Monteleone v. Monteleone

• Decision Date: 11 December 1991
• Docket Number: No. 89-CA-2216,89-CA-2216
• Citation: 591 So.2d 1228
• Parties: David G. MONTELEONE v. Erin Ann Collins MONTELEONE.
• Court: Court of Appeal of Louisiana — District of US

Page 1228

591 So.2d 1228

David G. MONTELEONE v. Erin Ann Collins MONTELEONE.

No. 89-CA-2216.

Court of Appeal of Louisiana,

Fourth Circuit.

Dec. 11, 1991.

Harry R. Cabral, Jr., Cabral & Cabral, Metairie, for plaintiff-appellant.

Terence L. Hauver, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, for defendant-appellee.

Before BARRY, WILLIAMS and PLOTKIN, JJ.

PLOTKIN, Judge.

Appellant, David Monteleone, contends the trial court erred in denying his rule to change custody. We disagree and, therefore, affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

Erin and David Monteleone married on June 27, 1975. Their marriage produced one child, Christina, who was born on November 23, 1979. The Monteleones physically separated in May, 1986.

David filed for divorce on September 30, 1987. His petition requested that the parties be awarded joint custody with Erin "being designated as primary, physical custodial parent, subject to liberal and reasonable visitation by David" and asserted that he voluntarily agreed to pay the sum of $800 a month child support plus the child's school tuition and registration fees. Following a hearing, the Monteleones were divorced on December 23, 1987, based on their living separate and apart, without reconciliation, for a period in excess of one year. The judgment ordered David to pay child support in the sum of $800 a month and the child's tuition and registration fees. Joint custody was awarded to both parties, with Erin designated as primary, physical custodial parent.

By consent judgment of April 4, 1988, Erin accepted $1500 in return for her waiver of any rights she may have had to a nullity action arising from the judgment of December 23, 1987. The April 4th consent judgment ratified and confirmed the terms and conditions of the December 23, 1987 judgment.

On July 2, 1988, three months after the consent judgment was signed, David remarried. Five months after the consent judgment was signed, David filed a rule to change custody on August 31, 1988. The rule requested that David be awarded sole custody of Christina and be declared her physical domiciliary parent for the following reasons:

1. Erin "is emotionally and mentally unstable and is possibly dangerous to both herself and to the welfare of the minor child;"

2. Erin "is guilty of habitual intemperance on a daily basis and is in dire need of treatment for said disorder, all of which justifies an award of custody to mover herein;"

3. Erin "has been derelict and irresponsible in the care and rearing of the minor child, in properly feeding the child, in properly clothing the child for school, and has generally neglected all the normal duties that a fit parent should be held accountable for in rearing a minor child;"

4. Erin "is further guilty of failing to provide the social interaction required between a mother and its child to stimulate normal behavioral patterns conducive to the proper development of a healthy and normal child;" and

5. Erin "has been negligent in the educational support required on behalf of the minor child and as a result the minor child has been forced to repeat the first grade at MeGehee School, all of which is contrary to the best interest of the minor child."

The rule further asserted that David had remarried and his wife was capable of and willing to rear Christina on a fulltime basis and that a psychological evaluation of Christina had been conducted at Ochsner which showed her welfare and well being was deteriorating as a result of being in the care, custody and control of her mother. In the alternative, the rule requested that if he was denied sole custody, that child support payments be reduced from $800 to $250 a month because he and his wife were expecting a child and Erin had become gainfully employed.

Trial on the merits of the rule was held on March 14, 17 and 23, 1989. Elaborating on the allegations he raised in his rule for custody, David testified his allegation that Erin is mentally unstable is solely based upon her intemperance and is founded upon her drinking habits as he knew them prior to the divorce and initial custody judgment. ¹ He testified his allegation that Erin is emotionally unstable is based on her inability to keep her house clean. He also admitted that, during their marriage, she never cleaned the house. He admitted he has not seen the inside of her home since July of 1987. David testified his allegation that Erin is dangerous to herself and to her child is based upon Erin's sleeping habits. He said she "wouldn't wake up to a fire in the middle of the night," but he admitted the allegation is founded upon her sleeping habits as he knew them during their marriage.

