Heymann v. Lewis

• Decision Date: 15 June 1979
• Docket Number: No. 6995,6995
• Citation: 414 So.2d 787
• Parties: Herbert HEYMANN v. Carolyn Cecile LEWIS.
• Court: Court of Appeal of Louisiana — District of US

Page 787

414 So.2d 787

Herbert HEYMANN v. Carolyn Cecile LEWIS.

No. 6995.

Court of Appeal of Louisiana, Third Circuit.

June 15, 1979.

On Rehearing Nov. 12, 1979.

Reggie, Harrington & Boswell by Oscar W. Boswell, II, and Edmund M. Reggie, Crowley, for defendant-appellant.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell by Joseph Onebane and Daniel G. Fournerat, Lafayette, for plaintiff-appellee.

Before CULPEPPER, WATSON, SWIFT, STOKER and DOUCET, JJ.

WATSON, Judge.

This is the appeal of a judgment changing custody of two girls from the mother to the father. The principal issue posed is whether the best interests of the children require that the custody be changed.

Herbert Heymann and Carolyn Cecile Lewis (sometimes referred to as Ms. Heymann) were married on February 20, 1948. Of their union, three children were born, but the eldest, Claire, is not involved in these proceedings except as a witness.

The custody of the two younger children, Lila Rosamond, age 12, and Joan Germaine, age 11, is disputed in this rule proceeding.

The Heymanns were separated by judgment of October 7, 1977, which granted a separation in favor of Herbert Heymann, but awarded custody of Lila and Joan to Carolyn Cecile Lewis while reserving "broad and reasonable visitation rights" to the father. (TR. 145-146).

Much of the suit record is composed of proceedings relative to the substantial properties owned by the parties. There is no indication that evidence was taken concerning the custody of the children, and apparently, the allocation of their custody to the mother in the judgment of separation was by agreement. Thus, the custody disposition was not a "considered decree" within the contemplation of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

On June 1, 1978, Herbert Heymann filed a rule against his separated wife to show cause why custody should not be changed to him, alleging that Carolyn Cecile Lewis had failed to provide a stable homelife for the children; that she had exposed them to improper influences; that she was not a fit person to rear the children; and that their best interests would be served by placing them in his custody. (TR. 339).

The rule was tried with the presentation of several witnesses on behalf of each party. ¹

The trial court, stating that it was applying the amended ART. 157 OF THE CIVIL CODE² in accordance with the case of Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La., 1978), (which states that the courts must look less to the jurisprudence and more to the legislative will), entered an order changing custody from the mother to the father, reserving "broad visitation rights" to the mother. (TR. 445-446). The mother has appealed.

No purpose would be served by reviewing, in detail, the testimony presented for the reason that much of it had little or no relevancy to the custody issue. However, we will summarize the evidence as follows:

Carolyn Cecile Lewis was cross-examined at length concerning her trips in connection with her antique business and her encounters with one Jerry Garner, a merchant seaman, in whom she had a romantic interest. However, the trial court found, and we agree, that "... There is no testimony whatsoever of an adulterous relationship between Mr. Garner and Ms. Heymann and no evidence of any impropriety in front of the children." (TR. 444).

Mr. Heymann testified that his principal objection to his separated wife's having custody was that he did not like some of her friends. He admitted that he also had a romantic interest, one Janice Ingham, who had been on skiing trips with him.

The eldest Heymann child, Claire, and her separated husband, William Clark, testified in favor of Mr. Heymann.

Certain of William Clark's testimony related to an unlawful substance which Mr. Heymann testified he found in Ms. Heymann's purse while Clark was present. While testimony was adduced as to the nature of this substance, no mention was made by the trial court concerning this topic in the reasons for judgment. We perceive no reason to assign weight to this testimony.

One witness testified as to the use of bad language by James Garner, who incidentally did not testify.

Two witnesses, longtime friends of the family, a Ms. Cashere and a Ms. Miciotto, stated their opinion that Ms. Heymann takes very good care of the two young girls and that they would be in a better situation under her continued custody than that of Mr. Heymann.

While this court recognizes that much weight is to be given the trial court's judgment in matter of custody, we find no basis whatsoever for the change of custody in the present case. This court ³ has taken the position that the so called "double burden" rule of Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955), has been severely limited, if not entirely abrogated. Bushnell v. Bushnell, 348 So.2d 1315 (La.App. 3 Cir. 1977); Bourque v. Leger, 322 So.2d 784 (La.App. 3 Cir. 1975). Nevertheless, a litigant who demands a change in custody must prove his case, that is, he must make a showing that the best interests of the child or children require that the custody be changed. Absent such a showing, the litigant's demands must be rejected.

There is nothing in the present record that establishes a reason for making a change; in fact, the contrary appears. It was established that these are girls of an age approaching puberty. They have always lived with their mother. These circumstances alone strongly militate for the continuation of their care, custody and control by the mother. The present record indicates that in their mother's custody they will continue to live in the same familiar surroundings in which they have always lived. They enjoy regular and frequent visitation with Mr. Heymann.

Analyzed under the wording of Civil Code Article 157, quoted at footnote (2) supra, which is that custody is to be awarded in "the best interest of the child or children", the record does not support the judgment in favor of Mr. Heymann. The only two disinterested witnesses supported the mother. The eldest daughter favored Mr. Heymann because she finds her mother's boyfriend "crude". (TR. 667). The age and sex of the children favor the mother's custody. As loath as we are to disagree with our esteemed brother of the trial court, we find he clearly erred in awarding custody to Mr. Heymann. The evidence simply does not support the conclusion that their best interests lie in being in their father's custody.

Therefore, the judgment of the trial court is reversed and set aside. The provisions of the judgment of October 7, 1977, awarding the custody of Lila Rosamond Heymann and Joan Germaine Heymann to Carolyn Cecile Lewis Heymann, together with all other incidents of the said judgment, are reinstated.

Costs of these proceedings, at trial and on appeal, are taxed to Herbert Heymann.

REVERSED AND RENDERED.

DOUCET, J., dissents and assigns written reasons.

CULPEPPER, J., dissents for the reasons assigned by DOUCET, J.

DOUCET, Judge, dissenting.

The principles governing custody awards were set forth by our Supreme Court in the following language from the opinion in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971):

"(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958) and jurisprudence therein cited; see also Moosa v. Abdalla, 248 La. 344, 178 So.2d 273.

"(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Drouin v. Hildenbrand, 235 La. 810, 105 So.2d 532 (1958); Boatner v. Boatner, 235 La. 1, 102 So.2d 472 (1958); Tullier v. Tullier, 140 So.2d 916 (La.App.1962) (citing numerous decisions of this court to such effect).

"(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); Nugent v. Nugent, 232 So.2d 521 (La.App.1970) (citing numerous court of appeal decisions to such effect).

"(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238 La. 691, 116 So.2d 296 (1959); Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952)."

The issue of the continued viability of the "maternal preference rule" set forth in paragraph (2) of the above quote has aroused much debate before both this court and the trial court. The majority notes that the trial court stated that it was applying amended Article 157 in accordance with Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La.1978). It is clear from a reading of the trial court's written reasons for judgment that it did not consider the maternal preference rule to be...