
    Mrs. Lildred Ruth BRUNT, Plaintiff and Appellant, v. Dr. Charles Druey BRUNT, Defendant and Appellee.
    No. 1166.
    Court of Appeal of Louisiana. Third Circuit.
    June 24, 1964.
    Rehearing Denied July 15, 1964.
    J. Bryan Miller, Lake Charles, for plaintiff-appellant.
    Edwards & Edwards, by William C. Broadhurst and Edwin W. Edwards, Crowley, Adams & Peters, by Walter C. Peters, Jennings, for defendant-appellee.
    Before TATE, FRUGÉ and CULPEP-PER, JJ.
   CULPEPPER, Judge.

This is a dispute between the father and the mother for custody of a child. The trial judge awarded custody to the father. The mother appeals.

The facts show that plaintiff and defendant were married in 1949 and established their matrimonial domicile in Jennings, Louisiana, where defendant is a prominent physician. By September of 1962 there were eight surviving children of this marriage, ranging in age from about one year to about thirteen years. However, over the years plaintiff and defendant apparently had experienced increasing marital difficulties. Mrs. Brunt contends they became incompatible and that the doctor had fits of temper and beat her physically. The doctor contends that his wife started running around with other men, staying out late at night without any explanation as to her whereabouts and over indulging in intoxicating liquors. These events climaxed in 1962 when Mrs. Brunt was admittedly “seeing” a younger man named Robert Reynolds. The doctor learned of this affair and demanded that she choose between him and Reynolds. Mrs. Brunt chose Reynolds, and actually left home with Reynolds on September 22, 1962 for the avowed purpose of divorcing Dr. Brunt and marrying Reynolds. She left all eight of her children, two or three of whom were still infants, with Dr. Brunt.

On September 28, 1962 Dr. Brunt filed suit against his wife for divorce on the grounds of adultery. His petition alleged “ * * * that said defendant and Reynolds are living together as husband and wife in or near the city of Lake Charles, Louisiana.” and further that “ * * * since defendant has been unfaithful to her marriage vows and has committed acts of adultery with the said Robert Reynolds, * * * ” he was entitled to an absolute divorce. Dr. Brunt also alleged that his wife was unfit for the custody of the children and asked that he be awarded their permanent care.

On October 10, 1962 Mrs. Brunt, through her own counsel, filed an answer to the divorce petition, in which she admits the allegations that she had lived together with Reynolds as man and wife and had committed acts of adultery with him. However, Mrs. Brunt denied that she was unfit for the custody of her children but stated that since she did not have a place nor the means to care for them she agreed it was for their best interest to stay with Dr. Brunt.

The divorce case was heard on December 18, 1962 at which time there was filed in evidence a letter from Mrs. Brunt’s attorney agreeing that the matter could be taken up without the presence of either Mrs. Brunt or her attorney. The transcript of testimony taken at the trial of the divorce shows without question that before she left home on September 22, 1962, Mrs. Brunt had been seeing Reynolds and staying out with him late at night, but there is no proof of any specific acts of adultery before she left home. On said date of September 22, 1962 at about 8:00 p. m., at a time when Dr. Brunt and the three older children were absent, Mrs. Brunt packed all of her personal belongings and left in an automobile with Mr. Reynolds. They admittedly went to Beaumont, Texas, where they lived together as man and wife in an apartment. After hearing this evidence the trial judge granted a divorce to Dr. Brunt on the grounds of adultery and awarded him custody of the children.

Soon after the divorce Mrs. Brunt moved to an apartment in Lake Charles. On May 16, 1963, in a hospital in Lake Charles, she gave birth to the child whose custody is sought in these proceedings. On June 7, 1963 Mrs. Brunt filed the present suit against Dr. Brunt for expenses of the birth and $500 per month alimony for support of the child, as well as permanent custody. Dr. Brunt answered, admitting paternity of the child, but filed a reconventional demand for custody on the grounds that Mrs. Brunt is an unfit mother. At the trial of these issues on June 19, 1963, the entire previous divorce proceedings were filed in evidence. Further evidence introduced, with reference to the issue of the moral fitness of Mrs. Brunt, showed: Since the date of the divorce in December of 1962, she had continued to see a great deal of Robert Reynolds. She testified she still “loves” Reynolds and intends to continue seeing him, but she is uncertain whether she is going to marry him. She denied any acts of adultery with Reynolds since the date of the divorce and there is no proof of any specific such acts since that time. A police officer testified as to an incident which occurred during the summer of 1962 when he was requested one night by Dr. Brunt to try to find Mrs. Brunt to go home and take care of the children. The officer said he found Mrs. Brunt in a bar with Reynolds in an intoxicated condition and, when advised that the doctor wanted her to go home and see about the children, she stated “I had them. Hell, let him take care of them.” The officer also testified he had seen Mrs.1 Brunt and Reynolds together late at night several times.

