State ex rel. Stokes v. Stokes, 7629

• Decision Date: 14 April 1969
• Docket Number: No. 7629,7629
• Parties: STATE ex rel. Julia Chambers STOKES et al., Petitioner-Appellee, v. Adelaide Jones STOKES (Adlay Jones Stokes), Respondent-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 573

222 So.2d 573

STATE ex rel. Julia Chambers STOKES et al., Petitioner-Appellee, v. Adelaide Jones STOKES (Adlay Jones Stokes), Respondent-Appellant.

No. 7629.

Court of Appeal of Louisiana, First Circuit.

April 14, 1969.

Rehearing Denied May 28, 1969.

Writ Refused June 27, 1969.

Walton J. Barnes, Baton Rouge, for appellant.

Arthur Cobb, Baton Rouge, for appellee.

Before LANDRY, SARTAIN and MARCUS, JJ.

SARTAIN, Judge.

In this suit, Julia Chambers Stokes (petitioner), the natural grandmother, seeks the legal custody of her four grandchildren. Service of her petition was had upon Adlay Jones Stokes (respondent), the children's legal mother. The trial judge granted judgment in favor of the natural grandmother from which judgment the mother has appealed.

Petitioner alleged that the children are the issue of a legal union between her son, Henry Clyde Stokes, and respondent; that the children have resided with her since February, 1964, when they were abandoned by respondent; that Henry Stokes was killed in an accident on or about June 21, 1967; and that she desires the provisional, temporary and finally the permanent care of the children. She further alleged that the mother is mentally and morally unfit for their custody and has not visited with the children during the past three years. When the petition was filed, the children were 11, 8, 6 and 3 years of age. Upon the filing of the petition, the trial judge granted an ex parte order awarding petitioner the 'provisional and temporary' custody of the children.

Respondent timely filed an answer denying the allegations as to her unfitness and failure to visit the children. She asserted that because of her own ill health it was agreed that the children should be cared for by petitioner and that after regaining her health, petitioner has refused to return the children to her. She prayed for and a rule nisi was issued directed to petitioner ordering her to show cause on August 14, 1967, why respondent should not be awarded the permanent care, custody and control of the children; and, why petitioner should not be directed by the court to turn the children over to her. The matter was heard on the return date and then taken under advisement by the court. On October 23, 1967, written reasons were handed down awarding the children's custody to petitioner, which reasons stated:

'The facts reveal that for the preceding three and one half years and since her last return from the mental hospital at Jackson, Louisiana, this mother had absolutely nothing whatsoever to do with any need or interest of these children except on those rare holiday occasions when the now deceased father took them to see her. The only person providing the necewsary (sic) care and constant attendance upon the needs of these children was the paternal grandmother and the father, at such times and at such places as he chose to provide shelter for these children, even though from time to time it was in the home of women he was then living with in open concubinage.

Always and ever during this interval of time in the lives of these children it was a dedicated and loving grandmother who provided the necessities and the love required by these and all other children. The record reflects, uncontradicted, that the mother even refused to talk to one or more of her children on the telephone. Adelaide Jones Stokes did not attend the funeral of her husband and evinced no considerable interest whatsoever in the lives of these children until such time as it became apparent to everyone concerned that there might be a large sum of money due and owing these children for the death of their father under the tragic circumstances of his death. While it is argued that this Court can not exercise jurisdiction over the persons of these children except incident to divorce or separation, time and time again in the exercise of this Court's duty, it is necessary for this Court, both in its function as presiding judge over domestic matters at issue and in addition thereto, in its capacity as the juvenile could judge of this parish, to award children in neglect of children matters, in habeas corpus proceedings and in other matters affecting the immediate needs of children within the geographical limitations of this Court's jurisdiction.'

'For the reasons assigned above and with no eye to the financial benefits that may flow to someone for these children, the Court must, and hereby does, place the custody of these four children in their paternal grandmother, Julia Chambers Stokes.'

Counsel for respondent directs a two-fold attack upon these proceedings. First, he contends that the Family Court sitting as a civil court has jurisdiction in custody matters only if such matters are incidental to a separation or divorce. Kelly v. Kelly, 227 La. 275, 79 So.2d 307 (La.S.Ct., 1955). He further argues that absent civil jurisdiction, the Family Court has only juvenile jurisdiction and for these children to be subject to the Family Court's juvenile jurisdiction they must be 'neglected' as defined in In re Sherril, 206 La. 457, 19 So.2d 203 and L.R.S. 13:1570, subd. A(1), (2). He therefore concludes that since petitioner proceeded as in a civil matter and further alleged that the children were well cared for, they were not neglected and the court a quo was without jurisdiction (State v. LaBorde, 233 La. 556, 97 So.2d 393) and the judgment appealed from is an absolute nullity (Douglas v. Douglas, La.App., 146 So.2d 227).

Second, counsel for respondent alternatively argues that the proof adduced herein is insufficient to overcome the paramount right the law accords to a mother for the custody of her children.

We shall discuss these matters in the order raised and give reasons why we affirm the trial judge on his resolution of both issues.

In the Kelly Case the judge of the Family Court issued a writ of habeas corpus which was directed to the father to produce the child and show cause why the child should not be given over to its mother, who possessed a California judgment of custody. At the time hte writ was issued La.Const. Article 7, § 53(5) adopted in 1954 provided for and set forth the jurisdiction of the court which read as follows:

'(5) All actions for divorce, separation from bed and board, annulment of marriages, and disavowal of paternity As well as of all incidental matters connected therewith including, but not restricted to, matters relative to alimony pendente lite and permanent alimony, Custody of children, and injunctive relief or proceedings for the preservation of the community, jurisdiction of which has heretofore vested in the Civil District Court for the Parish of East Baton Rouge. * * *' (Emphasis ours)

In reversing the trial judge and ordering the writ dismissed and with reference to the above quoted constitutional provision, the court stated: (79 So.2d 307, 309) * * * Indeed, it is obvious from the clear language of the provision that the Family Court of East Baton Rouge Parish Can entertain matters relative to the custody of a child only when that matter is an incident to or ancillary of an action filed in the same court for divorce, separation, disavowal of paternity, or annulment of marriage.' (Emphasis ours)

It is equally clear that the Supreme Court was referring only to the Family Court's civil jurisdiction and not its juvenile authority .

The Kelly case immediately brought on the amendment in 1956 to La.Const. Article 7, § 53. Accordingly, the comparable provision relative to the jurisdiction of the Family Court was amended to read as follows:

'(7) All actions for divorce, separation from bed and board, annulment of marriages, establishment or disavowal of the paternity of children, alimony and support, Custody and visitation of children, as well as of all matters...