Carlson v. Carlson
| Decision Date | 07 May 1962 |
| Docket Number | No. 177,177 |
| Citation | 140 So.2d 801 |
| Parties | Edward C. CARLSON v. Vara Bonita KEATHLEY, wife of Edward C. CARLSON. |
| Court | Court of Appeal of Louisiana — District of US |
Edward F. Wegmann, New Orleans, for plaintiff-appellant.
Robert J. Oster, New Orleans, for defendant-appellee.
Before YARRUT, JOHNSON and HALL, JJ.
Following judgment of final divorce obtained by the husband, in which the custody of their two minor daughters was awarded to his wife, the former has taken this appeal from the custody award. The parties will be referred to herein as 'father' and 'mother,' because there is no dispute between them as husband and wife, only as father and mother regarding custody of their children.
This litigation began in May, 1957, when the father brought suit for separation from bed and board on ground of desertion, which he obtained without contest by the mother. The separation proceedings terminated when the father, on August 15, 1960, obtained a final divorce, in default of a reconciliation; and the mother obtained final custody of their children.
During the period from May, 1957, the institution of the suit for a separation, to final judgment of divorce on August 15, 1960, the parties were in court prosecuting or defending rules for custody, injunctions, contempt, etc., too numerous to detail. However, in each instance the custody was finally awarded the mother, with right of visitation granted to the father.
The father bases his appeal from the custody award to the mother on two grounds:
(1) That she has taken the children with her to live in New York, out of the jurisdiction of the court; and,
(2) That she had abandoned the children to him for 18 months.
On the first charge, we find that the matter was tried before the district court, who found no objection to the children being taken to New York. A similar situation was approved by our Supreme Court in the case of Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321, wherein the court held that our courts are governed primarily by divorced spouses' minor children's welfare and best interests in determining whether to grant spouse awarded children's custody the permission to remove them to another state for residence.
The reason for the mother living in New York is because she found it necessary to earn a livelihood for herself and children in the only capacity she could, to-wit, a photographic model for Television and other commercials, at which she earns far more than the father. She had no other business or professional training, but as a young child she modeled children's clothes.
There is no evidence that she is neglecting the education, religious or physical welfare of the children in pursuance of her photographic modeling profession.
The father repeatedly admitted under cross-examination that the mother was thoroughly capable and competent to handle the children; for example:
Regarding the charge that she abandoned the children for 18 months to the father, the record shows that the mother, sick and distressed over her marital difficulties, took the children with her to her home in Texas to live with her mother. Unable to earn a living there, she decided to take up modeling in New York; so voluntarily gave the custody to the father while she went to New York. While in New York she kept in touch with the children and their welfare, periodically inquiring and contacting them by letter and telephone.
When she succeeded in her modeling and was able financially to take care of her children again, she regained custody, but not without a contest in court.
On the question of her abandonment, the recitals above show clearly that the mother, to her distress and solely in the interest and welfare of the children, voluntarily gave the temporary custody to the father.
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Sachse v. Sachse
...aforesaid restriction was not therein contested by the party to whom restricted custody was granted. The recent decision of Carlson v. Carlson, La.App., 140 So.2d 801, simply recognizes the general rule that custody is determined in the light of the best interest and welfare of the child in......
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Pattison v. Pattison
...custody to remove the children from the jurisdiction of the court. Wilmot v. Wilmot, supra; Wheeler v. Wheeler, supra; Carlson v. Carlson, La.App., 140 So.2d 801; Fayard v. Fayard, La.App ., 181 So.2d 304. We have found only one case in our jurisprudence which forbade the party having custo......
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Fayard v. Fayard
...upon this case and the following authorities cited therein: Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Carlson v. Carlson, 140 So.2d 801 (La.App.4th Cir. 1962); 27B C.J.S. Divorce § 313; and others in support of his argument that '(i)t is against the policy of the law to permit the......
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Forde v. Sommers
...identical to the present one, courts have not permitted modification of the original custody decree. For example, in Carlson v. Carlson, 140 So.2d 801 (Ct.App.La.1962), the mother was originally awarded custody of her children but she voluntarily allowed the husband to keep the children unt......