
    STATE of Louisiana ex rel. Mrs. Bernice LOTT v. Mrs. Mary COURTNEY.
    No. 6413.
    Court of Appeal of Louisiana. First Circuit.
    July 1, 1965.
    Rehearing Denied Sept. 27, 1965.
    Writ Refused Nov. 23, 1965.
    
      L. B. Ponder, Jr., of Ponder & Ponder, Amite, for appellant
    Frank J. Gremillion, of Gordon & Clesi, Baton Rouge, for appellee.
    Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.
   LANDRY, Judge.

This is a habeas corpus proceeding where-

Relatrix, Bernice Lott, formerly married to and divorced from F. E. Courtney, seeks to recover custody and control of her three minor children from their step-mother, Mary Courtney, Respondent in writ, widow of said F. E. Courtney, now deceased. The trial court rendered judgment in favor of respondent continuing a prior decree granting custody of the children to appellee, Mrs. Courtney, and from said decision Relatrix has taken this appeal.

The case at bar appears novel in that, so far as we are aware, it presents for initial determination the rights of a natural mother to the custody of her children as opposed to those of a step-mother.

Narration in brief of the events preceding institution of the present habeas corpus proceeding is warranted to afford a clearer understanding of the issue of law involved herein. The children concerned in this controversy, namely, Betty Jo. Courtney, Davie Lee Courtney and Jackie Marie Courtney, ages 13, 9 and 8 years, respectively, were born of Relatrix’s marriage to F. E. Courtney, deceased, which union was dissolved by judgment rendered in favor of said decedent in 1961 on the ground of adultery, which judgment also awarded custody of the children in question to their now deceased father. Subsequent to his divorce from relatrix, decedent, F. E. Courtney, was married to respondent, Mary Courtney, with whom decedent lived until his demise on October 24, 1963. After decedent’s marriage to respondent, the children concerned lived with respondent and their father until the latter’s death on the hereinabove mentioned date. In November, 1963, after Courtney’s death, respondent initiated proceedings in the Twenty-first Judicial District Court, Livingston Parish, to obtain care, custody and control of the minors in question. The matter was tried contradictorily with relatrix and resulted in judgment in favor of respondent stepmother granting her permanent care, custody and control of the children in question. Relatrix did not appeal the award of custody to respondent and that judgment has now become final. Relatrix then instituted the present habeas corpus proceeding to recover custody of her children from respondent and was unsuccessful in the Court below as hereinbefore previously mentioned.

In essence learned counsel for appellant maintains respondent should be relieved of the care, custody and control of said minors and their custody awarded relatrix for three reasons, namely: (1) Relatrix as the natural mother has the absolute right to custody as against all other parties unless proven morally unfit; (2) The best interest of the children will be served by awarding their custody to appellant; (3) Respondent is morally unfit to have the custody of minor children; and (4) Respondent refuses to permit Relatrix reasonable opportunity to visit her children and is engaging in conduct and practices designed to alienate the children from their natural mother.

On the other hand, Respondent has made no effort to re-introduce evidence of Re-latrix’s alleged moral unfitness which issue was considered in the previous contest between the litigants in which Respondent was granted custody. Instead, appellee relies upon the judgment rendered in November, 1963, by which she was awarded custody.

After the trial below, our esteemed colleague of the trial court vacated the rule and discharged the writ on the finding that the former award of custody to Respondent was in the best interest of the children. On this determination he decreed that his former award of custody to respondent “be continued in full force and effect until further orders of this Court.”

On this appeal relatrix specifies that the trial court erred in refusing to recognize the absolute right of the mother to custody of her children as their surviving parent; failing to award custody of the mother in a proceeding wherein her moral fitness was neither challenged nor attacked; and granting custody to respondent whom appellant maintains the record shows to be a person morally unfit to have the custody of minor children. In this latter regard, relatrix charges generally that respondent is a “bar and lounge butterfly and pick up for married men and who neglected tire children.”

