213 La. 318

#### STATE ex rel. GRAHAM v. GARRARD et ux.

No. 37859.

Supreme Court of Louisiana.

Feb. 16, 1948.

Rehearing Denied March 22, 1948.

Love & Bailey, of Shreveport, for plaintiff and appellant.

. Bullock & Bullock, of Shreveport, for defendants and appellees.

HAWTHORNE, Justice.

Relatrix and appellant, Mrs. Elva Rambin Graham, instituted this suit seeking the custody of her minor son, Clarence Wayne Garrard, born of her prior marriage with Clarence S. Garrard, against the paternal grandparents of the child Mrs. Jessie M. and Clyde Garrard. After trial on the merits, relatrix’ demands were refused and her suit dismissed. From this judgment she has appealed to this court.

Relatrix (now the wife of J. D. Graham) married Clarence S. Garrard in Bossier Parish, Louisiana, on January 5, 1936. Of this union one child was born on May 19, 1937, Clarence Wayne Garrard, who was approximately eight years of age at the time this case was tried in the lower court on February 5, 1945. Relatrix and her first husband, Clarence S. Garrard, were divorced in September, 1938, in Shreveport, Louisiana. The mother was given the custody of the child in the divorce proceedings, but within a month or two thereafter the child whose custody relatrix now seeks was taken by his" father to the home of Mr. and Mrs. Garrard, the child’s paternal grandparents, respondents in this suit, where the child has remained ever since, or for a period of almost 10 years. The Garrards also lived in Shreveport and were still residing there at the time of the trial.

The testimony is conflicting as to why the child was placed in the custody of his paternal grandparents, there being evidence in the record that it was due to his mistreatment by the mother, but this is denied by her. In view of subsequent events, however, in our opinion the reason is immaterial, for the evidence clearly shows that she acquiesced in, and made no objection to, the father’s taking the child and placing him in the home of Mr. and Mrs. Garrard.

After the divorce relatrix worked at various drug stores in the City of Shreveport for a nominal weekly wage until a year or so after her second marriage. On December 5, 1939, relatrix married J. D. Graham. She continued to make her home in Shreveport until some time in 1941, when she and her husband moved to Fort Worth, Texas. After leaving Shreveport, her husband worked in various cities, including Fort Worth, Dallas, Oklahoma City, and Cleveland, Ohio, until about August, 1944, at which time he and the relatrix moved to Tyler, Texas, where he had employment as manager of a shoe store. They were still *793residing in Tyler when this suit was instituted. Of relatrix’ marriage to Mr. Graham a daughter was born who was approximately two and one-half years old at the time of the trial.

Relatrix’ second husband, was earning $25.00 per week at the time of their marriage. Subsequently he was employed by several different companies, and his salary increased steadily. At the time the suit was instituted, he was earning over $300.00 a month.

Clarence .S. Garrard, divorced husband of relatrix and father of the child, entered the Armed Forces of this country on March 10, 1942, and was killed in Belgium on December 25, 1944. On Sunday, January 21, 1945, his parents, respondents herein, shortly after being notified of his death, went to Tyler to request of relatrix a waiver of her right to be appointed tutrix of her minor son, so that Clyde Garrard, the grandfather, could be appointed tutor to collect for the minor government insurance carried.by the deceased father in favor of the minor. Re-latrix agreed to sign a certain document which they presented to- her in connection with this matter, but, upon being informed that her signature to the document would not be legal if placed thereon on Sunday, she agreed to sign the document the next day and mail or take it to respondents in Shreveport. , Respondents heard nothing further from relatrix until this suit for the custody of the child was filed some nine days later, on January 30, 1945.

Relatrix in her petition averred that she was not interested in obtaining the insurance or other money to be paid by the United States government to the minor child; that she did not need the money for the support and maintenance of the child during his minority; that she was willing for the court to order the money placed in a trust fund for the benefit of the child and to be paid him at such time as he should enter college or reach the age of majority. There is no evidence in the record showing anything to the contrary.

The little boy whose custody is the subject of this controversy has been in the care and under the custody and control of his paternal grandparents since he was about 16 months old, or for a period of approximately eight years at the time the present suit was instituted (now about 10 years), and he has all this time depended upon his grandparents for parental love and care. At the time this suit was instituted, each of the grandparents was 48 years of age, and Mr. Garrard had been established in the retail ice business for 26 years; The trial judge, who saw the child and heard the testimony of all witnesses, pointed out in his reasons for judgment that the child was well cared for, loved, properly treated, well mannered, happy, contented, and well dressed. From our reading of the record we are convinced that these grandparents loved this child as if he were their own.

