Stuckey v. Stuckey

• Decision Date: 03 April 1973
• Docket Number: No. 12064,12064
• Citation: 276 So.2d 408
• Parties: Houston Payne STUCKEY, Jr., Plaintiff-Appellee, v. Gloria Boles STUCKEY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 408

276 So.2d 408

Houston Payne STUCKEY, Jr., Plaintiff-Appellee, v. Gloria Boles STUCKEY, Defendant-Appellant.

No. 12064.

Court of Appeal of Louisiana, Second Circuit.

April 3, 1973.

Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-appellant.

Harold D. Vaught, Shreveport, for plaintiff-appellee.

Before BOLIN, PRICE and HEARD, J.j.

PRICE, Judge.

This is an appeal by te mother of a two year old child from the judgment of the trial court awarding pendente lite custody of the child to the paternal grandparents.

Houston Payne Stuckey, Jr., filed suit for separation from bed and board against Gloria Boles Stuckey, alleging defendant had abandoned him. Plaintiff also requested and obtained an order granting him provisional custody of their child, David Lee Stuckey.

Defendant reconvened for judgment in her favor for a separation and reauested the pendente lite custody of the child be awarded to her. Plaintiff answered defendant's reconventional demand, alleging she is an unfit person to have custody of the child because of her immorality and instability in maintaining a home for the child. Plaintiff further alleges he has been arrested in the State of North Carolina since filing his original petition and because of his incarceration the custody of the child should be granted to his parents, Mr. and Mrs. Houston P. Stuckey, Sr., who have had physical custody of the child since September of 1971.

After a trial of the rule nisi brought by defendant to show cause why she should not be awarded custody of her minor child, the court found the evidence to show it was in the best interest of the child to remain in the custody of the grandparents and pendente lite custody was thus awarded to them.

On this appeal defendant complains the trial judge abused his discretion in awarding custody to the grandparents instead of the natural mother of the child. Defendant further contends the court was without authority to award custody to grandparents who were not parties to the suit and who had not intervened in the action.

Defendant takes the position the recent Supreme Court case of Griffith v. Roy, 263 La. 712, 269 So.2d 217 (1972) specifically holds that a district court of the state does not have authority to award custody of minor children to grandparents over natural parents . We do not interpret Griffith to be in conflict whith the rule followed by the jurisprudence of this state that when both the mother and father have been found unfit or otherwise incapable of assuming custody, it is appropriate to award custody of a minor child to a grandparent. Theriot v. Pulling, 209 La. 871, 25 So.2d 620 (1946); Roller v. Roller, 213 So.2d 161 (La.App.3d Cir. 1968).

In Griffith the paternal grandfather who was then in physical possession of the children instituted a suit in district court against the mother who had been granted provisional custody in a prior separation proceeding, alleging the children had been neglected by the mother and that she was an unfit person to have custody. Judgment was rendered by default giving the grandfather permanent custody. Thereafter the mother filed a habeas corpus proceeding seeking the custody of her children and also filed a rule in the suit which awarded custody to the grandfather, asking the judgment be changed granting her custody.

After a consolidated hearing of the two matters, the district court denied the request for a writ of habeas corpus and maintained the custody in the grandfather. This judgment was affirmed by the Court of Appeal but was reversed by the Supreme Court on the basis of a lack of jurisdiction of the district court to entertain a petition filed by a third party asserting a child is a 'neglected' child. The court construed the grandfather's petition as being in the nature of a 'neglect complaint' such as may only be filed by the State in the juvenile courts of this State. By reference to footnote 5 of the opinion of the court it is clear the scope of the court's holding is thus limited to the jurisdictional question alone . We do not, therefore, find the holding of the Griffith case applicable to this case.

La. C.C. Art. 146 provides:

'If there are children of the marriage, whose provisional keeping is claimed by both husband and wife, the suit being yet pending and undecided, it shall be granted to the wife, whether plaintiff or defendant; unless there should be strong reasons to deprive her of it, either in whole or in part, the decision whereof is left to the discretion of the judge.'

In evaluating the question of the alleged abuse of discretion by the trial judge, we refer to the language of the Supreme Court in the case of Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), quoting as follows:

'Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. Messner v. Messner, 240 La. 252, 122 So.2d 90 (1960); Salley v. Salley, 238...