It is settled jurisprudence that in cases involving custody of children the primary concern of the Court is the welfare and best interest of the children and this consideration must prevail over the parental right to custody in cases wherein the mentioned principles conflict. Dungan v. Dungan, 239 La. 733, 119 So.2d 843; Brode v. Hatcher, 233 La. 636, 97 So.2d 422; Lyckburg v. Lyckburg, La.App., 140 So.2d 487.

As a general rule in custody matters the mother is preferred above all others unless she be shown to be morally unfit. The reasons for the rule being that generally the mother is better suitable to rear and educate the children, attend to their personal needs, teach and instruct them along social, cultural and religious lines, guide them during their formative years and supervise their upbringing so as to insure their maturing as individuals of the highest character. Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456.

However, the rule hereinabove lastly stated is subject to the exception that it is without application in those cases wherein a change is sought in an order of custody previously granted. Decker v. Landry, 227 La. 603, 80 So.2d 91; Pepiton v. Pepiton, 222 La. 784, 64 So.2d 3; Matheny v. Matheny, 205 La. 869, 18 So.2d 324; Smith v. Smith, La.App., 141 So.2d 84; Lyckburg v. Lyckburg, 140 So.2d 487.

In support of the contention that relatrix has an absolute right to custody of her children in this proceeding, esteemed counsel for appellant cites and relies upon Lyckburg v. Lyckburg, supra, and Brode v. Hatcher, 233 La. 636, 97 So.2d 422. The Brode case, supra, is also relied upon by relatrix as authority for the contention the trial court erred in failing to award her custody because her moral fitness was not put at issue and the record affirmatively establishes her fitness. In this connection learned counsel for relatrix cites the following language from the Lyckburg case, supra:

“At the outset it should be borne in mind that we are here concerned with an initial award of custody and that, under such circumstances, it is the settled law of this state that the mother has paramount right to custody and will not be deprived thereof unless proven unfit to discharge such trust. Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456. Equally applicable to the instant case are the principles that in cases involving custody of children, the primary concern of the court is the welfare and best interest of the children and the mother should be awarded custody of young children unless she is shown to be morally unfit or otherwise unsuitable, Boatner v. Boatner, 235 La. 1, 102 So.2d 472; where the mother of a minor child is not shown to be unfit, she is generally the preferred parent in a matter of custody, Hathorn v. Hathorn, 237 La. 554, 111 So.2d 770; parents have a natural right to the care and custody of their children but such right is not absolute and must yield to the superior right of the state to promote, preserve and protect the moral, .mental and physical welfare of children, Dungan v. Dungan, 239 La. 733, 119 So.2d 843.”

It is to be noted, however, that the key phrase in the foregoing quotation is the introductory clause which qualifies the first sentence and clearly indicates the court was therein concerned with an initial award of custody. In the case at bar, however, we are concerned with an attempt to change custody previously awarded after full adjudication of the facts and issues. Of further significant note is the fact relatrix makes no reference to the previous contest between the parties at bar and proceeds as though the judgment awarding custody to respondent does not exist. Respondent, however, has specially pleaded the former judgment, and the District Court took judicial notice thereof by repeatedly referring to the former decree and commenting thereon throughout the trial below. We cannot ignore the prior judgment for reasons hereinafter discussed.

Counsel for appellant quotes the following from State ex rel. Brode v. Hatcher, 233 La. 636, 97 So.2d 422:

“We agree with the trial judge that in a case of this kind, involving the custody of a child, someone will be very badly hurt. However, our jurisprudence is well settled that:
‘ * * * the courts are not authorized to interfere with a parent’s authority over his or her children, except if the court is satisfied that he, or she, will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them. Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin v. Talbot, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley, 172 La. 266, 134 So. 87, and the burden is on those resisting the parent’s right to show his or her disqualification or unfitness to have the custody of the child. State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729; Heitkamp v. Ragan, 142 La. 81, 76 So. 247. * * *’ State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760, 762 (Emphasis ours.)

