Couty v. Ayres

248 So. 2d 399, 1971 La. App. LEXIS 6076
Louisiana Court of Appeal·Decided May 10, 1971·No. No. 4416·Published

Opinion

STOULIG, Judge.

This suit involves a dispute over the custody of the two daughters of June Ayres Couty and Leo L. Couty, now legally separated. The parties were married in 1956 and established their matrimonial domicile in St. Bernard Parish. Of this union were born three children: Julee Ann, Lisa Lee and Christopher L. Couty, aged at the time of trial 11, 8 and lJ/$ years, respectively.

On September 10, 1968, June Couty, upon the advice of her attorney, left the matrimonial domicile and moved with her three children to the home of her parents in Metairie, Louisiana. Allegedly, her relationship with Leo Couty had deteriorated to the point that it was adversely affecting the children, and she was physically ill and in a mentally wrought condition. The children were placed in a public school but had difficulty adjusting and wanted to return to- the Christ Lutheran School in which they were formerly enrolled. Several weeks later, she voluntarily and extra judicially surrendered their custody to her husband in order that they could be readmitted to the school which they had previously attended.

Shortly thereafter, Mrs. Couty, with her infant son, moved to Baton Rouge where she commenced working for the State Department of Labor. She resided there until February of 1969, at which time she returned to her parents’ home. That same month she was hospitalized and underwent three operations. After a three-month recuperative period, she returned to Baton Rouge where she worked for one month before being transferred, at her request, back to New Orleans in May of 1969.

In the meantime, on January 23, 1969, Leo Couty filed a suit for separation from bed and board praying that he be granted custody of the two minor daughters, Julee and Lisa, and asked that the custody of their minor son be awarded to his wife. In her responsive pleadings, filed on May 21, 1969, Mrs. Couty formally requested the custody of her two minor daughters. On June 9, 1969, a rule for custody was filed and tried on July 1, 1969, resulting in a judgment on July 8, 1969, granting the temporary custody of the two minor daughters to Leo Couty and the temporary custody of the minor son to his wife.

On the trial of the merits it was stipulated by counsel that Mrs. Couty would present no evidence in opposition to the separation, leaving as the only contested issue the custody of the two girls. A judgment of separation was rendered in favor of Leo Couty which awarded him the custody of the daughters and granted to June Ayres Couty the custody of the remaining child.

The only question presented by this appeal is whether the lower court committed reversible error in awarding the custody of the minor girls to their father.

LSA-C.C. art. 157 provides that in cases of separation and of divorce the party who shall have obtained the judgment also obtains custody of the children unless the judge shall determine that it is to the greater advantage of the children that some or all of them be entrusted to the care of the other party.

The jurisprudence, in interpreting article 157, has consistently held that the trial judge be given a wide range of discretion in custody disposition. However, this discretion is circumscribed by other equally well-established rules, also derived from article 157.

The foremost of these is that the primary consideration in making custody determinations is the welfare of the children. In discussing this point the Louisiana Supreme Court in White v. Broussard, 206 La. 25, 18 So.2d 641 (1944), stated at page 642:

“Our lawmakers long ago very sagaciously turned from the antiquated theory of punishing the party cast in a divorce proceeding to the far more important consideration of the welfare of [401]*401those children that are unfortunately and unhappily swept along in the turbulent wake of dissolved marriages * *

In fulfilling this objective the courts have consistently held that it is for the best interest and welfare of these children that the mother be awarded their custody, unless she is shown to be morally unfit or otherwise unsuitable. The Fourth Circuit summarized this rule in Tullier v. Tullier, 140 So.2d 916 (La.App.1962), at page 919:

“ * * * [T]he general rule is that the mother’s right to the custody of the children, especially when they are of tender age, is paramount to that of the father, and such right should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases where it is to the greatest advantage of the children that their custody is entrusted to the father. [See omitted citations.]”

A review of the record by this court fails to reveal any evidence, whatsoever, which would indicate that Mrs. Couty is morally unfit or in any way less than fully capable of caring for her children in a satisfactory manner. To the contrary, all 14 witnesses, including Leo Couty, who testified at trial were unanimous in stating that she was a capable and fit mother. Though she is presently employed there is no apparent reason why she cannot care for the children. She makes a substantial salary and lives in Metairie with her parents, both of whom testified that they are willing and are physically, as well as financially, able to help her care for the children.

The only statement by the learned trial judge regarding his decision relative to the custody of the children appears in his written reasons for judgment, in which he states: .

“Relative to custody, the Court was not convinced of defendant’s alleged reasons for leaving the family domicile, and the Court considered the prolonged absence and separation by the defendant to be both an abandonment of the two minor daughters as well as of their father. * * *"

With this conclusion we cannot agree. A review of the testimony contained in the record shows that at the time of Mrs. Couty’s decision to temporarily place the children with their father (and there was no evidence introduced which would indicate that it was ever intended to be a permanent solution) she was confronted with the need for surgery and was in a highly nervous condition and was motivated by what she considered were at that time the best interests of the children. During the time she was in Baton Rouge she continually exercised her visitation rights with the children and has evidenced her deep love and vital concern in their future welfare and happiness.

Faced with a similar situation in Tullier v. Tullier, supra, the court stated at page 920:

“ * * * Our jurisprudence teems with cases wherein the mother who was forced by reasons of temporary conditions to allow the father to have the children was permitted to reclaim them when she attained the ability of caring for them. It may be true in this case thát the children might know their father better because of the three years they have been in his custody, but that circumstance does not constitute a reason for denying their custody to the mother. Unfortunately, until recently, she was in no position to claim them. We are unable to conclude that it would be to the greater advantage of the children to leave them with the father. Young minds respond readily to influences such as love, association and environment, and we cannot believe a change in custody would adversely affect the children’s welfare.”

[402]*402We are convinced that Mrs.

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Couty v. Ayres, 248 So. 2d 399, 1971 La. App. LEXIS 6076 (La. Ct. App. 1971).

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