Bushnell v. Bushnell
| Decision Date | 09 August 1977 |
| Docket Number | No. 6081,6081 |
| Citation | 348 So.2d 1315 |
| Parties | Harry M. BUSHNELL v. Linda Cheek BUSHNELL. |
| Court | Court of Appeal of Louisiana — District of US |
Walter M. Hunter, Jr., Alexandria, for defendant-appellant.
Gravel, Roy & Burnes, by Dan E. Melichar, Alexandria, for plaintiff-appellant.
Antoon & Dalrymple, by Joseph T. Dalrymple, Alexandria, for plaintiff-defendant-in reconvention-appellant.
Holt, Wagner & Lee, by Richard E. Lee, Pineville, for plaintiff-appellee.
Before HOOD, DOMENGEAUX and WATSON, JJ.
The trial court removed Allison Nikole "Niki" Bushnell, age two-and-a-half, from the custody of her father, Harry M. Bushnell, and returned the child to her mother, Linda Cheek Bushnell, now Mrs. Leo Noland, in a rule proceeding. Because the father had been awarded Niki's custody at the prior divorce hearing and because the trial judge found no deleterious circumstances in her custodial situation with him, Harry Bushnell has appealed.
The chronology of events relative to the marriage and the child are as follows:
February 12, 1972: Harry and Linda married
March 20, 1974: Niki born
February 6, 1975: Parents separated (Niki was
about 11 months old)
April 8, 1975: Custody, alimony and child
support granted Linda
June 11, 1975: Harry granted legal separation
on abandonment; Linda
given custody.
September 2, 1976: Linda petitioned for divorce;
Harry reconvened asking
custody; accused Linda of
adultery with one Noland.
November 2, 1976: Judgment granting Linda
divorce, but changing custody
to Harry.
November 5, 1976: Linda married Leo Noland.
December 13, 1976: Rule filed by Linda for
return of Niki's custody.
January 17, 1977: Judgment returning
permanent custody to Linda.
The reasons for judgment assigned by the trial court in returning custody to the mother by the judgment of January 17, 1977, establish the posture of the case on appeal. In part, the trial court said:
(TR.50)
(TR.51-52)
On appeal, counsel for Harry Bushnell urges strenuously that, since the trial court found no deleterious conditions in Niki's custody with Harry and relied entirely on the presumption of the mother's paramount right to custody, the judgment changing custody is erroneous as a matter of law.
After reviewing the record, we find that these arguments are persuasive but not conclusive.
The paramount issue in this case, the trial court correctly held, is the welfare of the child.
Appellant couches his argument that the trial court erred principally on the old "double burden" rule established in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955) which was to the effect that a person seeking change of custody must prove that (1) the circumstances under which the child is living are deleterious to its welfare and (2) the applicant for a change in custody can provide a better environment. Under this rigid and inflexible approach to custody matters, a person seeking change of custody had no hope unless it could be first established that there were bad circumstances in the child's custodial situation. In our view, the double burden rule has been abandoned in favor of the approach that the courts must seek, above all else, the welfare of the child. Compare Bourque v. Leger, 322 So.2d 784 (La.App. 3 Cir. 1975). See also Hilliard v. Richard, 291 So.2d 875 (La.App. 3 Cir. 1974) and Cramer v. Mowery, 346 So.2d 331 (La.App. 4 Cir. 1977).
In the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) the Supreme Court laid out four legal principles to be considered in appellate review of custody cases which may be summarized as follows:
(1) The paramount consideration is the welfare of the child.
(2) Generally, the welfare of the child is served by granting custody to the mother, especially a child of tender years.
(3) When the trial court has made a considered decree of permanent custody in light of principles one and two the party seeking to change the custody bears a heavy burden.
(4) On appeal, the trial judge's decision in custody matters is entitled to great weight.
In reviewing the trial court's decision to return the custody of Niki to her mother, as measured by the four Fulco principles, we make the following observations:
Principle 1 Welfare of the Child
The trial court stated that its primary concern was the welfare of the child and it is very difficult to argue successfully against the idea that a 21/2 year old female child, who has been in the custody of her mother all her life except for two months and fifteen days, should be with her mother. In the present case, expert testimony to this effect was given by Dr. Ronald Pryer, chief psychologist at Central Louisiana State Hospital, who had not examined or tested Niki, but gave testimony based upon hypothetical questions.
The present case fits precisely; a child of tender years should be placed with the mother.
As noted above, we do not believe the so-called "double burden" still prevails in Louisiana as a rigid and inflexible rule. In the present case, the trial court apparently concluded (and if he did not do so, the record establishes) that the mother met the burden of proving that the child should not be left with the father. How "heavy" a burden the applicant for a change in custody must carry will vary from case to case. We do not hold that a child's custodial circumstances and the length of time in a home are totally irrelevant. Obviously, a court would be reluctant to change the custody of a happy child who has been in one parent's home for three or four years. But returning a child to her mother after only a brief time with the father does not require the showing of deleterious circumstances other than that of being deprived of the mother's care and companionship which she had known most of her life.
It is true that the trial court here did not find anything deleterious in the environment furnished the child by her father. The principles of Fulco are not prescribed as absolute and this rule, in our opinion, must bow to the first and second principles in this particular case.
This court on review of custody cases gives great weight to the conclusions of the trial judge. The trial court did not err in the instant case.
Thus, the return of Niki to the custody of her mother meets three of the principles established by Fulco. The third principle, involving the heavy burden, must bow to the others. In matters so difficult of determination as child custody, rigid and inflexible rules can serve only to defeat the ends of justice and do not serve the welfare of children.
The judgment of the trial court is affirmed for the reasons stated.
Costs are taxed against appellant.
AFFIRMED.
This appeal arose from a rule to show cause why custody of two and one-half year old Niki Bushnell should not be returned to her mother, Linda Cheek Bushnell. The custody previously had been permanently awarded to the father, Harry M. Bushnell, in connection with the divorce awarded to the mother on the basis of living separate and apart for one year and sixty days from the time of legal separation. The trial judge made the change of custody to the mother after a two day trial on the rule. I would reverse that decision and order that custody be returned to the father.
Harry and Linda Bushnell were married on February 12, 1972, in Rapides Parish. On March 20, 1974, Allison Nikole (Niki) Bushnell was born. Harry Bushnell filed suit for a legal separation on the grounds of abandonment on February 20, 1975, and was awarded the separation. He agreed to the award of custody of Niki to the mother.
After a year and sixty days from the judgment of separation Linda Bushnell filed suit for divorce. She was awarded the divorce, but on a rule to show cause why custody should not be granted to him, Harry Bushnell was awarded permanent custody of the child. Although the rule was uncontested by the mother, the father presented evidence that his former wife had been living with a man for some four months in the...
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