
    Succession of Douglas E. QUAVE.
    No. 3084.
    Court of Appeal of Louisiana. Fourth Circuit.
    July 1, 1968.
    Rehearing Denied Oct. 7, 1968.
    Guste, Barnett & Little, New Orleans, Fannie E. Burch, Amite, William M. Barnett and Sidney L. Shushan, New Orleans, for Mrs. Emma Hill Mounce, appellant.
    Hobart O. Pardue, Jr., Baton Rouge, for Mrs. Elsie Quave Willie, appellee.
    Duncan S. Kemp, III, Hammond, for Mrs. Edna Quave.
    Before YARRUT, SAMUEL and BAR-NETTE, JJ.
   SAMUEL, Judge.

This is a contest, for the tutorship of three minor children, Kent, Robert and Michael Quave, respectively 9, 6 and 3 years of age. The applicants are Mrs. Emma. Hill Mounce, the maternal grandmother; Mrs. Edna Quave, the paternal grandmother; and Mrs. Elsie Quave Willie, a paternal aunt.

The parents of the children.died in separate automobile accidents, the father in 1966, one year after the death of the mother. The father was qualified as tutor with Mrs. Edna Quave as under-tutrix after the death of the mother. Following the death of the father Mrs. Emma Hill Mounce was appointed provisional tutrix by order of the Twenty-First Judicial District Court for the Parish of Tangipohoa. However, based on a finding that the father had been domiciled in the Parish of Jefferson at the time of his death, the Twenty-First Judicial District Court held that appointment invalid because the proceedings had been initiated in a parish of improper venue. Shortly thereafter, the Twenty-Fourth Judicial District Court for the Parish of Jefferson appointed Charles Willie, husband of Mrs. Elsie Quave Willie, provisional tutor and placed the children in the Willie home.

The three parties to this litigation then filed their applications for tutorship. After trial thereof there was judgment in favor of Mrs. Willie awarding her the tutorship of the three children and appointing her husband, Charles Willie, under-tutor. Mrs. Mounce has appealed. Mrs. Quave has not appealed; but, referring to herself as an appellee, she has filed a brief with this court in which she acquiesces in the trial court judgment.

In his reasons for judgment the trial judge stated that the grandmothers, Mrs. Quave and Mrs. Mounce, apparently had priority to the appointment as tutrix over the aunt, Mrs. Willie, under the Civil Code articles relative to legal tutorship. However, he found both grandmothers disqualified under LSA-C.C.P. Art. 4231(6). He concluded that under the authority of LSA-C.C.P. Art. 4067 Mrs. Willie, the only qualified applicant for the position, should be appointed tutrix.

Mrs. Mounce contends the trial judge had no basis for disqualifying her under Art. 4231(6) and as she is thus the qualified applicant having the highest priority right, the court must appoint her rather than the collateral, Mrs. Willie. She also objects to the appointment of Mr. Willie as under-tutor.

Relying on Succession of Haley, 49 La. Ann. 709, 22 So. 251, and the use of the word “ought” in Civil Code Art. 263 (“ * * * then the judge ought to appoint to the tutorship the nearest ascendant in the direct line * * * ”), Mrs. Willie contends the priority of appointment given to ascendants over collaterals is not mandatory and must yield to whatever may be in the best interest of the children involved.

In addition to acquiescing in the trial court judgment, Mrs. Quave argues that in the event that judgment is annulled the matter should be remanded for the purpose of having the trial court determine which of the two grandmothers is better qualified to serve as tutrix.

Pertinent to a determination of which applying relative is to be appointed legal tutrix are Civil Code Articles 263 and 267, which read:

“When a tutor has not been appointed to the minor by father or mother dying last, or if the tutor thus appointed has not been confirmed or has been excused, then the judge ought to appoint to the tutorship the nearest ascendant in the direct line of the minor.” LSA-C.C. Art. 263.
“If the minor has no ascendant in the direct line, the tutorship shall be given to the nearest of kin in the collateral line.
If there are two or more relations in the collateral line, the judge shall appoint one of them as tutor.” LSA-C.C. Art. 267.

