Berzins v. Betts

• Decision Date: 10 October 1984
• Docket Number: No. 83-911,83-911
• Citation: 457 So.2d 282
• Parties: Karlis BERZINS, Plaintiff-Appellant, v. Sherry Wileman BETTS and Johnny D. Betts, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 282

457 So.2d 282

Karlis BERZINS, Plaintiff-Appellant, v. Sherry Wileman BETTS and Johnny D. Betts, Defendants-Appellees.

No. 83-911.

Court of Appeal of Louisiana Third Circuit.

Oct. 10, 1984.

Joseph Kutch, Leesville, for Johnny Betts.

John Skaggs, Baton Rouge, for Sherry Betts.

Don Martin, Leesville, for Karlis Berzins.

Claude Leach, Jr., Leesville, for intervenors.

Before GUIDRY, LABORDE and YELVERTON, JJ.

LABORDE, Judge.

Plaintiff, Karlis Berzins, instituted this child custody action against defendants, Sherry Wileman Betts and Johnny D. Betts, the divorced parents of the minor, Shannon Denise Betts. In a separate proceeding entitled Sherry W. Betts v. Johnny D. Betts, No. 27419, Johnny convoked a rule nisi to obtain custody of Shannon from his former wife, now missing. Additionally, the minor's maternal aunt and uncle by marriage, Mr. and Mrs. Eddie A. Tilley, intervened in the instant proceeding seeking custody of the minor. The trial judge consolidated these actions and awarded custody of Shannon to the Tilleys. Both plaintiff and Johnny D. Betts, plaintiff-in-rule in the companion case, have appealed from this custody award. Finding no manifest error or abuse of discretion in the trial court's award of custody to the Tilleys, we affirm.

In the companion case entitled Betts v. Betts, 457 So.2d 287 (La.App. 3rd Cir.1984), a separate opinion has been rendered by us this day.

FACTS

In this highly contested custody suit, the party litigants each seek custody of Shannon Denise Betts, a female child now twelve years of age. This is a dispute between a parent and non-parents.

Shannon was born November 22, 1971, issue of the marriage between Sherry W. Betts and Johnny Betts. Their marriage resulted in divorce on March 23, 1976 and custody of Shannon was awarded to the mother, Sherry.

Sometime prior to the divorce, Sherry began living with Karlis Berzins, plaintiff herein, and continued to live with him except for two brief intervals, in open concubinage, until September 1982. During that period of time, Shannon lived with them. She continued to reside in the Berzins home until trial.

In September of 1982, Sherry Betts suddenly and mysteriously disappeared and has since failed to return. According to the various witnesses, especially the testimony of the plaintiff, Karlis Berzins, she was on a business errand for him traveling from Leesville to New Orleans when she disappeared. When she failed to return as expected, a missing person report was filed. The car which she was driving was found in Baton Rouge, Louisiana, destroyed by fire. There was no trace of Sherry at that time, nor since, and it is purely speculative to state whether she is still alive.

Following this prolonged absence, plaintiff petitioned the court for custody of Shannon. A curator was appointed to represent Sherry's custody interest and a publicized article requesting information from her and others as to her whereabouts was circulated to no avail.

Plaintiff, Karlis Berzins, was the paramour of Shannon's mother for approximately nine years following Sherry's separation from Johnny. Though unrelated to Shannon, plaintiff has provided much of the support for the child over the past nine years. During the last several months, she has been living in the Berzins home except for brief visits with relatives.

Johnny Betts, Shannon's father, has not had custody of his daughter since the rendition of his separation from Sherry in January 1975. He has, however, been allowed to visit with Shannon, and on occasion, she has visited him at his home in Lafayette. Johnny is now remarried and presently experiencing severe marital discord for which he has sought counsel.

Intervenors, Eddie Anderson Tilley and his wife Beverly Wileman Tilley, are religious missionaries presently in Norway. Mrs. Tilley is Shannon's maternal aunt. The trial court reasoned that it was in the child's best interest that she be placed in the custody of the Tilleys.

Plaintiff appeals from this judgment and in a companion case consolidated with this appeal, Johnny D. Betts appeals as well.

ISSUES

The following issues are presented on appeal:

(1) Whether the trial court erred by placing the minor in the care, custody and control of interested non-parents rather than with the child's father; and,

(2) Whether the trial court properly imposed all court costs solely upon plaintiff, Karlis Berzins.

ISSUE # 1: PARENT VERSUS NON-PARENT IN CUSTODY DISPUTES

It is established in our law that a parent has paramount rights to custody of his or her child and may be deprived of such right only for compelling reasons. In order for a non-parent such as the Tilleys or Mr. Berzins to be awarded custody over Mr. Betts, the trial court must have found that an award to the parent would be detrimental to the child, and additionally, that such an award to a non-parent is required to serve the best interest of the child. LSA-C.C. article 146(B). This dual prong requirement, although overlapping and contingent, is necessary for awarding custody to a non-parent when the parent asserts the paramount parental right of custody.

LSA-C.C. article 146(B) provides:

"B. Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings."

We have recognized in the past that when a parent competes with a non-parent for custody, as in this case, the parent's right to custody must be upheld unless it is established by convincing proof that he or she is unfit or has forfeited these parental rights of custody by action or omission. Wood v. Beard, 290 So.2d 675 (La.1974); State in the Interest of Taylor 296 So.2d 841 (La.App. 2nd Cir.), writ refused, 299 So.2d 799 (La.1974); Girouard v. Halpin, 368 So.2d 1139 (La.App. 3rd Cir.), writ denied, 369 So.2d 1377 (La.1979); Tolar v. Cunningham, 368 So.2d 1188 (La.App. 3rd Cir.), writ refused, 369 So.2d 710 (La.1979); Paul v. Cloud, 378 So.2d 586 (La.App. 3rd Cir.1979), writ refused, 380 So.2d 101 (La.1980); Juneau v. Bordelon, 380 So.2d 208 (La.App. 3rd Cir.1980); LaCroix v. Cook, 383 So.2d 59 (La.App. 2nd Cir.), writ denied, 384 So.2d 801 (La.1980); LaPointe v. Menard, 412 So.2d 223 (La.App. 3rd Cir.1982).

In a very powerful and important footnote, the trial court made the following observations:

"During the trial it became evident to me that there was no controversy as between Mr. Berzins and Mr. Betts. I declared a recess and during the conference in chambers informed counsel of my suspicions that Mr. Betts was merely attempting to aid Mr. Berzins in his application based upon observations related to counsel relative to the demeanor of the parties and the manner in which the trial was progressing. I suggested that the Court should not be misled in this regard. After a brief discussion with his client, Mr. Kutch, counsel for Mr. Betts, verified that it was his client's intention to leave the child in the actual custody of Mr. Berzins in the event of succeeding in this litigation. His testimony subsequently substantially bears out that representation. I therefore regard Mr. Betts in the nature of an interposed party. The prayer of his petition would have more adequately expressed his objective if he had prayed for custody in favor of Mr. Berzins and for himself in the alternative."

After thoroughly reviewing the record, we find, as did the...