During the many years while these respondents have had the care and custody of the child, relatrix has contributed vei'y little for his care and maintenance. However, she did on special occasions, such as Christmas- and birthdays, send him gifts. It is true that for a few years after her divorce from the father of the child she was financially unable to contribute anything to his support or maintenance, and, if this fact alone prevented her from claiming his custody, the courts would not now construe it against her and would not deprive her of the child’s custody. She stated that in recent years she did not contribute anything to the child’s care and maintenance because she was of the opinion that he was being well treated and properly provided for and was not in want.

Under the law of this state, the parent has a superior right to the custody of his or her minor children over third persons, and relatrix relies principally on this rule of law to obtain the care and custody of the child in the instant case. As pointed out in numerous decisions of this court, however, this right of the parent is not unquestionable or absolute, but must yield to the superior right of the State to deprive a parent of the Care and possession of the child in the event the physical, moral, or mental welfare of the child requires it. State ex rel. Stockstill v. Spiers et ux., 170 La. 454, 128 So. 275; State ex rel. Pitre v. Lefort, 179 La. 919, 155 So. 435; State ex rel. Castille v. Cooke, 183 La. 404, 164 So. *794153; State ex rel. Guinn v. Watson, 210 La. 265, 26 So.2d 740; and. authorities therein cited.

The trial judge in his reasons for judgment pointed out: “One thing that impressed the court from the evidence in the case (as well as the attitude of relatrix on the stand) that there was a lack of motherly-affection by relatrix for the minor, as the court is able to appreciate or understand mother love. * * * ”

We, like the trial judge, are impressed by the mother’s apparent lack of interest in the welfare of the child and her indifference to him over a long period of time. Although relatrix remained in Shreveport for about two years after the child had been taken to live with his grandparents, she saw him infrequently and displayed little interest in his welfare. So far as the record shows, after she left Shreveport she never wrote to inquire as to the child’s happiness, well-being, financial situation, and health; certainly she was not in close correspondence with Mr. and Mrs. Garrard, and, if she heard frequently of the child through her mother, who lived in a small town near Shreveport, or her sister, who lived in Shreveport, the testimony does not bring out -this interest on her part. She saw the child during the years spent away from Shreveport on infrequent occasions only, when she returned to visit her mother. The fact that she has given no valid reason for this lack of interest, and the fact that she herself was on good terms with the Garrards and had free access to her child at all times clearly indicate to us that the trial judge was correct in his appreciation of the evidence in this case.

The child is well, happy, and contented with his grandparents, who have given him the love and affection of a real father and mother, and we believe that his happiness and welfare — the paramount considerations in this case — would be best served by leaving him in their care.

This court has said that reasonable latitude must be left to the trial judge in matters affecting the welfare of children, and that his judgment based upon the facts disclosed in any case is entitled to great weight. State ex rel. Johnson v. Ashmore, 197 La. 971, 2 So.2d 897; State ex rel. Guinn v. Watson, supra, and authorities therein cited.

For the reasons assigned, the judgment appealed from is affirmed at relatrix’ costs.

FOURNET, J., dissents.

McCALEB, J., concurs in the decree.

O’NIELL, C. J., absent.

BOND, J., dissents with written reasons.

BOND, Justice

(dissenting).

Under the express provisions of the Revised Civil Code and under the jurisprudence of this state, a parent has a superior right to the custody and control of his oilier child over third persons; and upon the death of the father the mother is rightfully entitled to the custody of a minor child, unless strong reasons are shown that she should be deprived of her natural and legal rights. R.C.C. Arts. 216 and 250; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411, and Higginbotham v. Lofton, 183 La. 489, 164 So. 255. The jurisprudence is also clear that courts are not authorized to interfere with a parent’s right to his or her child except in cases where the physical or moral welfare of the child is endangered by neglect or abuse, or immoral habits on the part of the parent. State ex rel. Perdue v. Carkuff et al., 182 La. 920, 162 So. 729; State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98.

The respondents herein base their claim and a denial of the relatrix’ rights to the care and custody of her minor child on the ground that the relatrix has neglected and abandoned her child and that the welfare of the minor will be best served by allowing him to remain with them.

In the majority opinion it is said: “We, like the trial judge, are impressed by the mother’s apparent lack of interest in the welfare of the child and her indifference to him over a long period of time. * * * ” And the conclusion reached by the majority opinion is that the happiness and welfare of relatrix’ minor son would be best served *795by leaving him in the care of his grandparents.

Having carefully reviewed the evidence, I am constrained to differ with the above holding, finding nothing in the record or the law applicable to this case which convinces me that the relatrix is not a suitable person and should not he given the custody and care of her minor son.

