Evans v. Lungrin

• Decision Date: 06 February 1998
• Parties: 97-0541 La
• Court: Louisiana Supreme Court

Page 731

708 So.2d 731

97-0541 La. 2/6/98

Tommy Lee EVANS v. Donna Coody LUNGRIN.

Nos. 97-C-0541, 97-C-0577.

Supreme Court of Louisiana.

Feb. 6, 1998.

E. Grey Burnes Talley, Alexandria, for Applicant in No. 97-C-0541 and Respondent in No. 97-C-0577.

Charles K. Anderson, De Ridder, for Respondent in No. 97-C-0541 and Applicant in No. 97-C-0577.

[97-0541 La. 1] JOHNSON, Justice. ^*

We granted certiorari in this child custody case to determine whether the trial court erred in awarding joint custody with four-month, alternating, split physical custody to a mother who relocated to the state of Washington and a Louisiana father. The court of appeal amended the trial court judgment to designate the child's mother as the domiciliary parent, and affirmed the trial court judgment as amended.

FACTS AND PROCEDURAL HISTORY

Relator, Donna Coody, gave birth to her daughter, Lindsay Jean Coody on April 27, 1994. On December 26, 1994, Donna Coody married Bobby Lungrin. Donna Coody Lungrin and Bobby Lungrin subsequently moved to Alabama with Lindsay. On June 30, 1994, another man, Tommy Lee Evans, filed a formal acknowledgment of paternity, claiming that he is Lindsay's biological father. In [97-0541 La. 2] response, Mrs. Lungrin filed a motion to order fertility testing, alleging that Mr. Evans had previously represented that he was sterile, and therefore, unable to father a child. Mrs. Lungrin and Mr. Evans were never married to each other. The parties consented to blood testing to determine Lindsay's biological father. The trial court issued a court order requiring the paternity test. The parties also stipulated that Mr. Evans could visit with Lindsay for two hours every other Saturday pending the test results.

As a result of the court-ordered paternity testing, it was discovered that Mr. Evans is in fact Lindsay's biological father. Since then, Mr. Evans has been attempting to establish a relationship with the child. He has paid child support and has sought regular visitation with Lindsay. On April 11, 1995 Mrs. Lungrin and Mr. Evans stipulated to joint custody, with Mrs. Lungrin as the domiciliary parent. The parties also stipulated that Mr. Evans would exercise visitation with Lindsay one week per month for nine months and alternating weeks in June, July, and August. The stipulation further provided that Mr. Evans was to pay $150.00 per month in child support and that each party would give the other sixty days' prior notice of any change in residence.

Mr. Lungrin, who is a Sergeant in the U.S. Army, was transferred to the state of Washington. Based on Mrs. Lungrin's impending move to Washington, Mr. Evans, who lives in Dubach, Louisiana, filed a rule on August 31, 1995 seeking sole custody of Lindsay. Mr. Evans also alleged that Mrs. Lungrin refused to comply with the visitation schedule, interfered with his court-ordered telephone contact with the child and was unwilling to facilitate, encourage and foster his relationship with the child. In her response to the rule, Mrs. Lungrin denied Mr. Evans' allegations and asked the court to maintain the original joint custody agreement.

[97-0541 La. 3] During the trial of the matter, which was held on December 4, 1995, Mr. Evans testified that he is able to care for Lindsay on a full-time basis because he is unable to work due to a back injury. There is no evidence or allegations that Mr. Evans' disability interferes with his care of Lindsay. Mr. Evans testified that when Lindsay is with him, he feeds her, bathes her, and puts her to sleep himself. His testimony was corroborated with the testimony of several neighbors, who testified that Mr. Evans always has the child with him and never leaves her with babysitters. Mr. Evans asked the court to award him equal sharing of the physical custody of Lindsay.

Several of Mr. Evans' neighbors also testified that Mr. Evans' home is clean and well-kept. Mr. Evans lives in a mobile home with his mother, who is of ill health. His mother's ill health however, does not prevent her from assisting with Lindsay's care. Mr. Evans' sister, Patricia Johnson, testified that she visits Mr. Evans at least twice a month. She testified that based on her observation, Lindsay is happy when she is with her father, recognizes him and calls him "Daddy", and often plays with other neighborhood children. Several neighbors confirmed that Lindsay has many playmates in the area, and that they have observed Mr. Evans and Lindsay engage in activities such as going to the zoo and riding bicycles.

