Murphy v. Murphy
| Decision Date | 22 February 1983 |
| Docket Number | No. 15180-CA,15180-CA |
| Citation | 427 So.2d 1278 |
| Parties | Richard G. MURPHY, Plaintiff-Appellee, v. Patricia F. MURPHY, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Francis M. Gowen, Jr., Shreveport, for defendant-appellant.
Barry E. Edwards, Shreveport, for plaintiff-appellee.
Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
The wife-mother appeals from a judgment of the district court rendered after trial of rules to show cause ancillary to a separation proceeding awarding "temporary" custody of the two minor children of the marriage to the husband-father. For the reasons expressed in this opinion, we affirm the judgment of the district court.
On March 30, 1982 Richard G. Murphy filed a petition seeking a separation on the grounds of cruel treatment. Alleging that the children, a daughter eight years old and a son seven years old, were living with him at the home of his parents, petitioner prayed for an ex parte order granting him provisional custody of the children and that a rule issue ordering Mrs. Murphy to show cause why he should not be granted custody of the children during the pendency of the separation proceeding. An ex parte order granting provisional custody was signed by a district judge and a rule issued. Mrs. Murphy filed an answer generally denying the allegations of plaintiff's petition, and a reconventional demand for a separation on the grounds of abandonment and for custody of the children during the pendency of the litigation, pursuant to which a rule was issued ordering Mr. Murphy to show cause why pendente lite custody should not be granted to Mrs. Murphy.
Trial of the rules commenced on April 8 and was concluded on May 6 after six days of testimony. For reasons orally stated, judgment was rendered awarding Mr. Murphy the "temporary" care, custody, and control of the children pursuant to LSA-C.C. Art. 146, subject to reasonable rights of visitation granted to Mrs. Murphy. From a judgment signed on May 17 Mrs. Murphy appealed.
In the normal course of the appellate process, the appeal was submitted for decision in this court on January 17, 1983 and the opinion of this court is scheduled to be handed down on February 22, one month short of a year since the litigation commenced.
Mr. and Mrs. Murphy were married in 1971. Until their separation they lived in a home in the Southern Hills area of Shreveport. Mr. Murphy is a railroad brakeman and has been the breadwinner for the family, earning in excess of $20,000 per year. His job has required him to work out of town frequently over the years, and for a considerable period of time prior to the separation he worked the night shift, leaving home about 7:00 in the evening and working until late at night or early in the morning. His working hours require that he sleep during the day.
After the children were born Mrs. Murphy assumed the role of housewife and homemaker with primary responsibility for taking care of the children. She did the usual household tasks, cooking, cleaning, washing, and the like. Additionally, she did the things that mothers ordinarily do in raising children, teaching them to ride bikes and to skate, taking them horseback riding and to play putt-putt, taking the daughter to dancing lessons and participating with her as a Brownie leader, organizing neighborhood games, attending school carnivals, taking the children to the doctor and dentist, and taking the children to Sunday School on a fairly regular basis.
Likewise, Mr. Murphy did the things a working father ordinarily does with his children, going on family vacations in the summertime, helping his daughter with her math homework in the afternoons, taking his son fishing, and the like.
The Murphys had close relationships with other members of their family. For many years the children spent at least two weekends a month with Mr. Murphy's parents who live in the Cedar Grove neighborhood which is also in the southern part of Shreveport. Mrs. Murphy's parents live close by in Southern Hills and Mrs. Murphy and her children frequently visited there. Mrs. Murphy and her husband's sister were best friends.
In November 1981, Mrs. Murphy, who had driven a school bus as a substitute driver, took on a regular route. She worked from 6:30 to 9:00 in the morning and from 1:30 to 4:00 in the afternoon. Mr. Murphy started preparing the children's breakfast and getting them off to school.
There is nothing in the extensive testimony in this case to indicate that, up until a few months or a year prior to the separation, the Murphys were anything other than good parents leading a fairly typical life and meeting their respective responsibilities to their family and children.
The testimony at trial of the custody rules centered primarily on the home situation over the several months preceding the separation, and particularly on Mrs. Murphy's actions and conduct during this time. Testifying for the father were his sister, the eight-year-old daughter, his mother, his father, and his sister's husband. Testifying for Mrs. Murphy were two or three friends and neighbors, a neighbor's daughter who babysat for her, her two sisters, and her mother and father. The potential for bias among the witnesses for both sides was high and evident. Mr. Murphy and his witnesses attempted to portray Mrs. Murphy as an incompetent housekeeper who did not properly attend to cleaning the house or cooking, and as being away from home too often at night while Mr. Murphy was working. Mrs. Murphy and her witnesses attempted to portray Mr. Murphy as an overly-strict disciplinarian and as spending very little time with his children because of his work--sleep schedule and because of his hunting and fishing activities.
The essential theme upon which most of the testimony centered, as well as that which the trial court found as pivotal in making its determination, concerns the frequenting of local taverns by Mrs. Murphy with both men and women friends in the year or so immediately preceding this suit for separation. There was considerable conflict in the testimony as to the frequency of her attendance at lounges, and the frequency of out-of-town trips Mrs. Murphy made to Houston to visit a lady friend there.
It is clear from the evidence, particularly Mrs. Murphy's own testimony, that she had become disenchanted with her marriage and felt she was in a rut. She began going on a frequent basis at night after the children went to bed, to a lounge known as John Henry's, leaving the children with a babysitter, usually the girl who lived next door, or leaving the children with the grandparents on the weekend. The frequency of her going out is not clearly established by the evidence but it probably was as often as three or four nights a week. Sometimes Mrs. Murphy would come home at 9:00 or 10:00 at night and sometimes it was later. While at the lounge she would visit with friends, both male and female, and on one occasion shortly prior to the separation Mr. Murphy went to the lounge and saw Mrs. Murphy sitting on the lap of and hugging a male friend.
Mrs. Murphy's explanation of this conduct was that she felt in a rut and that she wanted to be with some people who smiled for a change. She testified that although this may not have been ladylike she did not see anything wrong with it. She also testified, however, that she had not been to the lounge since the legal proceedings were started and that if given custody of the children she would not go back. She denied that there was ever any sexual misconduct with any of the men she met or visited with at the lounge and there is no evidence in this record to support any finding of sexual affairs or misconduct on her part. However, even Mrs. Murphy's witnesses testified that they considered the described activities of Mrs. Murphy, of which they were unaware, improper.
After Mr. Murphy learned of this conduct on the part of his wife and after he apparently listened to some tape recordings of some of her telephone conversations with friends, he took the children and moved in with his parents, and filed suit for separation and custody.
In oral reasons for judgment stated at the conclusion of the trial the court noted the difficulty of deciding custody cases. The court noted that there is no longer a preference or presumption in favor of the mother and that the sole basis for determining custody is the best interest of the children. The court made the following findings:
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...Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Stuckey v. Stuckey, 276 So.2d 408 (La.App. 2d Cir.1973); Murphy v. Murphy, 427 So.2d 1278 (La.App. 2d Cir.1983). The trial court found it would be in the child's best interest to grant sole custody to the father. Appellant elected not to h......
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...judge's determination of custody must be accorded great deference. 2 Bagents v. Bagents, 419 So.2d 460 (La.1982); Murphy v. Murphy, 427 So.2d 1278 (La.App. 2d Cir.1983). This rule of appellate review also applies to his determination of alimony and child support. Lamb v. Lamb, 427 So.2d 899......