Davis v. Davis
| Decision Date | 09 November 1959 |
| Docket Number | No. 44701,44701 |
| Citation | 238 La. 293,115 So.2d 355 |
| Parties | Charles L. DAVIS, Jr. v. Leona Beatrice Bartley DAVIS. |
| Court | Louisiana Supreme Court |
Love & Rigby, Shreveport, for plaintiff and applicant for writs.
McClendon & Benton, Minden, for defendant and respondent.
Plaintiff, Charles L. Davis, Jr., having been judicially separated from the defendant, Leona Beatrice Davis, instituted suit for absolute divorce on the ground of adultery and for custody of the children of the marriage. Defendant answered denying the allegations of plaintiff's petition and, by reconventional demand, prayed for a divorce, also on the ground of adultery or, in the alternative, of having lived separate and apart for a period of one year following the separation from bed and board; for custody of the children and alimony for their support. A trial by jury on all issues having been granted by the district judge at defendant's request and plaintiff's motion to set aside such order having been overruled, plaintiff applied for and was granted alternative writs of certiorari, prohibition and mandamus, with a stay order.
The right to trial by jury in civil cases, although not constitutionally guaranteed,1 is nevertheless recognized in All civil cases except those excluded by law.2 A suit for divorce does not fall into any of the categories of cases thus excluded,3 and we have found no law,4 nor has plaintiff cited us to any,5 which would warrant our denying a jury trial on the question of divorce. From the fact, however, that the right to trial by jury obtains in cases involving a divorce, it does not necessarily follow that the same right exists with respect to the issues of custody of the children born of the marriage and alimony for their support. While these issues are incidental to and arise out of the main demand, they are nevertheless matters to be tried and determined by the judge without the intervention of a jury for under the express provisions of Article 157 of the Civil Code '* * * the children shall be placed under the care of the party who shall have obtained the * * * divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party * * *.' Moreover, the jurisprudence in this state is well settled that such judgments are never final,6 being subject to modification by the judge in summary proceedings instituted by either party, which proceedings under the express terms of Article 757 of the Code of Practice '* * * are decided without the intervention of a jury.'
For the reasons assigned, the writs herein issued are made peremptory. The ruling of the trial judge denying plaintiff's motion to set aside the order authorizing a trial by jury, insofar as the issues of custody of the children and alimony for their support are concerned, is overruled, and, accordingly, the motion is sustained and the case is remanded to the lower court for further proceedings in accordance with law and consistent with the views herein expressed.
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Tutorship of Shea
...the statute. Judgments awarding custody and child support are always subject to modification and are thus never final. Davis v. Davis, 238 La. 293, 115 So.2d 355 (1959); Willis v. Willis, 209 La. 205, 24 So.2d 378 (1945); Patrick v. Patrick, 496 So.2d 521 (La.App. 1st Cir.1986). All custody......
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... ... * * * Wright v. Wright, (supra) Rabun v. Rabun, 232 La. 1004, 95 So.2d 635, 637, and Davis v. Davis, 238 La. 293, 115 So.2d 355' ... (Emphasis added.) ... The Supreme Court also said in Comstock v. Bourge, 210 La. 20, 26 ... ...
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...courts continuing jurisdiction for modification of the award. Imperial v. Hardy, 302 So.2d 5, 8 (La.1974) (citing Davis v. Davis, 238 La. 293, 115 So.2d 355 (1959)). In cases of child custody awards, an award of custody to one party may be modified upon a showing of a change in circumstance......
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...by either party. Tutorship of Shea, 619 So.2d 1236 (La.App. 3 Cir.1993), writ denied 626 So.2d 1165 (La.1993); citing Davis v. Davis, 238 La. 293, 115 So.2d 355 (1959). (Emphasis In making the motion to reduce retroactive to 1994, the trial court, in effect, overruled the previous contempt ......