These two articles must be considered in connection with Code of Civil Procedure Art. 4067, which reads:

“At any time after the expiration of ten days from service or publication as provided in Article 4065, whichever period is longer, if no opposition has been filed, the court shall appoint the applicant, unless he is disqualified under Article 4231.
If an opposition has been ' filed, it shall be tried in a summary manner. After the trial, the court shall appoint as tutor the qualified applicant having the highest priority of appointment. If two or more applicants have the same priority, the court shall appoint the one best qualified, personally, and by training and experiénce, to serve as tutor.” LSA-C. C.P. Art. 4067 (Emphasis ours).

Also applicable is Code of Civil Procedure Article 4231, which states the circumstances under which a person is disqualified from being appointed tutor. Only Section (6) of the article can be pertinent here. That section reads:

“A person who, on contradictory hearing, is proved to be incapable of performing the duties of the office, or to be otherwise unfit for appointment because of his physical or mental condition or bad moral character.” LSA-C.C.P. Art. 4231(6).

We cannot agree with Mrs. Willie’s contention that, in any event, the priority of appointment to the tutorship given to ascendants over collaterals must yield to whatever may be in the best interest of the children involved. In view of Civil Code Article 267, which provides that the tutorship shall be given to the nearest collateral if the minor has no ascendant in the direct line, and LSA-C.C.P. Art. 4067, which provides that the court shall appoint as tutor the qualified applicant having the highest priority of appointment, the court is not free to disregard the codal priorities and make an appointment based solely on what it considers the best interest of the children. Before the relative having the highest priority can be deprived of the tutorship that relative must be found disqualified for some valid reason. We do not decide or suggest the reasons for disqualification contained in LSA-C.C.P. Art. 4231 are exclusive. That question is not presented in this case. For here there is no contention, nor does the record contain any suggestion, that Mrs. Mounce is disqualified for any reason other than that, as provided by LSA-C.C.P. Art. 4231(6), she is incapable of performing the duties of the office or is otherwise unfit for appointment because of her physical or mental condition.

Succession of Haley, supra, relied on by Mrs. Willie, does not hold to the contrary. In that case the natural mother, who resided in New York, sought to be appointed tutrix of her minor child living in New Orleans in the care of a religious order. The court found the applicant had been a prostitute; she had given birth to the child while an occupant of a hohse of prostitution in New Orleans; she had left the child with the decedent, the keeper of that house of prostitution; and thereafter, during the long interval following her departure from New Orleans, she had shown no interest in the child until the decedent died leaving a considerable estate and a will making the child her universal legatee. The court was of the opinion that the natural mother either continued to be a prostitute or would return to that way of life and therefore could not be entrusted with the child’s care. In other words, although the opinion does refer to the “good of the child”, it is clear the court found the natural mother was unfit for appointment because of bad moral character, a disqualification under the present LSA-C.C.P. Art. 4231(6) as well as its predecessor, Civil Code Art. 303(1).

At the time of trial Mrs. Quave was a 55 year old divorcee living in a small home in a rather poor and dilapidated neighborhood. Her two married daughters shared the home with her. By her own admission she did not want to rear the children in this home and indicated an intention to move elsewhere if she obtained the tutorship. She has a nervous condition which the trial judge felt disqualified her from appointment as tutrix under LSA-C. C.P. Art. 4231(6). We agree with that conclusion. Without further detailed discussion, in our opinion the trial judge correctly held that Mrs. Quave is incapable of coping with small active children and thus of performing the duties of tutrix.

We also agree with the following finding of the trial judge relative to the appellant, Mrs. Mounce, as expressed in his reasons for judgment:

“Mrs. Mounce is 52 years old and lives in a semi-rural area, six miles from Hammond. She is also divorced and lives in her three bedroom home, shared by her daughter, who plans to marry in the near future. Mrs. Mounce supplements the small alimony received from her divorced husband by baby-sitting for her daughter who has four children including a five month old baby. She also washes clothes for neighbors. Her life is simple and conducted according to the rigid religious beliefs of a non-denominational order or group to which she belongs.”

While we further agree, as found by the trial judge, that the children will have some advantages in the Willie home which they will not enjoy in the home of Mrs. Mounce, we must disagree with the decision disqualifying the appellant as being incapable of performing the duties of the office of tutrix. That decision was based on a combination of factors, the opposite of which apparently are enjoyed by Mrs. Willie, including poverty, strict religion, age, a lack of recreational facilities for the children and the lack of a man in the household.