In Heitkamp v. Ragan, 142 La. 81, 76 So. 247, we clearly stated:

‘The law clearly makes it the privilege and the duty of the father to rear and provide for his children; and, on the death of either spouse the tutorship of the minor children belongs of right to the surviving father or mother. C.C. 250. The child remains subject to the control of its parents, or the surviving parent, until his or her majority or emancipation. C.C. 216. And the right of appointing a tutor, whether a relation or a stranger, belongs exclusively to the father or mother dying last. C.C. 2577 ”

Counsel for appellant fails, however, to note the three paragraphs following the above quotation from the Brode case, supra, which clearly state that the right of a surviving parent to the custody of his or her minor children is paramount is nevertheless “is not an absolute one and must yield to the superior right of the State to deprive a parent of the custody of his child if the best interest and welfare of the child require it. (Cases cited.)” Appellant’s counsel also apparently fails to note that in the Brode case, supra, the matter was remanded to the lower court for a determination of the fitness of the surviving father’s sister who lived with him and would assist in rearing the child in question. It is to be further noted the Brode case, supra, was an instance of initial custody determination; it was not an effort to modify or change a prior award of custody.

Counsel for appellant also cites cases which may be divided in two general classifications. First, those holding that as between mother and father, it is in the best interest of a child that his custody should be awarded to the mother. Second, cases holding a parent has a paramount interest and right to custody of his or her children which right will not be interfered with except in instances where the court is satisfied that the parent will neglect the children or expose them to improper influences, in which latter event the court is justified in making other disposition of the children. These latter cases also hold that the burden rests on those opposing the right of parental custody to show the parent’s disqualification or unfitness. See Heitkamp v. Ragan, 142 La. 81, 76 So. 247; State v. Garza, 217 La. 532, 46 So.2d 760.

Unquestionably the cases cited by counsel for relatrix state the law which the district court was bound to apply in the initial custody proceeding between the litigants presently before the bar. Under the circumstances shown herein, we must assume that our able colleague below gave re-latrix the benefit of the applicable rules in the prior proceeding. The judgment adverse to relatrix was not appealed and became final before institution of the present action. The transcript, if any exists, of the evidence adduced in the prior proceeding was not introduced in this proceeding, therefore, we have before us no inkling of the evidence presented which custody was initially awarded respondent. We must, however, assume the judgment rendered was based on evidence which justified the trial court’s decision.

Appropos the case at bar is the following language contained in Smith v. Smith, La.App., 141 So.2d 84:

“Appellant cites the cases of Willis v. Willis, 209 La. 205, 24 So.2d 378, White v. Broussard, 206 La. 25, 18 So. 2d 641, and Cannon v. Cannon, 225 La. 874, 74 So.2d 147, as authority for his contention that a wife and mother* has the paramount right to the custody of the minor child born of the marriage and this right can only be overcome by showing that the mother is unfit to care for the children. However, these cases are inapposite for the reason that the father in the instant case has a judicial decree granting him the custody of their minor child, whereas in the cited cases the matter was before the court for the first time.

The issue in this case is similar to that presented in the case of Gentry v. Gentry, La.App., 136 So.2d 418, wherein we held at page 421:

‘ * * * that a party seeking modification of a previous custody decree bears the burden of proving a material change in conditions and also proving that present conditions and circumstances are detrimental and inimical to the child’s welfare.

See also the cases of Decker v. Landry, 227 La. 603, 80 So.2d 91; Pepiton v. Pepiton, 222 La. 784, 64 So.2d 3, and Matheny v. Matheny, 205 La. 869, 18 So.2d 324. Appellant has failed to carry this burden.”

In Gentry v. Gentry, La.App., 136 So.2d 418, we 'reviewed at length the principles of law applicable herein, as summarized in the quotation from the Smith case, supra.