Mrs. Sarah Kelly, Dr. Brunt’s housekeeper, who helps care for the children, testified that since Mrs. Brunt had left home in September of 1962 she had talked to Mrs. Brunt on the telephone from both Beaumont and Lake Charles, and from these conversations she understood that Mrs. Brunt and Reynolds were living together and were going to be married.

At the conclusion of the hearing the trial judge rendered written reasons, reading in part as follows:

“It is this Court’s opinion that the effect of the December 1962 judgment of divorce whereby the eight living children were placed in the custody of their father Dr. Charles D. Brunt, was to declare that Mrs. Lildred Ruth Brunt was an unfit parent and to declare that Dr. Brunt was a proper parent. Melvin Gary v. Louella Gary, [La.App.], 143 So.2d 411.
“There having been no evidence submitted at the trial of this rule to show that Dr. Brunt is not a proper parent, it is this Court’s opinion that Dr. Brunt is entitled to have custody of the infant child conceived during his marriage but born 145 days subsequent to the dissolution of the marriage.
“Furthermore, the evidence is conclusive to the effect that Dr. Brunt, a physician and surgeon, is imminently qualified to care for his infant child; that the infant is not breast-fed; that his sister is presently living in his home and properly rearing all of the children; and that Mrs. Brunt is satisfied that Dr. Brunt’s sister is as well qualified to care for the children as anyone excepting the'children’s mother. In addition Dr. Brunt has a maid to assist his sister in the care of the children, and household work.”

The first argument made by counsel for Mrs. Brunt in this court is that the trial judge placed undue reliance on the the case of Gary v. Gary, La.App., 143 So.2d 411 (3rd Cir.App.1962, writ of certiorari denied). In that case we held a party seeking a change in a previous custody order has the burden of showing that because of material changes, which have occurred since the initial decree, the best interest and welfare of the child require a revision of the previous custody order. See also Gentry v. Gentry, La.App., 136 So.2d 418 (1st Cir.App.1962); Hanks v. Hanks, La.App., 138 So.2d 19 (1st Cir.App.1962, writ of certiorari denied); Decker v. Landry, 227 La. 603, 80 So.2d 91.

Counsel for Mrs. Brunt contends that Gary v. Gary, supra, has no application here, because the child whose custody is at issue in these proceedings had not even been born at the time of the previous decree granting custody of the eight children to Dr. Brunt. We agree that as to this child, born after the previous custody decree, this is an initial custody dispute between the mother and the father and not an attempt to modify or change a previous custody ruling. However, we think it was proper for the trial judge to consider the entire divorce proceedings, which had occurred only six months before, along with the other evidence introduced at the present custody hearing, in determining what is for the best interest and welfare of this child. After all, the welfare of the child is the overriding concern in all of these cases. Certainly the district court was not restricted to evidence of events which occurred after the divorce as counsel contends. We think it is actually immaterial in the present case whether this be considered an initial custody hearing, or a suit to change custody because, in view of all of the facts disclosed in the divorce proceedings, together with the evidence introduced at the hearing of this custody rule, the trial judge was fully justified in concluding that the mother is unfit-and that the best interest of the child will be served by awarding its custody to Dr. Brunt.

We recognize the well established rule that the mother has the primary right to the custody of her child and will not be deprived thereof unless proven unfit or unable to care for them. Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456. We also recognize the jurisprudence which has held that a few secretive acts of adultery by a mother who is otherwise well suited to care for her children, may not be sufficient to show that she is morally unfit for custody. McCaa v. McCaa, 163 So.2d 434 (2nd Cir.App.1962); Estopinal v. Estopinal, 223 La. 485, 66 So.2d 311; Messner v. Messner, 240 La. 252, 122 So.2d 90; Bush v. Bush, 144 So.2d 119 (4th Cir.App.1962).

