Nugent v. Nugent

• Decision Date: 11 February 1970
• Docket Number: No. 2984,2984
• Citation: 232 So.2d 521
• Parties: Wiley C. NUGENT, Jr., Plaintiff-Appellant, v. Kathy Marie L. NUGENT, Defendant-Appellee. . Third Circuit
• Court: Court of Appeal of Louisiana — District of US

Page 521

232 So.2d 521

Wiley C. NUGENT, Jr., Plaintiff-Appellant, v. Kathy Marie L. NUGENT, Defendant-Appellee.

No. 2984.

Court of Appeal of Louisiana. Third Circuit.

Feb. 11, 1970.

Dissenting Opinion and Rehearing Denied March 4, 1970.

Gold, Hall & Skye, by James D. Davis, Alexandria, for plaintiff-appellant.

Holt, Wagner & Lee, by Richard E. Lee, Pineville, for defendant-appellee.

Before FRUGE , SAVOY and HOOD, JJ.

HOOD, Judge.

Plaintiff, Wiley C. Nugent, Jr., instituted this suit for separation against his wife, Kathy Marie LeBlanc Nugent. A default judgment was rendered granting him the separation and awarding him the custody of their minor child, Vicki Lynn. Mrs. Nugent then filed pleadings in the same suit demanding that she be awarded the custody of the child. After a hearing, judgment was rendered by the trial court awarding the custody to Mrs. Nugent. Mr. Nugent, the original plaintiff, has appealed.

Plaintiff's principal contention is that his wife failed to meet the burden of proof which rests on her to justify a change in custody, and that the trial court erred in awarding custody to defendant.

Mr. and Mrs. Nugent separated on August 2, 1969, when their child, Vicki Lynn, was seven months old. On August 4 Mrs. Nugent asked her husband to permit her to return to the apartment where they had lived to get some personal belongings for herself and for the child, and plaintiff agreed to meet her there. Pursuant to that arrangement, they met at the apartment and defendant had her baby with her. After some discussion, plaintiff refused to let his wife take anything from the apartment. Mrs. Nugent, with her baby then got into an automobile being driven by her husband, with the understanding that he would take her to the apartment to which she had moved. Instead of taking her to that apartment, Mr. Nugent took his wife and baby to his mother's home.

Mrs. Nugent telephoned her attorney shortly after she arrived at the home of plaintiff's mother, and as she started to leave her husband forcibly prevented her from taking the child with her. She then went to a neighboring home and again telephoned her attorney who advised her that she should leave the baby in the home of her mother-in-law overnight and that he would obtain a court order the next day awarding her the custody. Pursuant to that suggestion, Mrs . Nugent left the child with plaintiff's mother that night. No court order was obtained the next day as she expected.

On August 8, Mr. Nugent instituted this separation suit against his wife, and at the time the suit was filed he obtained an ex parte order granting him the temporary custody of the child. No answer was filed to that suit, and plaintiff Nugent obtained a default judgment on September 16, 1969, granting him the separation and awarding him the custody of the child.

Nine days later, on September 25, Mrs. Nugent filed a petition in this suit demanding that she be awarded custody of the child. A rule was issued directing plaintiff to show cause why the custody should not be awarded to the mother, and after trial judgment was rendered on October 15, 1969, awarding custody to Mrs. Nugent.

The child has been in the actual custody of Mrs. Nugent since the date on which the above-mentioned judgment was rendered.

The evidence shows, and plaintiff freely concedes, that Mrs. Nugent is morally fit, is physically able, and is otherwise suitable to care for the child. She lives in a furnished apartment which is completely adequate for her and the child. She is employed by a bank in Alexandria, and she has engaged a capable woman, Mrs. Emmett Johnson, to care for the baby while defendant is at work. The child is in good health, and plaintiff offers no criticism as to the manner in which defendant is taking care of her.

Mr. Nugent also is morally fit to care for the child. He, of course, is unable to give the child the personal attention which she needs, but plaintiff is living with his parents and his mother and his grandmother are willing and able to care for the baby. Mr. Nugent is working for a small loan company, and his employment requires him to be away from home from about 7:00 in the morning until about 8:00 at night.