' We see no reason to create an exception to the rule requiring the party seeking modification of a custody award to show a material change in status creating circumstances inimical to the child’s welfare, merely on, the ground the contest is between á natural parent and one not a p'arent. The obvious reason for the rule, irrespective of the relationship of the contending parties for custody, is that custody once fixed and established, should not be disturbed except in cases where its continuance will adversely affect the welfare of the child or children involved. Manifestly, to constantly and continually change custody upon slight pretext can only serve to keep the children in a state of unrest, anxiety and uncertainty in which they can experience no assurance of stability. To repeatedly uproot them from surroundings, friends and acquaintances to whom they have grown accustomed will only serve to promote emotional distress, interrupt their education and inculcate the feeling they are totally unwanted and unloved. These considerations, we believe, obtain irrespective of the parties vying for custody and should apply once custody is established albeit the controversy may arise between a natural parent and one unrelated to the minors involved.

Considering the present matter in the light of the rules hereinabove found applicable, we note that relatrix herein neither alleged nor attempted to show any change in the conditions which led to granting of custody of the children to respondent. Relatrix showed she is remarried and financially able to care for the children but these same conditions existed at the time custody was awarded respondent.

Appellant produced numerous witnesses, mostly relations of the children’s deceased father, who testified they felt the natural mother should have custody as opposed to a stepmother who was no blood relation. These same witnesses conceded, however, they were the same persons who voluntarily testified at the prior custody hearing that relatrix was unfit and the best interest of the children would be served by awarding their custody to respondent. One of the witnesses, decedent’s mother, testified she had even spoken to the trial judge privately and urged that he award custody of the children to respondent on the occasion of the first suit.

The substance of the testimony of the several witnesses produced by relatrix is that they changed their attitude because they do not have the opportunity to see the children as often as they would like and feel that the children are becoming estranged from the family. They readily ex- . press the view they would have greater contact with the children if custody were awarded the mother.

The record, however, clearly preponderates in favor of the conclusion respondent has done nothing to alienate the children from their blood relatives. Similarly, the record is barren of credible evidence to support appellant’s charge that respondent is morally unfit, to retain custody of the children in question. There is, however, some evidence of a purely hearsay nature tending to indicate respondent was the subject of neighborhood gossip which the record shows to be without foundation. Respondent’s closest neighbors testified they were in a,position, to observe and hear the arrival and departure of respondent and her. friends at all times of day or night; they denied knowledge of any events, circumstances or actions on respondent’s part which would in any way support appellant’s charge of moral turpitude.

The record establishes that respondent has cared for the children to the best of her ability in accordance with her financial circumstances. She is very solicitous of their welfare and has made a concerted effort to instill in her wards a feeling of attachment and affection for their natural mother and blood relations, even to the point of insisting that the children visit their relatives when they are reluctant to do so. It appears respondent, is particularly attentive to the special needs of Davie, the 9 year old boy who is mentally retarded, has seriously impaired vision and requires constant supervision because of his inability to properly bathe himself and control his normal bodily functions without assistance and guidance. In this respect it appears respondent by her own efforts has materially improved the child’s speech, secured an operation which has greatly increased the sight in one eye and is considering additional surgery in an effort to' afford the ■child greater vision in the other eye.

From the record before us we discern no evidence of a material change in the conditions which existed when respondent was initially awarded custody in November, 1963. Moreover, nothing in the record herein indicates the present circumstances and environment in which the children are living is detrimental or inimical to their safety or welfare. The fact that some of the relatives who heretofore felt respondent was better able to care for the children have since changed their minds is not the sort of change envisioned by the rule applicable to the instant case.’

We readily concede judgments awarding custody of children are not irrevocable but rather are subject to modification when changes affecting their welfare necessitate removal of children from an unfavorable environment. On the other hand, judgments awarding custody, after a full hearing are not to be lightly ignored and will be disturbed only when it is clearly shown the welfare of the children so dictates because of a change which has intervened since the initial custody award. We have herein previously enumerated'the several reasons why we deem it inadvisable to constantly shift children back and forth between different custodians and do not deem it necessary to repeat them at this juncture.

Accordingly, the judgment of the trial court is affirmed at relatrix’s costs.

Affirmed.

ELLIS, Judge

(dissenting).

