Webber v. Webber

• Court: Court of Appeal of Louisiana
• Writing for the Court: YARRUT
• Citation: Webber v. Webber, 167 So.2d 519 (La. App. 1964)
• Decision Date: 15 July 1964
• Docket Number: No. 1521,1521
• Parties: Absalom T. WEBBER, Jr. v. Courtney Ann PARKER, Wife of Absalom T. WEBBER, Jr.

Page 519

167 So.2d 519

Absalom T. WEBBER, Jr. v. Courtney Ann PARKER, Wife of Absalom T. WEBBER, Jr.

No. 1521.

Court of Appeal of Louisiana, Fourth Circuit.

July 15, 1964.

Rehearing Denied Oct. 7, 1964.

Writ Refused Nov. 9, 1964.

Ogden, Woods, Henriques & Rives, C. B. Ogden, II, New Orleans, for plaintiff-appellant.

Sydney J. Parlongue, New Orleans, for defendant-appellee.

Before YARRUT, SAMUEL and BARNETTE, JJ.

YARRUT, Judge.

The sole issues presented by this appeal by the Plaintiff-Appellant, briefly stated, are:

(1) Which parent has the right to name a child of the marriage, born during the pendency of a suit for separation; and,

(2) Should one parent name the child without approval of the other or the court, what proceeding must be taken to nullify the name given and to rename the child?

On January 7, 1963, Plaintiff-husband sued for separation on the ground of cruelty, reciting his marriage to Defendant-wife on June 16, 1962, and that no children were born of the marriage, but that his wife was then pregnant.

On January 9, 1963, the wife instituted a separate suit for separation on the ground of cruelty also alleging that no children were born of the marriage, but that she was pregnant.

The wife's suit was consolidated with that filed by her husband.

On May 10, 1963, the wife-mother filed a supplemental petition alleging that a baby boy, named Michael Quin Webber, was born on April 28, 1963, and asked for his care and custody, which the district court promptly and ex parte awarded to her.

On May 14, 1963, the husband-father filed a motion setting forth that his wife, contrary to his own wishes and without advising him of the birth of their child, gave the baby the name recited in the pleadings, full well knowing he wanted the child named after him, viz., Absalom Theodore Webber, III, and obtained an order for her to show cause why the child's name should not be so changed.

To this motion the wife-mother filed exceptions of no cause of action, contending the proceeding should not be by rule but by petition and citation, and that the Defendants should be the Recorder of Births and Deaths for the Parish of Orleans and the district attorney.

The district court dismissed the fatherhusband's demand for the change, giving as his reasons:

'Change of name procedure is set out in LSA-RS 13:4751--4755. The proceedings must be carried on contradictorily with the District Attorney, who shall be served with a copy of the petition and citation to answer the same. LSA-RS 13:4752. The statute provides the exclusive method for change of name in Louisiana. See Ops.La.Atty.Gen. 963, 964--965 (1942).

'The procedure of plaintiff in rule is fatally defective. The rule must be dismissed.'

On the same day the court, on the trial of the merits of the consolidated separation suits, rendered judgment in favor of the husband against the wife, but granted the wife-mother custody of the child.

During the marriage, and while the parties are living together, the husband is head and master of the community and the children. LSA-C.C. art. 216.

Regarding custody of children of the marriage pending litigation between the parents, LSA-C.C. arts. 146 and 157 provide:

'Art. 146. 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. (As amended Acts 1888, No. 124.)'

'Art. 157. In all cases of separation and of divorce the children shall be placed under the care of the party who shall have obtained the separation or divorce unless the judge shall, for the greater advantage of the children, order that some or all of them shall be entrusted to the care of the other party. The party under whose care a child or children is placed, or to whose care a child or children has been entrusted, shall of right become natural tutor or tutrix of said child or children to the same extent and with the same effect as if the other party had died. (As amended Acts 1921, Ex.Sess., No. 38; Acts 1924, No. 74.)'

Pending suit for separation, where the parties are unable to agree regarding any matter that develops regarding the present or future welfare of their children, and a decision must be made, neither party has the right to make the decision, without the knowledge or consent of the other. The court, having jurisdiction of the separation proceedings, must then make the decision.

Since the name given the child, born during the pendency of their separation proceedings, was not with the consent of the father, nor authorized by ...