Wilmot v. Wilmot

• Decision Date: 23 March 1953
• Docket Number: 40476,Nos. 40264,s. 40264
• Citation: 223 La. 221,65 So.2d 321
• Parties: WILMOT v. WILMOT.
• Court: Louisiana Supreme Court

Page 321

65 So.2d 321

223 La. 221

WILMOT v. WILMOT.

Nos. 40264, 40476.

Supreme Court of Louisiana.

March 23, 1953.

Rehearing Denied April 27, 1953.

Richard B. Montgomery, Jr., St. Clair Adams, Jr., Charles J. Rivet, New Orleans, for appellant.

Wisdom & Stone, John Minor Wisdom, Saul Stone, Paul O. H. Pigman, Edward B. Benjamin, Jr., New Orleans, for appellee.

LE BLANC, Justice.

Two separate rules growing out of the same proceeding were consolidated for trial purposes in the Court below and also on appeal before this Court. One, a rule taken in the original suit for separtion between the parties, involves the matter of custody of two minor children and the other, taken in a separate proceeding concerns the question of alimony.

The main proceeding originated as a suit for separation from bed and board instituted by the plaintiff, Willis G. Wilmot, against his wife Rachel Buntin Wilmot, on November 30, 1946. His damand was based on alleged cruel treatment. On December 26, 1946, the parties agreed to a judgment which was rendered granting the temporary care and custody of the children, both girls, one aged about seven and one-half years at the time and the other almost four, to the mother, Mrs. Wilmot. This judgment was clearly one of divided custody as the father was given the right to have possession of the children on three days of each week during certain stated hours.

On March 11, 1947, Mrs. Wilmot filed her answer to her husband's suit for separation in which she denied all the charges made in his petition and reconvened setting forth acts of cruel treatment on his part, and prayed for judgment for separation in her favor. By agreement she was permitted later to file a supplemental answer and reconventional demand in which she presented an alternative allegation of abandonment by her husband and a corresponding alternative prayer for judgment on that ground. By a judgment rendered on March 25, 1947, and signed on March 31, 1947, it appears that her husband filed an answer to the reconventional demand of Mrs. Wilmot in which he admitted the abandonment she had alleged and accordingly a decree was entered granting her a separation a mensa et thoro, dissolving the community of acquets and gains existing between them and awarding her the permanent care and custody of the two children subject to many detailed rights of temporary possession on the part of the father as well as other rights with regard to their schooling and their place of residence in the city of New Orleans. Alimony to be paid by the father was fixed at $825 per month, of which $400 was for Mrs. Wilmot and $425 for support of the children.

By judgment rendered on June 7, 1948, and signed on June 11, 1948, Mrs. Wilmot was granted an absolute divorce from her husband and was again given the permanent care and custody of the children with certain rights again reserved to Mr. Wilmot regarding their possession at certain stipulated times and also regarding their schoolding and residence.

The arrangement by which the parties were no boube attempting to meet the problem of custody, with the approval of the Court by way of the judgments that were rendered, only served to make a bad situation worse. Mrs. Wilmot had lived in Tennessee near the city of Nashville, before she married Mr. Wilmot and her mother still lived in the family home. She claims that it was extremely difficult for her to obtain suitable living accomodations for herself and the children in New Orleans and found it rather easy to turn her mind to the maternal home where she might find proper refuge. In this she apparently was encouraged by her mother who not only received her and the children but offered them to live with her and moreover assisted her in financing the purchase of a summer cottage at Hot Springs, Virginia. Little wonder then that on February 3, 1950, she filed the present rule in this proceeding in which she set out the facts which have just been recited, and on suggesting all these matters to the Court as well as the fact that Nashville offered fine schools where she could have the children educated within the restrictions of her present alimony, she asked that their father be ruled into Court to show cause why she should not be permitted to remove her residence and domicile to Nashville, Tennessee and there rear and educated her two minor children, subject to their father's right to have them with him during a certain part of the summer when he would be on his vacation.