It must be borne in mind in considering this case that it is a suit for the custody of Betty Jo Courtney, age 13, Davie Lee Courtney, a retarded child, age 9, and Jackie Marie Courtney, age 8, by the plaintiff-mother against the defendant-stepmother. The father had originally secured a divorce and custody of the children’from the plaintiff-mother in a prior suit on the ground of adultery, had married the defendant-stepmother and had lived with her for approximately two and one-half years on the date of his death, October 24, 1963. On the date that he died the plaintiff-mother had not remarried but did so on November 5, 1963 and within several weeks after the death of the father she filed a suit against the surviving defendant-stepmother seeking the custody of her three children. However, on November 22, 1963, judgment was rendered denying her the custody of her children and granting the custody to defendant-stepmother. Neither of the records in those two suits was introduced or made a part of the record in the present suit. Any knowledge of the facts or issues in those two prior suits, insofar as this court is concerned, was obtained by virtue of questions propounded by the members of the court during argument. For example, we were told that the father obtained the custody of the children in the same suit that he secured a judgment of divorce on the ground of adultery. However, the word adultery is not mentioned in the present suit, although the lower court, in questioning plaintiffs witnesses at various times and at length, was, I am sure, referring to that fact without specifically stating it. Whether the suit for divorce by the deceased father was contested I do not know but I gained the impression that it was not from the argument. This suit is immaterial and should not be considered in arriving at a proper decision in this case between the mother and stepmother. Liner v. Liner, 222 La. 789, 64 So.2d 4. However, if it is considered, there is some testimony brought out by the court during its examination of Mr. Julius Graham, witness for the plaintiff, touching upon'the question, as follows:

“BY THE COURT: Do you know any of the circumstances about the manner in which Mrs. Lott was deprived of the children?
A: Well, now everybody in the country * * *
BY THE COURT: Now wait, I am just asking do you know of the facts in connection with her having been deprived of the children?
A: Well that girl was beat 'and knocked around and just drove away from home by being beat.”

The above testimony stands in the record unrefuted and without any further question or proof to the contrary. . .

I gained the impression from the argument that there was no question of the moral unfitness of the mother in the suit which she filed immediately after the death of the father to obtain the custody of her children from the defendant-stepmother. The record does show that the father and mother of the deceased husband, the paternal grandfather and grandmother of the children involved in this custody suit, testified in the prior custody suit between these parties on behalf of the defendant-stepmother but there is not one line of testimony in this record that they testified in that suit that this plaintiff-mother was morally unfit to have her children. It is to be remembered that both of them are testifying now on behalf of the plaintiff-mother and stated that at the time of their son’s death the plaintiff-mother herein was not married, but was before the suit was tried and decided, and at that time they admit they asked the Judge to award the custody to the defendant-stepmother as they thought their son would have wanted it that way. As a matter of fact, one gains the impression from reading this record that the main reason the lower court awarded the custody of these children to the stepmother in the first suit immediately after the death of the father was due to the testimony of these grandparents who are now testifying for the plaintiff-mother and who give good sound reasons for doing so in this case. According to this record,, they did not testify that the mother was morally unfit in the prior case or that it was even an issue in the prior case. The record in the prior suit for custody between this mother and stepmother was not filed and made a part of this record.

I note in the majority opinion the following statement:

“On the other hand, Respondent has made no effort to re-introduce evidence of Relatrix’s alleged moral unfitness which issue was considered in the previous contest between the litigants in which Respondent was granted custody. Instead, appellee relies upon the judgment rendered in November, 1963, by which she was awarded custody.”

As previously stated, we do not have the record in that suit and there is not one line of testimony in the present record that shows that the issue of the moral unfitness of this mother was even put at issue in the previous contest.