However, there is a great deal more evidence in this case of Mrs. Brunt’s unfitness than simply a few secretive acts of adultery. Mrs. Brunt lived in open adultery. She freely admitted this. It is public knowledge that she ran off with Robert Reynolds and lived with him. It is true there is no proof of any specific acts of adultery between the time of the divorce in December of 1962 and the time of the custody hearing in June of 1963, but the evidence that during this six months period Mrs. Brunt continued to see a great deal of Reynolds, that she still “loves” him and intends to continue to see him, but does not know whether she is going to marry him, could have certainly caused the trial judge grave concern that this relationship might adversely affect the welfare of the child.

Furthermore, we think very strong evidence of her unfitness is the admitted fact that she ran off with her paramour and left her eight children, the youngest two or three of whom were still infants. This showed a serious lack of concern for her children in addition to being a highly immoral act. The trial judge was not impressed, and we likewise are not impressed, with her lame excuse that she couldn’t take the children because she didn’t have a place to keep them. These are simply not the actions of a suitable mother. As the doctor said on the witness stand, “Actions speak louder than words.” It is important to remember that all of this occurred within about eight months previous to the custody hearing. Certainly it was reasonable for the trial judge to conclude that Mrs. Brunt had not changed her ways in so short a time.

A final strong factor in our decision is the great discretion which must be allowed the trial judge in cases of this type. He is undoubtedly in a better position than we, who see nothing but the cold record, to give proper weight to all of the circumstances and determine what is for the best interest and welfare of this child. Mouton v. St. Romain, 245 La. 839, 161 So.2d 737; State ex rel. Hampton v. McElroy, La.App., 141 So.2d 666, State ex rel. Hebert v. Knight, La.App., 135 So.2d 126; State ex rel. Guinn v. Watson, 210 La. 265, 26 So.2d 740.

For the reasons assigned the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiff appellant.

Affirmed.

TATE, Judge

(dissenting).

By the trial court decree, a iom-week old baby girl was taken from its mother. There is absolutely no evidence that the wife had misbehaved since she left her husband nine months before, with the intention of marrying another man. Her husband himself frankly admitted that he knew of no misconduct on his wife’s part since she left home some nine months before. Tr. 109.

The trial court did not find that the mother was an unfit parent at the time of the hearing below. On the contrary, the trial court, according to its specific reasons for judgment, felt obliged to take away the child from its mother by the decision in Gary v. Gary, La.App. 3 Cir., 143 So.2d 411, because the divorce judgment some six months earlier had awarded the father custody of the eight older children, and because there was no showing that the father was no longer a fit parent.

As the majority notes, however, Gary v. Gary applies only when a change is requested in a previous custody order. Then, the party seeking the change has the burden of showing that, because of material changes since the earlier decree, the child’s best interest is no longer served by its remaining in the custody of the parent to whom originally awarded.

Such a rule, of course, has no application to the present situation, where the custody of this just-born baby was not determined by the earlier divorce decree. The present is an original custody hearing, since the custody of this newly-born baby had never been at issue before in any court proceedings.

Under these circumstances, the well recognized rule is that the best interests of small children, and particularly of infants, are regarded as best served by awarding their custody to their mother, unless she is morally unfit. In this regard, the issue is the mother’s present moral fitness; it is an error of law to deprive the mother of custody because in the past she has committed adultery or been guilty of other indiscretions, although at the present time she is morally fit and is able to afford the child a good home. See McCaa v. McCaa, La.App. 2 Cir., 163 So.2d 434, citing several Supreme Court and other decisions to this effect.

In the present case, the evidence shows that the plaintiff wife had been a good mother and a good wife for over ten years of marriage. Immediately before she left her husband in September of 1962, after twelve years of marriage, she fell in love with another man, which led to her leaving her husband and to her divorce from him.