It appears that after the relatrix obtained her divorce in 1938, her husband defaulted in the payment of $12.50 per week alimony, and being without any financial means whatsoever, she permitted him to take their son, then a year and a half old, to the home of his parents with whom he then lived and where the child still remains. Relatrix thereafter secured employment and, although testimony was introduced to show that she did not visit her child in the home of the paternal grandparents or have him at her home, it was shown that she did visit him at the home of her parents and at the home of her sister, and that she sent him gifts on holidays and birthdays. (Thus the child was not neglected nor isolated but was included in the mother’s affections and those of his mother’s family.) Relatrix remarried in December 1939. It is shown that her second husband was transferred from state to state in his employment, and, because of this, in addition to the fact that . for several years — 1939-1944—his salary was small, it would not have been conducive to the interest and welfare of the child to have been taken from the home of his father during that time. It was only after relatrix and her husband established their home in Tyler, Texas, in 1944, where he is manager of a shoe store and earns a salary and commission of about $320.00 per month, that relatrix for the first time since the father took the child, was in a position to care for the child. The father of the child then being in the Military Service, relatrix refrained from making demand on the grandparents for the custody of her minor son. However, in January, 1945, upon learning of her former husband’s death overseas, relatrix immediately instituted suit for the custody of her son.

The principal question presented is whether the relatrix, who has' a superior right to the custody and possession of her child, is, for any of the reasons advanced by the defendants, unworthy of the tutorship and possession of her child, or is incapable of taking care of him.

The trial judge held that the mother had neglected and abandoned the child and that there was a lack of “mother affection in her attitude toward the minor as the court is able to understand mother love.” Unquestionably, courts have some discretion in dealing with the custody of minor children, but that discretion has to be based on solid and substantial grounds.

In State ex rel. Kearney v. Steel et al., 121 La. 215, 46 So. 215, 16 L.R.A.,N.S., 1004, it was held: “A widow, who by reason of her necessitous circumstances at the time places her little son in the care and custody of its paternal grandmother, and leaves him with her for several years, does not thereby forfeit her right to reclaim her child when she comes later to better fortune. Her act in so leaving the child did not imply a promise on her part never to retake him. * * * ”

The objections urged by the grandparents to the surrender’ of the child to his mother are such as would naturally arise from the situation of taking a child from them who has been greatly endeared to them. It has been established that the child is well cared for and secure in the home of his grandparents and is - contented there. On the other hand, the writer‘of this dissenting opinion is satisfied that there is nothing in the record to indicate that re-latrix’ minor son will not attain that position and soon be well satisfied and happy if placed in the care and custody of relatrix, his mother. As is shown by the record, relatrix and her present husband'are willing and able to support her minor son. They are respectable people and enjoy a good reputation in the community in which they live.

The main charge is of relatrix’ neglect, indifference and lack of interest in her child’s welfare over a period of several years. I am of the opinion that relatrix did not by leaving her child with its paternal grandparents, after its father had joined the Armed Forces, forfeit her right to his’ *796care and custody; nor did this imply a promise on her part never to retake him. I am of the opinion that she permitted the child to be taken from her by the father only after she realized that by being forced to earn her own living she would be unable to personally care for him. She might well have felt that she had to sacrifice her own feelings for the child’s good. While she was not in a position to support him, she was willing to leave him with others better able to supply his wants. This fact by no means would exhibit “lack of mother affection” for the child. It appears that relatrix was married at the age of 16 years and at the age of 19 years she was experiencing the disappointments and difficulties of a home wrecked by divorce, and was left entirely without financial means and with an infant a year and a half old to support. Considering all of these facts, I feel justified in stating that relatrix did not wilfully surrender or abandon her child but that she had the intention and hope of bettering her own condition so that she could later reclaim and support him. She is now ready and able to do so and should not be deprived of her son’s custody and control. No evidence was submitted to show that relatrix has led a frivolous and gay life nor has her moral fitness been questioned. In the absence of such showing, there is not sufficient reason why relatrix should not be awarded the custody and control of her minor son.

As for the grandparents, the record shows that relatrix has always been “on good terms” with them, and I believe she would not deprive them of seeing the child, once her authority and rights are recognized. The child’s feelings, if there should be any present disappointment to him, would naturally heal in time.

I cannot agree with the judge of the lower court that his holding docs not preclude the mother from claiming the tutorship of the minor or from future actions to regain the custody of her child. Once the care, custody and control of the minor has been placed in the grandparents it can not be taken away from them without just cause.

For these reasons, I respectfully dissent from the holding in the majority opinion.