Adoption of Latiolais

• Decision Date: 10 October 1979
• Docket Number: No. 7183,7183
• Citation: 376 So.2d 555
• Parties: ADOPTION of Rachel Marie LATIOLAIS 1 .
• Court: Court of Appeal of Louisiana — District of US

Page 555

376 So.2d 555

ADOPTION of Rachel Marie LATIOLAIS ¹.

No. 7183.

Court of Appeal of Louisiana, Third Circuit.

Oct. 10, 1979.

Richard J. Putnam, Jr., Abbeville, for defendant-appellant.

Edwards, Stefanski & Barousse, James M. Cunningham, III, Crowley, for plaintiff-appellee.

Before CULPEPPER, DOMENGEAUX, STOKER, JJ.

STOKER, Judge.

This appeal concerns a petition by a stepfather for adoption which is opposed by the adoptive child's actual father. The mother's second husband seeks to adopt her nine and one-half year old daughter under LSA-R.S. 9:422.1. Over the father's opposition the trial court granted the application for adoption. The father appealed the judgment.

The applicant, Kenneth James Guidry, is the second husband of Judy Thibodeaux. She was first married to the opponent, Sherald G. Latiolais. The child in question, Rachel Marie Latiolais, was born of the first marriage. Kenneth James Guidry (referred to hereinafter as "Guidry") seeks to adopt Rachel on the ground that Sherald Glenn Latiolais (referred to hereinafter as "Latiolais") failed to provide support for Rachel for a period in excess of one year prior to the filing of the petition. ²

There is no issue as to the failure of support. Latiolais however, opposes the adoption on the ground that he had "just cause" for failing to provide support. In his specifications of error, appellant Latiolais complains that (1) the trial court erred in finding that he did not prove just cause for failure to provide child support, (2) the trial court erred in allocating the burden of proof on the issue of just cause by placing it on appellant, (3) the trial court's construction of LSA-R.S. 422.1, permitting adoption under the circumstances, rendered the statute unconstitutional and (4) the trial court erred in holding the statute was constitutional.

Appellant, Latiolais, contends that he was justified in failing to make support payments because of an agreement made between him and the mother of the child. According to Latiolais, his former wife, Judy Thibodeaux (by then married to Guidry) approached him in July of 1977 and made the following proposal: That if Latiolais would cease claiming Rachel as an exemption in his income tax returns and permit the Guidry's to claim the exemption, Latiolais would not be required to make any further court-ordered support payments. ³ Judy Thibodeaux Guidry denies she made such an agreement. There are no witnesses to the agreement. The trial court resolved this issue of fact against appellant. The trial judge appears to have made his resolution to a large extent based upon his holding that appellant bore the burden of proof on the issue of just cause. For this reason, the appellant has made this allocation of burden of proof one of his specifications of error. As we read the trial court's reasons for judgment, he also made a credibility evaluation. Under the circumstances, we do not find that substantial issue exists on the fact finding of the trial court. The record does not support appellant any more than it does Judy Thibodeaux Guidry. Hence, the trial court's finding of fact will not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

On the basis of the trial court's finding, the applicant for adoption was within the terms of conditions one and two of the statute and technically justified a decree of adoption in Guidry's favor. However, other facts in the record, which are quite well established and are substantially admitted, present in our opinion, a substantial question as to whether the adoption should be permitted under the peculiar circumstances of this case. Those facts are that, despite the failure to make court-ordered support payments, appellant has continued to exercise his visitation privileges with his nine and one-half year old daughter on a regular basis and there appears to exist a healthy relationship of love and affection between appellant and his child.

We feel that under the facts and circumstances the adoption should not be permitted and the trial court should be reversed. In order to fully appreciate the facts and circumstances, and the law we shall apply, a fuller statement of the facts is necessary.

FACTS

During the marriage of Sherald Glenn Latiolais and Judy Thibodeaux their daughter, Rachel Marie, was born on March 21, 1969. Judy was granted a judicial separation on November 8, 1971. She was granted custody of Rachel and judgment for alimony in the amount of $80 per month and child support in the amount of $70 per month. Judy was granted a divorce on December 17, 1972. She was again given custody and judgment for alimony and child support in the same amounts as provided in the separation judgment. Judy remarried. She married the applicant Guidry on August 29, 1975. The appellant and opponent Latiolais also remarried. He married Dorothy Hardy on February 25, 1978.