I certainly do not think that she is a fit candidate for the Congressional Medal of Honor because she fell in love with another man and left her husband, nor do I think her conduct in this regard should be condoned. However, I think it is also fair to add that her husband, who was a prominent doctor some thirty years older than she when he married her as a teenager, and to whom she bore ten children, is not shown by the record to have been a kind and considerate husband, but instead a man who demanded submissiveness and attempted to enforce it by physical beating and whipping with a belt. The record also shows that it was only in the unhappy later stages of this marriage, and particularly within a very few months prior to the time the plaintiff wife left her husband, that she stayed out at night and was a non-exemplary wife.

After she left her husband, the record shows without contradiction that she lived in Lake Charles and Jennings, while the man she intended to marry lived in Port Arthur. There is absolutely no evidence of any misconduct by the wife with this other man after she left her husband. I think it extremely unlikely that, if she had misbehaved, proof of same would not have been produced, what with the bitterness between the spouses and the husband’s financial means to secure investigative aid to discover same, such as private detectives.

Unless the law of Louisiana is that a mother, once an adulteress, may never, never thereafter obtain custody of her children, no matter how blameless thereafter her life may be, the action of the majority herein in taking the custody of this four-week old child from its mother is plainly erroneous as a matter of law. Under the jurisprudence of this state, the plaintiff mother is entitled to the custody of her just-born infant, since the record does not show she is now morally unfit to have its custody.

In passing, I should mention that the record shows that the divorce on the ground of adultery was not in truth a contested matter. The answer was prepared by the husband’s counsel and. was signed by the wife in propria persona. The evidence of the so-called “adultery” was arranged between the parties to facilitate a prompt divorce. The plaintiff wife had intended to go to another state and secure a divorce in three months in order to marry the younger man with whom she was in love; but, without contradiction in the record, the evidence shows that she was instead persuaded by the husband and his attorney, and against the advice of a lawyer whom she had consulted but not hired, to agree to the divorce on the grounds of adultery as being much quicker and less expensive than an out-of-state divorce, and to the best interests of all, since the wife could not afford to keep the eight older children after the separation, and since supposedly she would have the right to see them and be with them as often as she wished after the divorce.

Before concluding, I think I should also refer to the attitude of the defendant father. The father frankly admitted that he had not sought custody of the newly-born baby, had refused to support it, and that he had told or sent word to his wife both before and after the present custody proceedings, that he would not pay for support of the child, but that he would not disturb her custody providing she did not try to make him support it. By his own admission, the husband offered to drop his reconventional demand herein for custody of the child if she would drop these proceedings seeking his support of the child. Tr. 188-192.

The father had evidenced no interest whatsoever in the infant’s welfare and had contributed nothing to pay for its birth (the wife had had to pawn her jewelry to pay for this) or other needs. He had not even tried to see the baby until it was ten days old, when he happened to make a house call on the infant’s grandmother (the plaintiff wife’s mother) and was brought in to see the baby at that time. By his own admission, the father had not contributed a •dime to the support of the baby and did not intend to do so unless forced by the court. The action of the father in seeking custody of the child, according to the record, seems to be motivated not from love of the child, but simply from a desire to spite his wife or to avoid paying her alimony for its support.

Under these circumstances, is not the custody of a loving mother, who can afford the child a good home and who, although penniless, has fought to be afforded that right, to be regarded as more advantageous and more to the child’s welfare, than to award the child’s custody to an unloving father, who, although wealthy, has refused to pay for the child’s food and medicines and who has only begrudgingly sought to obtain the child’s custody, simply for the purpose of avoiding having to make alimony payments to support this baby?

The effect of the majority opinion is to rubber-stamp the trial court’s award of custody, even though, according to the reasons for it actually given by the trial court, the award of custody to the father was erroneous as a matter of law. We do not know if, applying the proper legal principles, the trial court would have torn this infant from its mother’s arms: We only know from the written reasons that the trial court felt obliged to do so by the decision in Gary v. Gary, which the majority of this court finds inapplicable as a matter of law. We also know that the trial court did not in fact find that the mother was not presently fit to have the custody of her baby.

I can find no legal authority to indicate that under these circumstances an appellate court must not disturb the trial court’s custody disposition based upon reasons admittedly erroneous as a matter of law.

I think the majority is in error in depriving this presently fit mother of the custody of her newly-born baby. I therefore respectfully dissent from the opinion of my conscientious brethren of the majority.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, J., dissents.  