arguments and altercations between Jacky and Barbara. Most of these occurred before the original trial so we will not relate them here. What this testimony establishes, however, is that there is much animosity between the parties and their families. Nevertheless, each admitted that the other loved the children and was a good parent toward them.

The trial court delivered oral reasons for judgment. On the issue of contempt, the court found that Barbara's explanation of her actions was essentially an "afterthought" which did not justify defying the custody order. The court found her guilty and imposed a sentence of three months in the parish jail, suspended on condition that she not violate future custody orders, and a fine of $250. The contempt ruling is not appealed.

On the issue of custody the court found that the parties both loved the children and were fit parents. It noted that since the move to Texas, Brandy has had nightmares and Chris is "unstable and unsure of himself." It considered that Barbara's wilful violation of a court order, plus her earlier conduct in taking the children, showed no respect for the law. It also noted that Barbara's acts did not promote the children's interest in maintaining continuing contact with both parents, especially when she seemed to hide them from Jacky. It stressed that the children had spent all their lives in Franklin Parish and, on this basis, they should continue to live there, not in Texas.

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Cite This Page — Counsel Stack

Bluebook (online)
548 So. 2d 108, 1989 WL 100444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weems-v-weems-lactapp-1989.