The defendant in rule, in response thereto, filed an exception of no right or cause of action and in the alternative he answered denying all the allegations it contained and then averred affirmatively that the mover was not a proper person to be entrused with the care and custody of the children because he has been informed by reputable psychiatrists that she appears to be in such a neurotic or psychotic state that she should be examined in order to determine whether it is safe and for the best interests of the children to remove them from the Court's jurisdiction and from their father's influence. He also averred that she is so set in her frivolous habits and her determination to pursue her own social pleasures and ambitions that it would be unreasonable to expect her after her removal from this State to give the children that care and attention they require when he will be in no position to watch over them and safeguard their welfare.

After a prolonged trial of the rule in the Court below there was judgment in favor of mover and against the defendant amending the previous custody judgment so as to provide that Mrs. Wilmot is given the right to remove hereself and the two children to Nashville, Tennessee, and the father to have the right to have the children with him from July 15 to September 1 of each year beginning with the year 1951 and the further right of visitation at reasonable times and under reasonable circumstances. This is first of the two rules which is before this Court on appeal by the defendant.

On appeal, defendant in rule again urges his exception of no cause or right of action. It is based on the proposition that the rule filed by mover does not allege that any change in circumstances affecting the welfare of the children has occurred since the consent decree regarding custody was rendered, not that defendant has forfeited his natural right of access to his children by any conduct subsequent to or prior to the consent decree. He stresses the point that, to the contrary, the motion discloses her sole purpose to be to gratify her personal desires without regard to the welfare of the children or to any of his rights.

Reference to the allegations made in the mtion indicates that there has been some change in circumstances which would justify the mover to ask to Court permission for her removal and the removal of the children to the State of Tennessee. She alleges that since the rendition of the consent decree she has been unable to locate proper housing accomodations in the city of New Orleans within the financial limitations of the alimony which she receives and in view of the offer of her mother to have her and the children live with her in the spacious home her mother owns in that State, and the further fact that residence there would afford the children splendid schools for their education it would be for their better interest and general welfare. She also alleges that she is willing that the children spend a certain part of the summer with their father. Taking these allegations to be true we think that she has disclosed a cause of action inasmuch as in matters of custody in cases of this kind, it is primarily the best interests and welfare of the children with which the Court is concerned. Moreover, the various questions raised under the exception seem to be matters which address themselves to the merits of the case as they would have to be determined largely on the facts that are presented. We find no merit in the exception and now proceed to a discussion on the merits of the rule on which there would seem to be two important points to be considered and determined.

The first arises under the demands of the defendant that he be awarded the custody of the children because, as he alleges, the plaintiff in rule is not the proper person to have and retain their custody. The second point, assuming that the defendant in rule has failed to satisfy the court that the mother of these children is now incapable of taking care of them and properly providing for them, has the Court the right to grant her the permission which she requests to move from the State of Louisiana with the children and to maintain her custody over them in the State of Tennessee.

Taking up these points in the order in which they were memtioned, it must be conceded that in Louisiana the right of the mother to the custody of the minor children of the marriage is paramount to that of the father unless she is found to be morally unfit or incapable of taking care of the children.

Article 157 of the LSA-Civil Code by its own terms grants the custody of the children to the party who obtains the separation or divorce, unless the judge shall, for the greater advantage of the children, order that they be entrusted to the other party. In this case it was not only plaintiff in rule who obtained the divorce but by agreement with her husband the decree of custody was in her favor. It would seem, therefore, that not only the Court but the husband also considered that it was for the greater advantage for the children, at that time, that their mother should be entrusted with their care.

The jurisprudence of this State, especially the more recent, leaves no doubt that the mother is always preferred unless, as it is stated, she is shown to be morally unfit or incapable of taking care of the children. The trial judge in this case reviewed that jurisprudence. Significantly this Court, in standing on that policy,...