The record shows that Mrs. Mounce has an income from alimony of $75 a month which she supplements by keeping the four children of one of her daughters for eight hours a day, four days a week, and by washing a neighbor’s clothes in her own automatic washing machine. She has reared eight of her own children to be productive, well adjusted individuals. There is no contradiction of the fact, as testified to by several witnesses, that she is exemplary in her own personal behavior and has instilled the finer virtues in her own children. She owns a comfortable home in a rural area with ample facilities, including obvious country recreational facilities, for housing and caring for the Quave children. Despite her present activities she will have ample time to take proper care of the children. We cannot say that the strong religious beliefs to which she adheres, which might be considered by some members of our society as too rigid (for example, the children would not be allowed to view television or movies), would limit or impair the physical, emotional or mental well being of the children; the contrary may be true. Far from being incapable of performing the duties of the office, at the age of 52 (a comparatively young age for a grandmother) and in good health she is physically and mentally able to master the responsibilities of a tutrix. And the lack of a man in her household is not a material factor. The Civil Code articles on legal tutorship contemplate the absence of a male in some instances. LSA-C.C. Arts. 264 and 266, for example, give the grandmother the right to claim the tutorship in the absence of a grandfather.

We can find no basis whatever for disqualifying Mrs. Mounce. Accordingly, we must reverse the trial court judgment and appoint her tutrix.

Appellant's contention that the under-tutor should be someone other than Mr. Willie is based on the argument that a wife and her husband should not be appointed tutrix and under-tutor, respectively. As our decision to appoint Mrs. Mounce removes the basis for her objection to Mr. Willie’s appointment, we find it unnecessary to discuss the matter further. We will affirm that part of the judgment which appoints Charles Willie under-tutor.

Mrs. Quave’s argument, that in the event the judgment appointing Mrs. Willie is annulled the matter should be remanded for the purpose of having the trial court determine which of the two grandmothers is better qualified to serve as tutrix, is without merit. Regardless of whether this question properly is before its in the absence of an appeal by Mrs. Quave, it suffices to say both the trial court and this court have concluded Mrs. Mounce is qualified to serve as tutrix and Mrs. Quave is disqualified to serve as such under LSA-C.C.P. Art. 4231(6).

For the reasons assigned, the judgment appealed from is affirmed in part, reversed in part and recast so as to read as follows:

It is ordered, adjudged and decreed that the applications for tutorship of the minors Kent, Robert and Michael Quave, made in this proceeding by Mrs. Edna Quave and Mrs. Elsie Quave Willie be dismissed. It is further ordered, adjudged and decreed that Mrs. Emma H. Mounce be named and appointed legal tutrix of said minor children and that letters as such issue to her upon her complying with all the requisites of law. It is further ordered, adjudged and decreed that Charles Willie be named and appointed under-tutor of the said minors and that letters as such issue to him upon his complying with all the requisites of law.

Affirmed in part; reversed in part.

YARRUT, Judge

(dissenting).

As stated in the majority opinion, this is a contest for the tutorship of three minor children, ages 9, 6 and 3 years, respectively, between Mrs. Emma Hill Mounce, maternal grandmother, Mrs. Edna Quave, paternal grandmother, and Mrs. Elsie Quave Willie, paternal aunt. Both parents, Mrs. Dolores Mounce Quave and Douglas Quave, died in separate automobile accidents; the father in 1966, one year after the death of his wife. After the death of their mother, their father was qualified as tutor, and their paternal grandmother as under-tutrix.

After the death of the father, the children’s maternal grandmother, Mrs. Emma Hill Mounce, was appointed provisional tu-trix by order of the Twenty-First Judicial District Court, Tangipahoa Parish. On April 21, 1967, the Twenty-First Judicial District Court held the appointment of Mrs. Mounce was invalid.

On April 24, 1967, the Twenty-Fourth Judicial District Court, Parish of Jefferson, appointed Charles Willie, paternal uncle, as provisional tutor, and placed the children in his home. Mrs. Edna Quave, paternal grandmother, then filed an application to be appointed tutrix. Oppositions were filed by Mrs. Emma Hill Mounce, maternal grandmother, and Mrs. Elsie Quave Willie, paternal aunt.

The Court found that Mrs. Quave, age 55 and divorced, lived in a small home in a poor neighborhood in Hammond, Louisiana, which home she shared with two married daughters; and, because of her nervous condition, was somewhat hampered in caring for the children.