Latiolais' record of payment of child support at the time of trial was admittedly poor. Judy Thibodeaux had taken him to court on one occasion and had applied to him frequently through her attorney and also personally to pay what was in arrears or to pay what was currently due. Latiolais testified his last payment was made on July 1, 1977. At the time of commencement of this application, September 21, 1978, he was 31 months behind in his payments. During the 31 months period he had made only 9 payments. (Payments were payable twice a month in installments of $75 each.) Latiolais claims he had made no payments after July 1, 1977, because of the agreement he alleged was made between him and Judy Thibodeaux. He stated his failure to pay prior to that time was due to financial inability. This claim does not appear to substantiated.

The record pertaining to the separation and divorce is not included in the record in this appeal, nor are the judgments. It seems agreed, however, that Latiolais was given visitation rights of one day every other week and this was to be exercised on Sundays. The evidence is quite clear in establishing that Latiolais regularly exercised his visitation rights. This is not contested. Occasionally, if he was unable to visit with his daughter on a given Sunday either because of his own inability or illness of Rachel, or for whatever reason, he was permitted to have visitation on the following Sunday. Judy Thibodeaux admitted that at times prior to July 1977, she had denied Latiolais his visitation privileges in an effort to force him to discharge his obligation to pay child support. It appears, however, that no opposition whatsoever, was ever made after July of 1977 or subsequent to the time of the alleged agreement. Latiolais claimed Judy's attitude changed entirely from that time on and, besides that, she ceased to make any mention of or demand payment of child support. Judy Thibodeaux admits she discontinued demanding payments. Her explanation was that she simply gave up because making demand was not doing any good.

After the separation both Latiolais and Judy Thibodeaux claimed their child as an exemption on their income tax returns. Following inquiry by the Internal Revenue Service, the parties seem to have concluded that the father, Latiolais, had the right to claim this exemption. Latiolais claimed the exemption for the years 1971, 1972, 1973, 1974, 1975, and 1976. The record shows that Latiolais did not claim Rachel in 1977 but that Guidry did. (Trial of this matter took place on November 14, 1978.) Judy Thibodeaux disclaims any knowledge of the change until after she gave a deposition, and her husband, Guidry, testified he had not discussed it with her or informed her of his action in claiming Rachel as an exemption.

Latiolais lived with his parents in the county until he remarried, and Rachel lived with the Guidrys in Rayne. After remarriage, Latiolais lived in Lafayette. On the Sunday visitations Latiolais, or occasionally his parents, would pick Rachel up in Rayne, and the day would be spent at the farm belonging to Latiolais' parents. Sunday dinner would be had there. As a result of this pattern, not only Latiolais, but his parents, the grandparents of Rachel, were also afforded an opportunity to visit with her. The place of visitation permitted Rachel opportunity to ride a horse and enjoy other recreation on her grandparents' farm. On occasion, her father took her fishing. Latiolais' visitation was for the day only, but during the period after July 1977, Judy Thibodeaux once permitted Rachel to go overnight with Latiolais in order that she might go on a family camping trip. The testimony indicates that Latiolais and his daughter enjoyed a normal father-daughter relationship of love and affection.

Latiolais was unaware that his failure to pay the court-ordered child support would provide grounds upon which Rachel's stepfather, Guidry, could seek to adopt her. His first notice of any attempt by Guidry to adopt his daughter was when he was served with the petition in this adoption matter. He then tendered the amount necessary to bring support payments up to date.

Judy Thibodeaux is agreeable to her husband's adoption of Rachel and ardently desires it. Other than Latiolais' objections and lack of consent, there are no reasons why the adoption should not take place. The state agency charged with investigating the proposed adoption recommended it, and the trial court found it to be in the best interest of the child. However, the trial court did not refer to any factors to show it was in the best interest of the child. Our own appreciation of the matter is that there were no negative factors, and the only positive factors were that Guidry was the husband of Rachel's mother, and he would be more likely to play a larger role as Rachel's father than her actual father. She was growing up in Guidry's home and would normally see him six days per week to one for Latiolais every two weeks. The adoption decree in this matter ordered that Rachel's last name be changed from...