King v. KingKing v. King
Lead Opinion
Wе are concerned herein with a devolu-tive appeal from the denial of a rule to change custody. Plaintiff and defendant were married in Natchez, Mississippi on November 25, 1960 and two children were the issue of that marriage, Carolyn Elizabeth, born August 3, 1961, and Ashley Ann, born July 22, 1962. In January, 1964 the family moved to Alexandria, Louisiana. There were matrimonial difficulties and on November 17, 1967 defendant obtained a judgment of separation from bed and board which awarded him custody оf the minor child, Ashley Ann, and plaintiff custody of the minor child, Carolyn Elizabeth. On December 16, 1968 defendant obtained a judgment of final divorce which reiterated the рrevious judgment’s custody order. Both parents were given reasonable visitation rights but the visitation rights of plaintiff were subsequently changed on plaintiff’s motion to provide for specific periods when Ashley Ann would visit with plaintiff. Finally on June 18, 1970 plaintiff petitioned the court for custody of the child, Ashley Ann, and for child support in the sum of $100.00 per month. After trial on the rule, judgment was rendered on September 4, 1970 rejecting plaintiff’s rule and demands at her costs. Plaintiff thereupon appеaled to this court.
The evidence discloses that the defendant has had custody of Ashley, now eight years of age, since the separation judgment of November 1967. At first, following the separation, both defendant and Ashley resided with his parents, but in 1969 defendant moved back into what had been the matrimonial domicilе. He set aside a room therein for Ashley but allowed her to continue living with her grandparents. He explained this by saying that Ashley had grown accustomed to living with hеr grandparents and he did not wish to uproot her again, and further, that he must work for his living and that his job often makes it necessary for him to spend the night away from homе. The majority of Ashley’s clothing, toys, and other effects are kept in the home of her grandparents and the remainder are in defendant’s residencе which is located approximately one block away.
Defendant visits in his parents’ home at every opportunity, usually daily and often spends the night thеre. Frequently Ashley spends the weekend at her father’s home. Her father retains exclusive paternal authority over her and has, in no way, abdicatеd that function. He often takes his daughter and her playmates on outings such as crawfishing, picnics, etc., and has on occasion given the children instruction in science projects at her school.
The plaintiff mother has, since the divorce, been remarried. Her present hus
The plaintiff is a registered nurse and from all indications, an adequate mother. She cares for her daughter Caroyln in excellent fashion, affording her thе love and attention that a girl of tender years requires. Since her remarriage there is no question but that she has the pecuniary means of adequately supporting both of her daughters. Neither is there any doubt of her affection for Ashley. She has at all times exercised her visitation rights with diligence and has kept in close contact with the child.
Twenty-three witnesses testified at the trial and the net effect of their testimony was summed up by the trial judge when he stated in his reasons for judgment that he had never seen a case * * * “where there was such apparent love and affection for a child and where that affection was returned so readily by the child to all people concerned.” We agree with the trial court. With the exception of some unсonvincing testimony on plaintiff’s part to the effect that the child was not as well adjusted as she might be, no one had anything but favorable words for the parеnts, grandparents, children, and their relationships with each other. In view of the broken home situation, we are convinced that Ashley is exceptionаlly well adjusted. She is well cared for, greatly loved, has excellent manners, and is, in every way, a normal child. These same observations could, with equal accuracy, be made of her sister, Carolyn.
The applicable law is to be found in Decker v. Landry,
Plaintiff cites the cases of Acomb v. Billeiter, La.App.,
In the instant case the father is a natural parent, is living, and as seen above, is carrying out his paternal duties diligently, affectionately and regularly. The fact that
In the Nugent case the child was but seven months of age when she was forcibly taken from her mother by the father. Six weeks later the father obtained custody by a default judgment, at which time the question of custody was, of course, not litigated. One month after that the mother obtained custody by a judgment resulting from a contradictory hearing, and her daughter had been with her since that time. We affirmed the judgment granting custody to the mother. In the case at bar however, the child is eight years of age and has become аccustomed to live with her father and grandparents over the past three years. As stated in Nugent, supra, “ * * * one of the important factors to be considered in determining whether a change of custody should be decreed is whether it is to the best interest of the child that it be removed from a home to whiсh it has become accustomed and placed in another.” In this case we do not think it is.
For the above and foregoing reasons the judgment of the trial court must be and the same is hereby affirmed. Costs in both ■courts are to be borne by plaintiff-appellant.
Affirmed.
Concurrence Opinion
(concurring).
I do not find it necessary to discuss or base this decision on the two-fold burden recognized in Decker v. Landry,