Regarding Mrs. Mounce, the Court found her age to be 52, a divorcee, and living in a rural area six miles from Hammond, Louisiana, which home she shared with a 14-year-old daughter, attending school, and a daughter who was employed. Her income consisted of alimony of $75.00 per month, plus help from her employed daughter, with an added income from baby-sitting and $3.00 a week doing laundry for a neighbor. Her religious beliefs restricted the recreational activities of the children.

The Court further found the children would get better care with the Willies, as tutrix and under-tutor; Mrs. Willie being 34 years of age and Mr. Willie 40 years of age. The children would then have a foster mother and father. The Willies live in a rural neighborhood, in a nice comfortable home, with two children of their own, ages 6 and 12, and an adequate income.

From the District Judge’s award of the tutorship to the paternal aunt and uncle, Mrs. Mounce has taken this appeal.

Counsel for Mrs. Mounce contends that the Court disregarded Arts. 263, 266 and 267 of the Louisiana Civil Code, which grants to a grandmother a preference over an aunt in a contest for the tutorship.

LSA-C.C. Art. 263 reads:

“When a tutor has not been appointed to the minor by father or mother dying last, or if the tutor thus appointed has not been confirmed or has been excused, then the judge ought to appoint to the tutorship the nearest ascendant in the direct line of the minor.”

LSA-C.C. Art. 266 reads:

“The grandmother of the minor is the only woman who has a right to claim the tutorship by the effect of the law, but she is not compelled to accept it.”

LSA-C.C. Art. 267 reads:

“If the minor has no ascendant in the direct line, the tutorship shall be given to the nearest of kin in the collateral line.
“If there are two or more relations in the collateral line, the judge shall appoint one of them as tutor.”

LSA-C.C. Art. 263 gives the Judge latitude in designating who should be appointed tutor, being directory rather than mandatory. Counsel for Mrs. Mounce contends an ascendant has a right to claim a tutorship over any collateral, citing LSA-C.C. Art. 266.

Counsel for Mrs. Mounce also contends the judgment deprived the grandmother of this right. There is only one case in our jurisprudence which discusses the right of a party to the tutorship. In Succession of Haley, 49 La.Ann. 709, 22 So. 251, the Supreme Court held, in a contest between a natural mother and a testamentary tutor, viz:

“ * * * It is true that the natural mother, as a general rule, is declared in Article 256 of the Revised Civil Code to he entitled, under the circumstances therein stated, to be ‘of right’ the tutrix of her child; but, though she be entitled to that ‘of right,’ she is not necessarily to be appointed as ‘of course.’ Even the legitimate child is not necessarily to be placed under the tutorship of its father or its mother. The facts of a special case would make it sometimes improper that it should be so placed * * *

We think it is clear the Court inferred that the best interests or welfare of the minors should be the primary concern of the Court. Counsel for Mrs. Mounce also contends the statute should be strictly construed in order to limit family quarrels, and that the children are harmed by litigation over their tutorship. The Supreme Court in Succession of Haley, 50 La.Ann. 840,24 So. 285, stated:

“ * * * It is our duty to look after the good of the child, rather than the wishes or feelings of the mother * * * ”

Further, the Trial Judge was present to observe the physical and mental condition of both grandmothers. The Court evidently was doubtful of their ability to cope with the duties of properly raising three active youngsters. LSA-C.C.P. Art. 4231, par. (6), inter alia, reads:

“No person may be appointed tutor who is:
******
(6) A person who, on contradictory hearing, is proved to be incapable of performing the duties of the office, or to be otherwise unfit for appointment because of his physical or mental condition or bad moral character.”

Counsel for Mrs. Mounce contends the evidence preponderates in favor of Mrs. Mounce. However, the testimony of witnesses in her behalf will show that each belong to the same Church, or related in some manner to each other. It is also contended that the appointment of Mrs. Willie over Mrs. Mounce was due to her poverty, her religion, her age, the lack of recreational facilities, and the lack of a man in the household, and that this was reversible.