I believe the testimony of the grandmother and the grandfather supports my contention that the moral unfitness was not an issue or made an issue and if it were it was not proven in the prior case. The grandmother, testifying on behalf of the plaintiff-mother in this case, was examined by the Court as follows:

“BY THE COURT:
Q: Mrs. Courtney for the sake of the record you and your former husband, paternal grandfather of the children, are the same persons who were concerned about the custody hearing that was held on November 21st of this past year. At that time you were very much interested in Mrs. Mary Courtney having the children, is that correct?
A: That is right.
Q: Now, I gather from your testimony at this time that your main concern is that you have not had as free access to the children as you think would be proper. You are not in a sense testifying against the character or the conduct of Mrs. Mary Courtney, except with respect to how it affects your relationship with the children?
A: Yes, I think that is a lot of it, and another thing I think the children should be taught more to respect everybody, and associate with people more. They just don’t act like they * * *
Q: I think the essence of your testimony has been that they associate with people quite freely but that you have noticed a sort of pulling away from you?
A: That’s right, from the whole family.
Q: However, on November 21, and even before that you and Mr. Courtney were greatly interested in seeing that Mrs. Mary Courtney retained the custody of the children, and you felt that was the way your son would have wanted it, is that correct?
A: I did then.
BY THE COURT: Now in view of her statement would you like to question her?”

Immediately thereafter Mr. Ponder on re-direct questioned Mrs. Courtney further as follows:

“MR. PONDER: Yes.
Q: Mrs. Courtney, now why have you reversed your position so to speak with reference to where you think the children should be?
A: Well, I said at the beginning, I thought they should stay at home, down where where they had a home and everything. Bernice was not married then and she did not have a home, and since everything has turned out like this and it has not worked out like we thought it was going to work out' — - not that I want to tell Mary how to raise the children, or anything like that, I don’t, but I did want them to respect their family, you know, and I thought they would, but that has all been cancelled out, they don’t. I think now that since Bernice has got a home and all I think they would be much better off with her.
BY THE COURT: Is it not true Mrs. Courtney that at the time, on the last hearing', that Mr. and Mrs. Lott had been married, that Bernice did have a husband?
A: Well, they were then, but they were not when the children’s father died.
Q: The father died on October 24, 1963, and between that date and November 21, 1963 Mrs. Lott had married ■ Mr. Lott ?
A: They were planning to get married but they had not told me anything about it — I didn’t know.
BY THE COURT: That is all. ■
MR. PONDER: One other question. The Court asked you the question about if you were here to testify to anything that would make you think that Mrs. Mary Courtney was morally unfit to raise the children, now do you have any remarks to make about that? ■
BY THE COURT: Now, you do not mean ‘remarks’ you mean facts.
A. Well, I do not think they should be took out and brought in all times of the night like that. I think that that is not right. I think that there could be a lot of changes made.
BY THE COUNSEL: That is all.”

We find the paternal grandfather of the children testifying in this case on the questioning by the Court as follows: ;

“BY THE COURT:
Q: Mr. Courtney, this of course is with reservation to your objection Mr. Ponder — you as the . paternal -grandfather was very much concerned about the present Mrs. Mary Courtney being awarded the temporary care, custody and control of the three children back on November 21st of this year, were you not?
A: Yes sir.
Q: At that time Mrs. Lott the mother of the children was trying to obtain their custody?
A: Yes sir.
Q: And you were positive in your mind at that time that the interest of the children would be best served as being maintained in. the care, custody and control of Mrs. Mary Courtney?
A: That is right, I came and asked you to do that.
Q: But the circumstances are now such that you feel that you have been deprived of the'- society of the children ?
A: That’s right, I have.”

It would appear to me that the failure to ask these grandparents, who testified in the prior case for the stepmother immediately after their son died, any question touching upon the moral unfitness of the plaintiff-mother in this suit during the trial of this case, or as to their testimony on this issue in the previous trial, is proof that the moral unfitness of the mother was not an issue in the prior suit between these parties for I cannot imagine the attorney for the ' defendant-stepmother failing to bring out such a fact had these grandparents so testified in the prior suit. .Neither did the lower court when questioning the grandparents ask them if they had not testified to the moral unfitness of the mother in the prior suit.

