Powell v. Barsavage

• Decision Date: 02 June 1981
• Docket Number: No. 12023,12023
• Citation: 399 So.2d 1308
• Parties: Richard Dale POWELL v. Barbara Ann BARSAVAGE, wife of Richard Dale Powell.
• Court: Court of Appeal of Louisiana — District of US

Page 1308

399 So.2d 1308

Richard Dale POWELL v. Barbara Ann BARSAVAGE, wife of Richard Dale Powell.

No. 12023.

Court of Appeal of Louisiana, Fourth Circuit.

June 2, 1981.

Craig J. Cimo, Gretna, for plaintiff-appellant.

George C. Ehmig, Gretna, for Mildred Barsavage, defendant-appellee.

Before GULOTTA, GARRISON and CHEHARDY, JJ.

CHEHARDY, Judge.

Plaintiff, Richard Dale Powell, appeals a district court decision denying the rule nisi brought by him seeking the change of custody of the child Bonnie Ann Powell from that of Mildred Barsavage, the maternal grandmother, to him the natural father of the said child and ordering the care, custody and control of the minor child to remain with Mildred Barsavage. The plaintiff also appeals that part of the judgment on a rule sought by Mildred Barsavage in her favor and against the plaintiff, making unpaid child support executory in the sum of $4,056 subject to a credit of $725, or a total of $3,331, together with legal interest thereon from the date that each payment of $26 became due and payable, until paid. Powell was also ordered to pay all costs of the proceedings.

The record reveals the plaintiff married Barbara Ann Barsavage on June 14, 1972, and of that marriage one child was born, Bonnie Ann Powell.

On September 29, 1976, a judgment of divorce was awarded to the plaintiff and that judgment also ordered him to pay child support for his minor child in the amount of $26 per seek. Additionally, the temporary care, custody and control of the child was awarded to Mildred Barsavage.

On April 14, 1980, Mr. Powell filed a rule seeking custody of Bonnie, and on June 9, 1980, Mrs. Barsavage filed a motion claiming the plaintiff was in arrears in the payments of child support in the sum of $4,056 and asking that the arrearage should be made executory.

In giving his reasons for judgment from the bench, the district court judge declared:

" * * * This Court is faced with the comparing of the best interest of the child and between that of the maternal grandmother and the father. Best interest may be in the opinion of this Court, what is the better interest of the child. Evidence basically presented to this Court today has been the rehabilitation of the husband. He felt that he was unable to keep the child and possibly being incapable, I guess at the time of May, 1975. And most of this testimony today relates to his rehabilitation in showing that he is a moral and in good character, and that he also goes to church, that he also holds a job, and that he has two previous children, that he is married and that he has the ability to keep the child. This Court has to make a determination not whether or not the father in this case has rehabilitated himself, but I keep going back to what is in the best interest of the child. And I think on the other hand that it has been shown to the Court that Mrs. Barsavage, the maternal grandmother, has not that she is unfit, in fact evidence has been brought out that she is very capable. It appears to the Court that she is well physically, even though she has had a heart attack in the immediate past. There has been testimony by all parties that she does keep a clean and normal house. That she makes a good home for the child, Bonnie, that there are other children in the neighborhood that she plays with, she does go to school, she maintains average grades in school. And this Court can't readily conclude that it is better that this custody be changed from the grandmother to the father. And the Court recognizes that generally the best interest of the child and the better interest is probably with the natural parent. And I think the husband in this case has made a strong showing that today he is capable to keeping the child, but I cannot conclude that this Court should change that custody that has been granted to the grandmother and that the burden, it is a strong burden, placed upon the father in which to do this. I think, not only that he is rehabilitated, but I think he's got to further show that the grandparent in this instance is unfit or incapable, as well as it is in the better interest of the child that he have that custody. This little girl has been in the home since age 2, and that is over five years now with the grandmother. And I don't know if this Court changed the custody whether it would be in the better interest, at least I'm not convinced that it is in the better interest. There is liberal, the Court finds that there is liberal visitation privileges given to the father. Whether or not liberal visitation privileges is tantamount to a split custody or custody to the father in this case. I think at least the father testifies that he can see the child whenever he wants, and appears the child lives close by. And I can't say that physically living in his household would be in the better interest of that child. Accordingly, this Court is going to keep the custody with the grandparent. One other fact I should point out. Although it doesn't weigh as heavily on the Court, the fact that the husband did not make payments since October, 1978. I think that is a factor that this Court has to consider in determining the best interest. But this Court is not giving as much weight to that. The Court does find that the defendant is delinquent in the amount of, I calculated that ... and I guess I don't know how you all can come up with $4,056.00, but I guess it turns out to be... You all figured it at $26.25 a week, is that it?"

The applicable jurisprudence to a case such as the present one is very clear. In the oft-quoted case of Wood v. Beard 290 So.2d 675 (La.1974), the Court declared at 677:

"When the parent competes with non-parents of the child, the parent's right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760 (1950); State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163 (1947); State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411 (1926); Ex parte Lincoln, 128 La. 278, 54 So. 818 (1911). See also State ex rel. Lombardo v. Miller, 232 La. 617, 94 So.2d 888 (1957). No such forfeiture has been found by either court below, and the evidence will not support such a finding. Nor will the evidence support a conclusion that custody in the parent will be inimical to the welfare of the child."

The holding of Wood, supra, has been reiterated in the recent case of Duffie v. Duffie, 387 So.2d 654 (La.App. 1st Cir. 1980), where the mother of a child sought a change of "physical possession" of the 9-year-old boy from the maternal aunt and uncle to herself who had been awarded "provisional" custody. In considering parental rights to custody vis-a-vis a nonparent's rights, the court said at 657-658:

"The primary consideration in every case between parents involving child custody is the best interest of the child. La.C.C. art. 157; Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971); Shanklin v. Shanklin, 376 So.2d 1036 (La.App. 1st Cir. 1979). The trial judge's written and oral reasons for judgment reflect a deep concern on his part to do what was right in this case. Based to a large extent on a private discussion with the youth, the trial judge determined that the child's best interest lay in keeping physical possession with the maternal aunt and uncle and provisional possession with the mother, and giving reasonable and liberal visitation rights to the mother. His holding, however, runs headon into the rule laid down by the Louisiana Supreme Court in Wood v. Beard, 290 So.2d 675 (La.1974).

"The court in Wood v. Beard, supra, held that the parent has the paramount right to the custody of the child and can only be deprived of custody under compelling circumstances. In so holding, the court said at 677:

'It is in the best interest of the child of tender years to grant custody to the mother unless the mother is unfit or otherwise unsuitable. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971) and cases there cited. In the application of this rule it is not appropriate for the court to compare the mother's home with another when the mother and her home are acceptable, and then award the custody to the contestant who can provide greater advantages for the child. State ex rel. Rothrock v. Webber, 245 La. 901, 161 So.2d 759 (1964); State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729 (1935). The best interest of the minor is not served by denying parental custody after deciding which of two qualified, competing family groups...