All of the facts in regard to the competency of the grandmothers were considered by the Trial Judge. He found that a cu-mulation of all factors disqualified them under LSA-C.C.P. Art. 4231, par. (6); and gave as his “Reasons for Judgment,” the following:

“The application of three relatives of the minor children, Kent, Robert and Michael Quave, have been made to this Court, each seeking to be named legal tutrix of said minors.
“The parents of the minor children met separate, tragic deaths in automobile accidents and their children, aged 9, 6 and 3 years respectively as named above, have been the subject of much concern and attention in the large families of the deceased parents.
“The applicants are:
1. Mrs. Edna Quave, the paternal grandmother.
2. Mrs. Emma H. Mounce, the maternal grandmother.
3. Mrs. Elsie Quave Willie, a paternal aunt.
“The Court entertained this case through three full trial days and heard a multitude of'witnesses. All of the applicants live in the Hammond area of the state and the backgrounds (ethnic, religious, financial and moral) of each applicant at times appears common to and at other instances greatly divergent from the other applicants.
“Mrs. Quave and Mrs. Mounce have an equal priority under Articles 263, et seq., of the Civil Code. Their capabilities and incapabilities were testified to at great length.
“Mrs. Quave is 55 years old and is divorced. She lives in a small home in a rather poor and dilapidated neighborhood. By her own admission, she would not want to rear the children in this house and indicated the intention to move into a new home if she obtained the tutorship sought herein. There is some evidence that the home life is not altogether satisfactory, due to Mrs. Quave sharing her home with two married daughters. The record also reflects a nervous condition of Mrs. Quave . which necessitated her moving back to Hammond from Metairie prior to her son’s death, her home in Metairie, at the time, being that of her now deceased son, the parent of the minors in this suit.
“Mrs. Mounce is 52 years old and lives in a semi-rural area, six miles from Hammond. She is also divorced and lives in her three bedroom home, shared by her daughter, who plans to marry in the near future. (The record shows that Mrs. Mounce testified she lives with two of her children, a 14-year old daughter who attends school, and an older daughter who is employed.) Mrs. Mounce supplements the small alimony received from her divorced husband by baby-sitting for her daughter who has four children including a five month old baby. She also washes clothes for neighbors. (The record shows that Mrs. Mounce does weekly wash for one neighbor, for which she is paid $3.00.) Her life is simple and conducted according to the rigid religious beliefs of a non-denominational order or group to which she belongs.
“The Court is of the firm opinion, that the apparent mandate of the Civil Code granting a superior right to ascendants over collaterals should not contravene the ultimate good and best interests of the minors, especially in view of the physical and emotional limitations of said ascendants.
“The grandmothers are each of such an age and of such physical and emotional condition, that the Court has a strong doubt of their ability to cope with the duties of properly rearing three active youngsters. Although, neither is infirm, there is ample evidence in the record to indicate that the children would not receive the best that is offered in this case. The children would be reared, in either case, in a fatherless home supervised by an elderly lady. Each grandmother has good intentions and the Court does not mean to imply that the children would be mistreated in either case. The Court is of the opinion that Mrs. Quave’s nervousness and the physical surroundings of her home disqualify her. The Court also is of the opinion that Mrs. Mounce is burdened with the care of four grandchildren and washing for neighbors as a means of existence, and these factors, added to the stern precepts of her religion, which forbid normal recreational activities, disqualify her. These conclusions are reached in the light of Article 4231(6) of the Code of Civil Procedure.
“The applications of Mrs. Elsie Quave Willie, as tutrix, and her husband, Charles Willie, as under-tutor, are considered by the Court as being most advantageous and favorable to the minors.
“The advantages are multifold. The primary advantage is that of Mr. Willie’s presence in the home. The children will have a father in the person of Mr. Willie, with whom the Court was impressed as a solid, hard working, morally correct person. His position of employment would permit the probable continuance of the respectable standard of living he now provides for his family. His wife, Mrs. Elsie Quave Willie, is apparently sincerely devoted to her home, her children and the Quave children.
“Prior to her death, Mrs. Dolores Quave, the mother of said minors, held a close relationship with Mrs. Willie. The Willie home is quite suitable and comfortable and the Quave children will get a better chance at life if reared in this home. Under Article 4067 of the Code of Civil Procedure, and the standards thereby adjured, the Court is of the opinion that the tutorship and custody of the Quave children should be granted to Mrs. Elsie Quave Willie and Mr. Charles Willie named as under-tutor.”

As I cannot find any basis to disagree with the District Judge, and conclude that his judgment is correct and should be affirmed, I must respectfully dissent.  