In Washington, Mrs. Lungrin and her husband live in a two bedroom home with Lindsay and have visitation with Mr. Lungrin's seven-year-old son from a previous marriage. Mrs. Lungrin is also capable of caring for Lindsay on a full-time basis because she does not work outside the home. At the trial, Mrs. Lungrin's relatives and friends testified as to her superior parenting skills and described her as an "immaculate housekeeper". At the trial, Mrs. Lungrin acknowledged the fact that the stipulated visitation schedule was unworkable due to her move to the state of Washington. She was also concerned about extended [97-0541 La. 4] visitations for the child. Mrs. Lungrin testified that after the seven-day visits with Mr. Evans pursuant to the visitation plan, Lindsay had temper tantrums and would excessively cling to her. She also testified that after such visits, it was difficult to put Lindsay to sleep for about two days. Mrs. Lungrin further testified that in eight of ten visitations with Mr. Evans, Lindsay has not willingly gone with him. Mrs. Lungrin's aunt and a psychotherapist corroborated Mrs. Lungrin's testimony about Lindsay's aberrant behavior after visits with Mr. Evans.

At the trial, Mrs. Lungrin presented the testimony of Nancy DeVaney, a licensed custody evaluator in Alabama, by way of deposition. Ms. DeVaney was unable to appear at the trial of this matter due to a previously scheduled court appearance on the same date. Mr. Evans did not object to the admission of the deposition into evidence, but noted for the record that Ms. DeVaney had neither seen him, nor had any contact with him whatsoever. Ms. DeVaney holds a Doctorate degree in Clinical Social Work. She is licensed in Alabama and Florida and is registered with the Professional Academy of Custody Evaluators. She has engaged in the practice of psychotherapy for the past twenty (20) years and has been performing custody evaluations for the past ten (10) years. She has previously testified in court after being qualified as an expert in custody matters.

Ms. DeVaney testified that when a child's parents do not live within a distance which allows for frequent contact with the child, a three-month, alternating split between parents is unacceptable for a child Lindsay's age. Ms. DeVaney based her opinion on four visits with Mrs. Lungrin and Lindsay, and on literature and professional journals. Mrs. Lungrin proposed that Lindsay have four, twelve-day visits a year with Mr. Evans, with Mrs. Lungrin keeping the child every fourth night. During this time, Mrs. Lungrin would remain in Louisiana, presumably at her mother's home in De Ridder, Louisiana. The length of these visits would be [97-0541 La. 5] extended each year until Lindsay reaches kindergarten age, at which time Mr. Evans could have full summer visitation.

After trial and after taking the matter under advisement, the trial court found that equal sharing of physical custody was in Lindsay's best interest during her preschool years. Accordingly, the trial court ordered equal custody periods in blocks of four months, with Mr. Evans' visitation to commence in April, 1996. The trial court also ordered that joint custody be continued, but that neither parent be designated as the domiciliary parent. Finally, the trial court ordered visitation in favor of Lindsay's maternal grandparents one weekend each month that the child is with her father.

Mrs. Lungrin appealed, alleging that the trial court's findings had been interdicted by legal error. Mrs. Lungrin maintained that the trial court's ruling refers to former La. C.C. art. 131, which had been repealed effective January 1, 1994. Mr. Evans' initial rule for visitation was filed after this date. The court of appeal found that although the trial court cited repealed civil code provisions, the trial court nevertheless applied the revised articles. The court of appeal also found that the trial court properly awarded joint custody in that neither party proved by clear and convincing evidence that sole custody was in the best interest of the child. The court of appeal however, further found that maintaining Mrs. Lungrin as the domiciliary parent will add needed stability and continuity in Lindsay's life. The court of appeal noted that Mrs. Lungrin and Mr. Evans have already developed disagreements as to Lindsay's medical needs. The court of appeal further noted that Mrs. Lungrin has provided the majority of Lindsay's care in the past, and is the more experienced of the two parents, having already raised another child. Accordingly, the court of appeal affirmed the trial court, but amended the custody award to reinstate Mrs. Lungrin as the domiciliary parent.

[97-0541 La. 6] Mrs. Lungrin filed a writ application with this court, alleging the following assignments of error:

1. The court of appeal erred in affirming the trial court's award of four-month, alternating split custody to a Washington mother and a Louisiana father;

2. The court of appeal erred in finding that the trial court judgment was not interdicted by legal error;

3. The court of appeal erred in affirming the trial court's disturbance of the consent decree of joint custody because Mr. Evans failed to meet the burden of proof for change of custody in that he failed to demonstrate that the [proposed] plan would be in the best interest of the child; and

4. The court of appeal erred in affirming the trial court irrespective of its failure...