David testified his allegation that Erin is derelict in feeding Christina is not a current problem. He said his allegation that Erin fails to provide Christina with proper social interaction is partially based on Erin's choice of summer camp and partially on her not allowing Christina to have overnight guests. He admitted, though, that even during their marriage Erin never allowed overnight guests. He testified his allegation that Erin is negligent in the educational support of Christina is based on Erin's failure to help Christina with her homework and to read to her at night. He also admitted those problems existed during their marriage and prior to the initial custody judgment. Regarding his accusation that Erin did not keep Christina or her clothes clean, David admitted that his daughter's teachers at McGehee had never raised such a complaint and that he never told Erin that Christina's shoe was missing at Thanksgiving of 1988. He also admitted the Ochsner reports and psychological evaluations do not support his allegation that the welfare and well-being of Christina is deteriorating as long as she is in the care, custody and control of her mother.

David and his mother, Ruth Monteleone, testified that during the summer of 1988, she saw Christina playing on Canal Boulevard with two friends, several blocks away from Erin's home. They both testified they thought Christina should not play on the boulevard or in City Park. He admitted, though, that he never told Erin about the incident. David testified that during his marriage to Erin, his mother warned them both about Christina having a hereditary hearing problem, but neither of them acted upon her advice. After the divorce, Erin arranged for Christina's ear operation.

David admitted that during the 1985-86 school year, Christina did very well academically at McGehee school. He and Erin separated in May of 1986. At the end of the following school year, 1986-87, Christina was retained in the first grade due to her immaturity. Based upon her retention in the first grade, on his mother's recommendation, David said he and his mother had Christina evaluated at Ochsner. He admitted he did not initially tell Erin about the evaluations, but said she learned about them prior to their completion in September of 1987.

The Ochsner recommendation was for Christina to attend Crescent Academy and have counseling. He testified he and Erin jointly decided to keep Christina in McGehee because she had already begun a new school year. David said he and his fiancee arranged, in January of 1988, for Christina's psychotherapy counseling under Mrs. Stavros. He said he did not immediately inform Erin about the counseling sessions. He further admitted he informed Mrs. Stavros that Erin was not interested in taking part in the sessions, was inconsistent and was disorganized, and that she drank every evening and yelled at Christina. He said Christina's grades for her repeated year of first grade, 1987-88, were all A's except in mathematics. David testified he took Christina to St. George's Episcopal School, where she attends the second grade, without first informing Erin. He testified Christina was the poorest reader in her second grade class, but she was progressing. He also admitted his maid told him Christina had been wetting the bed with increased frequency and her bed-wetting correlated in time with when he informed her about the rule for change of custody.

The court's appointed psychologist, Dr. Brian Keith Jordan, testified about his individual psychological evaluations of the mother, father, stepmother and child. He also testified he reviewed Ochsner's 1987 psychological evaluation of Christina's educational system and the note summaries of Christina's treating social worker, Mrs. Stavros. He admitted David arranged for him to have the Ochsner reports and the notes of the social worker prior to his evaluation of Erin. He also said he was aware that Erin was the primary parent in the Monteleone's joint custody arrangement, but admitted he nevertheless contacted David about arranging his additional sessions with Christina.

Dr. Jordan testified that he was concerned about Erin's denial of the existence of Christina's diagnosed problems. He based this concern upon multiple comments he found in the Ochsner report, "specifically her reaction to Dr. [Aden Burka], as he quoted in 1987 that Mrs. Monteleone was 'taken aback' at his findings," and upon the comments of the social worker, Mrs. Stavros. Dr. Jordan said he also discussed with Erin Christina's ongoing learning disability, but she showed no indication of understanding it. Consequently, he felt her parenting skills were limited.

While testifying, Dr. Jordan diagnosed Christina as having dyslexia, a neurologically based disorder. Dr. Jordan admitted, though, that Ochsner had not diagnosed Christina as dyslexic and Erin had no prior knowledge about this on-the-stand diagnosis. Commenting on Erin's failure to affirmatively act upon the Ochsner recommendation, Dr. Jordan testified "that a parent who cares transcends their hostility, or suspiciousness of the party who brought the child in." He said the parent either respects the doctor's findings and makes further inquiries about the diagnosis or,...