Turner v. Turner
| Decision Date | 10 September 1984 |
| Docket Number | No. 84-C-0557,84-C-0557 |
| Citation | 455 So.2d 1374 |
| Parties | Emile L. TURNER, Jr. v. Helen Ruth Gubbels TURNER. 455 So.2d 1374 |
| Court | Louisiana Supreme Court |
Thomas M. Young, New Orleans, Harry R. Cabral, Jr., H. Craig Cabral, Cabral & Cabral, Metairie, for plaintiff-applicant.
A.D. Freeman, Satterlee, Mestayer & Freeman, New Orleans, for defendant-respondent.
Emile and Helen Turner were divorced in January, 1980. The divorce decree gave custody of the couple's minor children, including the twin boys who are now nearly eight years old, to the mother. Since that time, numerous rules have been filed in the trial court which sought to change the original custody order; many changes have, as a result, been made. The most recent order, dated April 27, 1983, provides for joint custody of the boys for one year periods, alternating each year on July 15. The non-custodial parent is granted holiday and other visitation privileges. The father appealed the joint custody order and the court of appeal affirmed the ruling of the trial court. Turner v. Turner, 445 So.2d 35 (La.App.1984). From that affirmance the father applied for a writ of certiorari, which we granted. Turner v. Turner, 449 So.2d 1342 (La.1984). A motion for a stay of the April 27 judgment, filed by the mother--the custodial parent at the time of oral argument before this court--was filed in this court immediately before argument, and was denied. We reverse.
On March 22, 1979 Emile Turner filed a petition for separation from Helen, his wife of twenty years. The husband left the marital domicile some time earlier, and listed in his petition several reasons for his leaving, including "constant criticism regarding the handling of the children." In August, 1979 plaintiff supplemented his petition, and, alleging that he and his wife had lived separate and apart for more than one year, converted the prayer into one for divorce. The judgment of divorce was rendered in January, 1980.
Later, following the divorce, Helen Turner was judicially committed to a psychiatric hospital in Dallas, Texas; since her release she has been taking medication and undergoing regular therapy to help control her condition. Emile has remarried, and now lives with his new wife and her children by a former marriage.
From the time of the filing of the original petition the parties have been in court frequently. Emile Turner has filed several rules for contempt against Helen, alleging, inter alia, that Helen harassed him and his employees at his place of business, that she improperly moved back into the community domicile, and that she violated several court orders relating to visitation rights and child custody.
Of importance in this case is the history of the child custody arrangements which have been established by the trial court. Initially, after the filing of the original petition for separation, the parties entered into a consent judgment whereby the mother was given temporary custody of the minor children. The judgment of divorce made the custody permanent, subject to the visitation rights of the father. After Helen's commitment to the mental facility, the father obtained provisional custody of the children during her stay at the institution. Later, while the mother remained at the institution on a voluntary basis, the father moved to obtain permanent custody of the children. The request was granted. Upon her release, the mother was granted visitation rights by the father--not by court order--but the father later charged that the mother violated her privileges. The court, in the summer of 1981, fixed the mother's visitation rights. As part of that order, Helen Turner was allowed to visit the children between the hours of 9:00 a.m. and 6:00 p.m. at the former marital domicile, which, by the same court order, was exclusively the father's residence. Shortly thereafter, the father sought a restraining order against the mother; she had returned to the former marital domicile and refused to leave, keeping up a pretense of maintaining a family environment. The court ordered Helen to vacate the premises. Later in 1981, another rule for contempt was filed against the mother, claiming that she continued to remain at the house, in violation of the earlier court order.
The mother sought to regain the custody of her children by filing a rule in January, 1982. The trial court, with a new judge sitting, held the matter open pending an environmental investigation. The report was completed, but because the trial judge chose not to let the parties examine it, it was not made a part of the record.
In April, 1982 the father remarried, and he and his children took up residence with his new wife and her children by a previous marriage. In July the mother sought a temporary change in custody pending a final decision on the request for a permanent change. In response, the father again sought to establish the mother's visitation rights. The court ordered that the mother could visit the children on alternate weekends, and between 3:00 and 7:00 p.m. on Tuesdays and Thursdays. In November, 1982 the judge rendered a final judgment on the January request, denying the mother's request for custody. In December, the judge ruled on the visitation issue, and increased the mother's visitation rights to include all night on Tuesdays and Thursdays.
In the early part of 1983 the father filed a rule to abolish the overnight visitation during the school year which had been granted to the mother, arguing that such activity was detrimental to the children. The mother answered the rule with one of her own: pursuant to La.Acts 1982, No. 307, Sec. 1, the mother sought a judgment of joint custody of the children. In March the trial court, with yet another judge sitting in the case, granted joint custody to the parents. The basic award was that the father would have physical custody of the children during the school year, and the mother would have custody during the summer months. Both parties applied for a new trial, which the trial court granted, stating that a new trial would have been granted in the matter of its own motion. As a result of the new trial, the judge modified his judgment. The April, 1983 custody award continues the joint custody arrangement, but instead of splitting the year into two parts, the trial judge awarded physical custody of the children to the parents for alternating one year terms, commencing with July 15, 1983. Each parent thereafter would have physical custody of the twins for a full year, subject to the visitation rights of the other parent: three weekends each month, plus alternating holidays. It is from that custody award which the father appealed.
The court of appeal ruled that the trial court was correct in its judgment, and that it did not abuse its discretion in making such a custody award. From that judgment, the father alone sought writs from this court.
According to C.C. 157, 1 as amended, "[i]n all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146." Article 146 2 provides:
"A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
(1) To both parents jointly. The court shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. A plan of implementation shall allocate the time periods each parent shall enjoy physical custody of the children and the legal authority, privileges and responsibilities of the parents. The plan may also include such considerations as the following:
(a) Designation of the child's legal domicile.
(b) Rights of access and communication between the respective parents and the child or children.
(c) Child support....
(d) Any other matter deemed in the best interest of the child or children.
(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent's sex. The burden of proof that joint custody would not be in a child's best interest shall be upon the parent requesting sole custody.
(3) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
(4) To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.
* * *
C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.
(1) However, the parents may agree to any award of custody to one parent.
(2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the...
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