
    96 So.2d 576
    Robert Pendleton BAILEY v. Claire Mixon BAILEY.
    No. 43161.
    June 10, 1957.
    Rehearing Denied June 28, 1957.
    
      Seale, Kelton, Hayes, Baton Rouge, and Donald V. Organ, New Orleans (substituted for Julian B. Humphrey who withdrew as counsel), for defendant-appellant.
    James H. Drury, Felicien P. Lozes, New Orleans, for plaintiff-appellee.
   FOURNET, Chief Justice.

The defendant prosecutes this appeal from a judgment granting her husband a divorce as well as the permanent custody of their infant daughter, contending there was not a sufficiency of evidence on the trial of the case to establish the act of adultery upon which the action for divorce was predicated, and, in any event, that the custody of the small child should be awarded the mother under the law and jurisprudence of this state.

A detailed analysis of the sordid facts of this case will not aid in our decision here. Suffice it so say that because of the nature of the case we have carefully examined the record and find there is ample evidence to support the conclusion of the trial judge that the husband was entitled to the divorce. And while the courts of the state are loathe to take a minor child from its mother, who, under the law, is preferred to the father, inasmuch as the law also considers the welfare and best interests of the child to be paramount, we cannot say, under the particular facts of this case as developed during the trial, that the trial judge abused the discretion vested in him in such cases in awarding the custody to the father.

For the reasons assigned, the judgment is affirmed.

HAMITER, Justice

(dissenting).

From my careful study of the record herein I am unable to conclude that the evidence adduced preponderately discloses the commission of adultery on the part of the defendant.

Appropriate to this cause are the following observations contained in Hayes v. Hayes, 225 La. 374, 73 So.2d 179, 180: " * * * While it is well settled that the unfaithfulness of a spouse may be established by indirect or circumstantial evidence forasmuch as, in the nature of things, it can seldom be proven by direct or positive •evidence, [cases cited] the facts and surrounding circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. [Cases cited.] In other words, the circumstantial proof in these •cases must be so convincing as to exclude •any other reasonable hypothesis but that •of guilt.” In my opinion the requirements thus enunciated, for warranting a holding that adultery has been established, are not satisfied in the instant cause.

Applicable here also is this comment contained in Savin v. Savin, 218 La. 754, 51 So.2d 41, 46: “* * * True, the mass of circumstantial evidence under consideration causes us to entertain a suspicion of her guilt; but * * * that alone cannot serve as the basis for a judgment of divorce and a denial of the mother’s right to the care and custody of her child.”

I respectfully dissent.

On Application for Rehearing

PER CURIAM.

Insofar as we affirmed the judgment of the district court awarding plaintiff a divorce, a rehearing is refused.

The incidental question of the custody of the minor child Elizabeth Kay Bailey, however, should be given further consideration. As we pointed out in the original opinion, the law considers the child’s best interest and welfare to be paramount in awarding custody in a case of this nature. Unfortunately, the record in this case is not sufficient for us to determine whether the trial judge acted wisely in awarding the child to her father, and thus a rehearing to resolve this question would serve no useful purpose. Therefore in the interests of justice we have decided to remand this case to the district court for the exclusive purpose of receiving additional evidence on the question of whether it would be more advantageous for this little girl to be entrusted to the care of her mother or of her father. Art. 157, La.Civ. Code.

This case is therefore ordered remanded to the Civil District Court for the Parish of Orleans solely for trial and decision of the issue of custody of the minor child Elizabeth Kay Bailey.

HAMITER, J., concurs in the order of remand; .otherwise he dissents.  