Fayard v. Fayard

• Decision Date: 06 December 1965
• Docket Number: No. 2098,2098
• Citation: 181 So.2d 304
• Parties: Mrs. Lorna MAYNARD, wife of Paul FAYARD, Jr. v. Paul FAYARD, Jr.
• Court: Court of Appeal of Louisiana — District of US

Page 304

181 So.2d 304

Mrs. Lorna MAYNARD, wife of Paul FAYARD, Jr. v. Paul FAYARD, Jr.

No. 2098.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 6, 1965.

Rehearing Denied Jan. 10, 1966.

Writ Refused March 11, 1966.

Flanders & Flanders, Dudley D. Flanders, New Orleans, for plaintiff-appellee.

Emile J. Dreuil, Jr., New Orleans, for defendant-appellant.

Before McBRIDE, HALL and BARNETTE, JJ.

BARNETTE, Judge.

This proceeding involves a contest between the father, Paul Fayard, Jr., and mother, Mrs. Lorna Fayard, over the custody of three children, now approximately eleven, seven and five years old. Mr. and Mrs. Fayard were judicially separated by judgment of the Civil District Court for the Parish of Orleans on December 15, 1964.

During the pendency of the suit for separation, a judgment on rule, October 10, 1963, awarded the custody of the children to the mother, conditioned upon the children's remaining in the State of Louisiana. ¹ Sometime thereafter, the mother, Mrs. Lorna Fayard, went to the State of New York to the home of her mother and step-father, taking the children with her in violation of the district court's order that they remain in Louisiana.

The father then proceeded by rule against his estranged wife seeking a revocation of the judgment of October 10, awarding custody to the mother. On November 27, 1963, the court found that she had violated its order, revoked its custody order of October 10, and entered judgment granting the father custody of the children. In its 'Reasons for Judgment' the court said:

'And, the record should show that if after further consideration by the respondent she decides to return to the State of Louisiana in compliance with the Court's order, the Court will then consider restoring these children to her custody.'

At this point it became necessary for Mr. Fayard to go to New York and proceed against his wife in the courts of that state to enforce the jugment of the district court of November 27. After considerable expense and inconvenience to Mr. Fayard, the children were returned to New Orleans in February, 1964. A further judgment on rule was rendered March 10, 1964, returning the children to the custody of the mother, conditioned upon their remaining in Louisiana, and subject also to visitation privileges of the father.

On December 15, 1964, a judgment of separation from bed and board was granted in favor of Mrs. Fayard, ² granting to her also 'permanent care, custody and control of her minor children Kenneth, Darryl and Beverly' and condemning Mr. Fayard 'to continue to pay alimony in the sum of $150.00 per month for the support of his minor children.' On May 7, 1965, a judgment on rule restored the visitation privileges of Mr. Fayard, on which point the judgment of December 15 was silent.

On July 27, 1965, Mrs. Fayard filed motion for rule, seeking to obtain modification of the court's previous orders that the children remain in Louisiana and praying for permission to take them to the State of New York to reside with her there. On August 12, 1965, judgment was rendered substantially as prayed for, granting Mrs. Fayard permission to move her residence to the State of New York 'where she is to continue to have the care, custody and control of her three minor children, BEVERLY, DARRYL and KENNETH FAYARD. The defendant, PAUL FAYARD, JR., shall have visitation privileges for the month of July or the month of August in New Orleans or in New York at his option and his expense, provided that he may visit with the children for one day on at least four other occasions during the balance of the year; provided further that the visitation is in New York State and at the father's expense. The defendant shall notify the plaintiff in writing at least one month prior to each visitation .'

From this judgment the father, defendant-appellant, has perfected this devolutive appeal.

In denying motion for new trial following his judgment of October 10, 1963, in which the mother's custody was conditioned on remaining in Louisiana, the trial judge said:

'I gave custody to this wife with some trepidation. I was not completely happy about it. I didn't put this in the original judgment, but now that we have argued a Motion for a New Trial I think I should. Frankly, I'm uneasy about both of these parents. I think that they both showed some lack of maturity, some lack of responsibility which I don't like to see in parents, and I was somewhat uneasy about them both. I was not too impressed by this mother on the witness stand. Her demeanor was worrisome to me. I worried about the allegations which were made concerning her mental condition and her reaction to those allegations. I don't say that she admitted that she was having problems, but she didn't deny it. I mean she didn't talk about it like I would have liked to have seen and liked to have heard, and generally I worried a great deal about this case, and I worried about custody to this mother and the fact that she might be some two thousand miles away from the jurisdiction of the Court and from the watchful eye of the husband. I think that probably (and this is non-medical and inexpert conclusion), but I think that probably both their problems were one another. I got the impression that they were both completely and utterly incompatible, and it may be that both of their troubles arose out of their inconsistencies and their conflicts, and it may be that they both will be happier separated, but at the same time, while they're making the adjustment to being separated and while the children are making the adjustment of not having their father there, while the one who was custody is working out her own problems, I'd rather for them to be here in the vicinity of the Court. * * *'

Twenty-two months later, on the last trial of the custody issue, August 10, 1965, he made the following comment:

'The Court might observe the difference when Mrs. Fayard was in here before she did appear to be distressed, extremely distressed, and it was one of the factors in my insisting that she stay here, but quite the contrary is true today. Mrs. Fayard appears to have her emotions completely under control. She speaks quietly, intelligently and unemotionally about very emotional problems, which gives me the impression, as a layman looking at her, that if she was suffering from any mental disturbance in the previous hearing she certainly is not now.'

A careful reading of all the testimony in the record convinces us that the foregoing observations of the trial judge seem to have been justified. He was certainly in a better position, having seen and heard the parties and observed their reactions when they appeared before him over a period of nearly two years, to appraise their suitability to be entrusted with the custody of the children than we are. There is nothing in the record to suggest an abuse of his discretion in choosing between the father and mother. ³

It would serve no useful purpose for us to recite details of testimony. The appellant is not complaining so much (if at all) of the award of custody to the mother, but rather of that portion of the judgment which permits her to take them to the State of New York, thus virtually depriving him of reasonable contact and visitation privileges. This is a right which we do not consider lightly. Furthermore, we recognize the right of the children to know, to love, and to have companionship with their father. These rights are inherent, even sacred, in the parent-child relationship and should be protected as far as possible until forfeited by unworthiness or where the exercise of the right would be inimical to the child's welfare.

We have read and considered all the authorities cited in briefs of the appellant and appellee and more, and find in them ample authority for a court in the exercise of its discretion to permit children under its custodial jurisdiction to be removed from the state.

These authorities were discussed in Sachse v. Sachse, 150 So.2d 772 (La.App.1st Cir. 1963). Counsel for appellant relies 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 removal of children from a jurisdiction where the removal is not to their best interest or To the best interests of the parent who has been denied custody.' (Emphasis added.)

The foregoing authorities and others, including the Annotation at 154 A.L.R. 552, where numerous cases are cited, support appellant's argument except that portion above quoted in italics. We have been unable to find in any of the authorities cited support for this latter contention. The cases cited by appellant ⁴ and discussed in the A.L.R. Annotation, supra, merely recognize the hardship placed on parents denied custody in exercising visitation rights with children in distant places and seek to protect this right by some appropriate decree. We have recognized this factor and express ourselves...