Douglas v. Douglas, 672

• Citation: 146 So.2d 227
• Decision Date: 05 November 1962
• Docket Number: No. 672,672
• Parties: Kenneth Wayne DOUGLAS, Plaintiff and Defendant in Rule and Appellee, v. Martha Louise Lee DOUGLAS, Defendant and Plaintiff in Rule and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 227

146 So.2d 227

Kenneth Wayne DOUGLAS, Plaintiff and Defendant in Rule and Appellee, v. Martha Louise Lee DOUGLAS, Defendant and Plaintiff in Rule

and Appellant.

No. 672.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 1962.

Watson & Watson, by Jack C. Watson and Sue Watson, Lake Charles, for defendant-appellant (plaintiff in rule).

Lloyd E. Hennigan, Jr., Lake Charles, for plaintiff-appellee (defendant in rule).

Before FRUGE , SAVOY and CULPEPPER, JJ.

CULPEPPER, Judge.

The mother, as plaintiff in rule, seeks to change a prior child custody order granting custody of a nine year old girl to the father. After hearing on the merits, the district judge recalled the rule to show cause and allowed the prior custody order in favor of the father to stand. The mother, plaintiff in rule, appeals.

The principal issue on appeal is whether this case is controlled by the holding in Decker v. Landry, 227 La. 603, 80 So.2d 91 (La.Sup.Ct.1955). There the court held that the usual preference in favor of the mother in custody cases, does not apply where permanent custody has previously been awarded to the father and that the mother requesting a modification has the double burden of proving that the conditions under which the child is living are detrimental to its interest and that she can and will provide a good home and better environment.

As to the facts of the present case, the district judge found, in a well considered written opinion, that the evidence did not show the mother was unfit or unable to care for the child, nor did it show that the conditions under which the child was living, in the custody of the father, were detrimental to its best interest. On the contrary, the trial judge found that both the mother and the father were well qualified and able to care for the child. However, the lower court decided that Decker v. Landry, supra, was controlling; that the mother had failed in her double burden of proof; that therefore the previous custody order in favor of the father could not be changed.

We have reached the conclusion that Decker v. Landry, supra, is not controlling, because the district court of Calcasieu Parish, Louisiana, had no jurisdiction of the father's initial suit there for separation from bed and board on the grounds of abandonment. Consequently, the judgment rendered in those proceedings is void and the incidental custody order in favor of the husband is likewise a nullity. Hence, the present rule for custody is an initial consideration of the issue and the usual preference in favor of the mother in custody cases must be applied.

The facts relevant to the issue of jurisdiction are that Mr. and Mrs. Douglas were married in Arkansas; their last matrimonial domicile was in Greenville, Mississippi, where they lived for five or six years; their separation occurred in Greenville, Mississippi; Mrs. Douglas refused to follow her husband to Calcasieu Parish, Louisiana and has never become a resident of Louisiana; and the parties have never lived together as man and wife in Louisiana. These facts are alleged in Mr. Douglas's petition for separation and proved by the evidence herein.

LSA-C.C.P. Article 10 reads in pertinent part as follows:

'A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:

'(7) An action of divorce, or of separation from bed and board, if one or both of the spouses are domiciled in this state and, except as otherwise provided by law, the grounds therefor were committed or occurred in this state, or while the matrimonial domicile was in this state.'

The official Revision Comments under LSA-C.C.P. Article 10 state that 'The exceptions referred to in Art. 13(7) are those sanctioned by Civil Code Art. 142 and R.S. 9:301.' LSA-Civil Code, Article 142 establishes an exception in favor of the wife suing for a separation even though the spouses have never established a matrimonial domicile in Louisiana and the grounds for the suit have occurred outside this state, but no such exception is established in favor of the husband. LSA-R.S. 9:301 is concerned with divorce on the grounds of living separate and apart for a period in excess of two years. Neither exception is pertinent to the instant case.

LSA-C.C.P. Article 10(7) makes no change in the law as stated by our Supreme Court in Mann v. Mann, 170 La. 958, 129 So. 543, as follows:

'In concluding this phase of the case, we may say that it must now be regarded as the established jurisprudence that the courts of this state will not entertain jurisdiction of a suit for separation of bed and board or divorce brought by a husband, where the marriage took place in another state or country, where the cause for separation or divorce did not originate in this state and where the wife has never resided with her husband in this state or become a resident of this state, and further that the refusal of a wife to follow her husband to this state cannot be regarded as an abandonment occurring in this state under the maxim or dictum that the domicile of the husband is or becomes the domicile of the wife.

See also Stevens v. Allen, 139 La. 658, 71 So. 936, L.R.A.1916E, 1115, Evans v. Evans, 166 La. 145, 116 So. 831 and the authorities cited therein.

Applying the law as set forth above, to the facts of the instant case, we find that here the plaintiff in the suit for separation from bed and board met the first of the jurisdictional requirements, i.e., he established his domicile in the state of Louisiana, but he has not met either one or the other two requirements, i.e., the...