In the present suit the main allegations of defense in the defendant-stepmother’s answer are set forth in Articles 10, 11, and 12, which are as follows:

“10.
“That respondent does have the custody . of the said children, and that said custody was awarded to respondent by judgment of this Honorable Court dated November 22, 1963, in suit number 12,911.
“11.
“That relatrix is not entitled as a matter of right to the custody of said children.
“12.
“That relatrix is not a fit and proper person to care for the children or to have the custody of said children.”

It could be that in the prior suit the same allegation as in 12 was made but possibly handled in the same manner as in the present suit which contains no testimony, not even a line, that the plaintiff-mother was unfit or an improper person to have the custody of her children. No attempt was made to prove this allegation of the petition although it was specifically made an issue by the defendant. The grandparents testified that they were now supporting the custody suit of the plaintiff-mother as they had changed their minds because the defendant-stepmother was estranging the children from the entire Courtney family and this record proves that fact. It is the testimony not only of the grandparents but the brother of the deceased and the aunts and uncles of the children that they have known the plaintiff-mother and her husband all their lives and that she is fit, has a nice home and not one iota of testimony even on cross-examination that the mother is morally unfit or that the husband is not financially able to take these children into the home. Additionally, the husband of the plaintiff-mother wants the - children and testified that he and his wife can never have any children. All of these relatives of the children testified that the defendant-stepmother goes out a good deal at night, the children are not ever placed with any of their blood relatives but with friends of the stepmother. It is shown that she attends night clubs and at times comes in late at night. 'There is-no testimony that the children are left alone at these times, however, and the main complaint which seems to have been proven is-to the effect that this stepmother has and is attempting to estrange these children from their father’s blood relatives and there is no doubt that she is seeking another husband, which, when acomplished, can bring on grave problems for these stepchildren of hers.

Without fear of contradiction, the record in this suit abounds, and preponderatcly so, with complete proof that the plaintiff-mother is absolutely not only morally fit but in every other way and by every test, and that they have a nice suitable home and enjoy the respect of the people in the community. The mother kept these children awhile even after the original divorce and immediately after the death of the father sought to obtain the custody of the children from the stepmother. There is no question from this record of the mother’s love and affection for these children. On the other hand, there is no question in my mind that the children are deliberately being estranged from their mother, from their grandparents and their aunts and uncles, brother and sisters-in-law of the deceased father.

The law of this State regarding custody is not in doubt. In an initial determination of custody the mother has the prime right to the custody of the minor children and cannot be deprived of that right unless proven unfit. Lyckburg v. Lyckburg, La.App., 140 So.2d 487, Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456, Liner v. Liner, 222 La. 789, 64 So.2d 4; in the last cited case, the Supreme Court through Chief Justice Fournet stated the settled law and jurisprudence as follows:

“Under the well settled jurisprudence of this Court the right of the mother to the custody of the minor child is paramount to that of the father, except in those cases where she is found to' be morally unfit or where, in very exceptional instances, she is found to be incapable of taking care of the child. See White v. Broussard, 206 La. 25, 18 So.2d 641, and cases cited therein; Willis v. Willis, 209 La. 205, 24 So.2d 378; State ex rel. Morrison v. Morrison, 212 La. 463, 32 So.2d 847; State ex rel. Diehl v. Ducote, 213 La. 641, 35 So.2d 415; Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456; Meyer v. Hackler, 219 La. 750, 54 So.2d 7; and Ane v. Ane, 220 La. 345, 56 So. 2d 570.
“An examination of the record in this case discloses a complete lack of evidence as to the mother’s unfitness as well as absence of any allegation that the mother is in any manner an unsuitable person. There is clearly no merit in appellant’s claim that the trial judge should have permitted questions by which his counsel sought to cast doubt on the legitimacy of a child born to appellee by a previous marriage, since such evidence could have no bearing on her present fitness. See State ex rel. Henry v. Lyons, 139 La. 273, 71 So. 507; cf. State ex rel. Martin v. Garza, 217 La. 532, 46 So.2d 760. Appellant’s argument that the trial judge erroneously admitted and considered the unsworn report of the Juvenile Probation Officer avails him nothing, since the record, stripped of this report, is barren of any evidence which would render the mother unfit.”

