
    (71 South. 507)
    No. 20497.
    STATE ex rel. HENRY v. LYONS et al.
    (March 20, 1916.
    Rehearing Denied April 24, 1916.)
    
      (Syllabus by the Court.,
    
    Divorce <&wkey;298(3) — Custody of Children— Evidence.
    Several years after having obtained a divorce on the ground of adultery, in a suit by the husband for possession of the child, the evidence taken in the divorce suit is not enough to prove that the mother is yet unworthy of or unfit for the companionship and care of her minor child.
    [Ed. Note. — For other cases, see Divorce, Cent. Dig. § 783; Dec. Dig. &wkey;298(3).]
    Appeal from Civil District Court, Parish of Orleans; E. IC Skipner, Judge.
    Suit by the State, on the relation of Charles L. Henry, against Mrs. Chattie Lyons and another. From a judgment for defendants, relator appeals.
    Affirmed.
    Ker & Feliu, of New Orleans, for appellant. Paul L. Fourchy, of New Orleans, for appellees.
   O’NXELL, J.

The relator obtained a divorce from the defendant, Chattie Lyons, on statutory grounds, in May, 1911. In his petition for divorce he demanded also the custody of their boy, then less than four years of age. The judgment of divorce, rendered by default, did not mention the custody or care of the child, who was left with the defendant.

In January, 1914, the relator instituted this suit to recover possession of his child from the mother and maternal grandmother. The case was submitted on the record in the divorce suit, and the testimony of the relator’s mother, who testified that she was able and willing to take care of the child, and on the testimony of a neighbor who said that, as far as he knew, the relator’s habits were good. Without hearing any evidence on behalf of the defendants, the district court rendered a judgment of nonsuit, from which the relator has appealed.

The child was between seven and eight years of age when this suit was tried. There is no proof that the mother is not deserving of the custody of her child, except the evidence taken on confirmation of the judgment of divorce, nearly three years before the trial of the present suit. From the fact that no evidence was offered on the trial of this case to prove that the conduct of the child’s mother is not good, we assume that she has reformed since she was sued for a divorce, and that she is now as worthy of the custody and companionship of her child as is the relator. The child is yet at an age when he needs the care of a good mother. The evidence shows that the relator was prosecuted in the criminal court for nonsupport of the child, pleaded guilty and was condemned to pay alimony. We find no error in the judgment appealed from. It is therefore affirmed.  