
    Anthony Joseph VACCARO, III v. Virginia Rose Waltz VACCARO.
    No. 10807.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1979.
    John M. Coman, Jr., New Orleans, for Anthony Joseph Vaccaro, III, plaintiff-ap-pellee.
    Louis G. Gruntz, Jr., Jefferson, for Mrs. Virginia Vaccaro, defendant-appellant.
    Before REDMANN, LEMMON and BOU-TALL, JJ.
   BOUTALL, Judge.

This appeal is by a mother from an award of custody of the two minor children to their father, pendente lite ancillary to a separation proceeding. We affirm.

Anthony Joseph Vaccaro, III and his wife Virginia Rose Waltz Vaccaro separated, and he kept the physical custody of the two minor children, Anthony, age 7 and Michael, age 4. He filed suit for separation and for custody of the children. Mrs. Vaccaro filed a rule for custody pendente lite and alimony. The trial judge held that the best interest was served by awarding custody to the father, and we agree.

The evidence consists of Mrs. Vaccaro’s testimony that she is able to take care of the children, and testified that she had seen a man named Leo Trahan only occasionally and had no sexual relations with him. Opposed to this the testimony of Mr. Vaccaro and several witnesses he produced show rather overwhelmingly that Mrs. Vaccaro and Leo Trahan had been together frequently, and that she had been consistently spending the night in his apartment for some period prior to the trial. The evidence was such that the trial judge not only disbelieved Mrs. Vaccaro but felt that the testimony she gave constituted perjury. We agree with his conclusions.

Thus we are faced not only with a mother who has been living in rather open and consistent manner with someone not her husband, but coupled with her apparent false testimony given the court. On the other hand, the father is providing the family home wherein they lived, together with the care of his own mother to watch over the children while he is at work. The best interest of the children is obviously to remain with the father pending final resolution of the problems between these parties.

Accordingly, we affirm the judgment appealed.

AFFIRMED.

REDMANN, Judge,

concurring.

I subscribe to the opinion of the court except that I suggest the non-appealability within La.C.C.P. 2083 of a provisional custody order, Mertens v. Mertens, La.App. 3 Cir. 1975, 308 So.2d 508, writ refused 313 So.2d 240, and the unsuitability of slow appeal as a device to review a provisional custody order. Writ application is the appropriate path to speedy review. Considering this appeal as an application for writs I would reach the result we reach for the same reasons.  