Therefore, if I am correct that no issue was made of the mother’s moral unfitness in the prior suit for custody immediately after the father’s death between the present plaintiff-mother and present defendant-stepmother, under the law, the mother should have been awarded these children in the prior suit rather than the stepmother. She would have been entitled even as against the father to the custody of her children unless proven morally unfit at the time of the trial.

It is argued, however, that as there was no appeal from the prior judgment it has become final and is presumed to be correct. There is no evidence as to why an appeal was not taken in the prior case but I think it is immaterial as it is the settled jurisprudence that in a case involving the custody of children the primary concern of the court is the best interest of the children. Failure to take an appeal in a prior case in no way deprives the court in another suit of considering the welfare and best interest of the children and awarding custody accordingly.

The majority contends that there is an exception to the general rule that in a custody matter the mother is preferred above all others, unless she is shown to be morally unfit, but in those cases wherein a change is sought in an order of custody previously granted, the party seeking modification of such custody award must show a material change in the facts which would entitle such party to the custody. This is correct and has been fully satisfied by the facts proven on the trial of the present suit.

As I view this case, there was no issue of the moral unfitness of the mother at issue or proven in the first case and upon the death of the father there was a definite change, and that suit was a contest between a mother who was morally fit and a stepmother and the former should have been awarded the custody of the children at that time. However, for the sake of argument, if the case must rest upon proof of a change and there were grounds (moral unfitness) in the first suit between these parties, immediately after the father’s death to grant the custody of these children to the stepmother, not one exists or has been proven in the present suit and it fully satisfies the law as stated in the case relied upon by the majority, Gentry v. Gentry, La.App., 136 So.2d 418 and cases therein cited, to the effect that a party seeking modification of a previous custody decree bears the burden of proving any material change in conditions, also proving that present conditions and circumstances are detrimental and inimicable to the child’s welfare. If, as contended by the majority, the moral unfitness of the mother was an issue in the first suit and sustained, which the writer believes in error, the present suit fully and completely shows the absolute moral fitness by positive testimony and the total absence of any testimony to the contrary, of the mother of these children, the suitability of the home, the love and affection of the mother, the desire of the stepfather that the mother have the custody of these children, his financial stability, although the children receive $190.00 a month Social Security from their deceased father, and the excellent reputation in the community of the mother and her husband, Earl Lott. Secondly, this record proves that the present conditions and circumstances are detrimental to these children’s welfare. They are being deliberately estranged from the blood relatives of their father and from their own mother by a stepmother who is seeking another husband who would be stepfather to these children. Under these proven facts, these children should be placed now with their mother. In my opinion, the plaintiff-mother has borne the burden of proving both conditions.

By way of answer to the statement of the majority that “Considering the present matter in the light of the rules hereinabove found applicable, we note that relatrix herein neither alleged nor attempted to show any change in the conditions which led to granting of custody of the children to respondent. Relatrix showed she is remarried and financially able to care for the children but these same conditions existed at the time custody was awarded respondent”, I do not agree that relatrix has only Shown that she is remarried and financially able to care for the children although I am sure these two conditions existed at the time custody was awarded respondent. If there was no change in conditions proven on the trial herein and the former contest for custody, the former judgment was erroneous, for plaintiff-mother has proven beyond any question by the overwhelming preponderance of the testimony in this record which satisfies every legal requirement that she is entitled to the legal custody of her children and judgment should be rendered accordingly.

I am firmly of the opinion that the judgment below, as well as the majority opinion herein affirming that judgment, is erroneous under the law and the facts. I respectfully dissent.

BAILES, J., concurs in dissent. 
      
      . The stepmother has no other means whatsoever hy which she could support these children. She has approximately $60.00 per month additional social security income. She does not have enough to support herself, and unless she succeeds in marrying an industrious stepfather for these children all may be living upon the children’s social security payments.
     