Defendant, Mrs. Nugent, relies on the general rule that the mother's right to custody is paramount to that of the father. Mr. Nugent argues that since custody of the child was previously awarded to him, Mrs. Nugent cannot obtain a change of custody unless she meets a heavy burden of proof. He contends that defendant has failed to produce sufficient proof to justify the relief which she seeks.

The settled general rule is that the mother's right to the custody of her children, especially when they are of tender age, is preferred to that of the father, and her right to custody should not be denied unless she is found to be morally unfit or otherwise unsuitable. There is a presumption that the best interests and welfare of the children will be served by placing them in the custody of the mother, and it is only in exceptional cases that it will be considered to be to the best interests of the children that their custody be entrusted to the father. Tullier v. Tullier, 140 So.2d 916 (La.App. 4 Cir.1962) and cases cited therein. See also Gentry v. Gentry, 136 So.2d 418 (La.App. 1 Cir.1961).

The paramount question to be considered and answered in determining to whom the custody of the child should be granted is: What would serve the greatest advantage, the best interests and the best welfare of the child? Jackson v. Jackson, 217 So.2d 22o (La.App. 2 Cir.1969); Moose v. Abdalla, 248 La. 344, 178 So.2d 273 (1965); Bush v. Bush, 144 So.2d 119 (La.App. 4 Cir.1962); and LeBlanc v. LeBlanc, 194 So.2d 122 (La.App. 3 Cir.1967).

The trial judge has much discretion in awarding the custody of a child whose parents have been legally separated or divorced, and his conclusions are entitled to great weight. The determinations made by the trial judge as to custody, therefore, will not be set aside unless it clearly appears that there has been an abuse of discretion or unless the judgment awarding custody has been based upon incorrect legal principals. Bush v. Bush, supra; Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Guillory v. Guillory, 221 La. 374, 59 So.2d 424 (1952); and LeBlanc v. LeBlanc, supra.

Plaintiff Nugent contends, however, that since a default judgment was once rendered awarding the custody of the child to him, Mrs. Nugent cannot regain the legal custody of the child unless she meets what has sometimes been called a 'double burden of proof,' that is, she must show that the conditions under which Vicki Lynn was living while he had legal custody were detrimental to her best interests and that Mrs. Nugent could and would provide a good home and better environment for the child.

In Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955), the husband was awarded custody of his two minor children in 1951. Three years later, in 1954, the wife instituted a proceeding seeking to obtain the custody of those children. The evidence showed that the wife had abandoned the children in 1951, and from that time until 1954 she 'never evinced any great desire for them.' In 1953 she married an employee of a racetrack, and she proposed that the children live with her and her husband in a trailer, residing a part of the year in New Orleans and a part of it in Detroit. Our Supreme Court recognized that the judgment of the trial court should not be disturbed, and it concluded that it would not be for the best interests of the children to transfer custody to the mother. It thus affirmed the judgment of the trial court which rejected the wife's demand. The basis for its decision is succinctly set out in the last paragraph of the opinion of the Supreme Court, which reads:

'Aside from our reluctance to upset a judgment of a trial court in divorce matters involving the custody of children, see Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456, we have no hesitancy, under the facts of this case, in approving the conclusion of the court below that the environment and living conditions to which the children would be subjected by a change of custody 'would not be conducive to their best interests.''

The court noted in Decker v. Landry, supra, that an award of custody is not irrevocable, and that it is subject to modification at any time when a change of conditions demands it. The court further observed, however, that 'it is incumbent upon the party requesting the modification to prove that the conditions under which the children are living are detrimental to their interests and further that the applicant can and will provide a good home and better environment if given their custody.' Plaintiff argues that under that rule defendant in the instant suit cannot obtain the relief which she seeks unless she establishes that it would be 'detrimental' to the interest of Vicki Lynn to allow her to remain in the custody of Mr. Nugent. He takes the position that defendant has failed to establish that fact. In support of that argument he refers us to the cases of Gentry v. Gentry, supra; Hanks v. Hanks, 138 So.2d 19 (La.App. 1 Cir. 1962); Gary v. Gary, 143 So.2d 411 (La.App. 3 Cir. 1962); Wells v. Wells, 180 So.2d 580 (La.App. 3 Cir. 1965); Poitevent v. Poitevent, 152 So.2d 256 (La.App. 4 Cir. 1963); and Tiffee v. Tiffee, 254 La. 381, 223 So.2d 840 (1969).

In all but two of the cases cited by plaintiff the...