Opinion
No. 42343.
June 30, 1955.
APPEAL FROM FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, STATE OF LOUISIANA, HONORABLE D. I. GARRETT, J.
Joseph S. Guerriero, Monroe, for appellant.
Jones Blackwell, West Monroe, for appellee.
In this proceeding the district court rendered a judgment in favor of plaintiff, James Edward Wyatt, it decreeing, in accordance with his prayer, an absolute divorce between the parties and awarding to him the permanent care, custody and control of the minor child born of the marriage. From the judgment the defendant wife, Bettie Jo Wyatt, obtained a suspensive appeal.
In this court appellee has filed a motion in which he avers "that said appeal should have been suspensive only insofar as it applied to the judgment of divorce and the appeal should have been devolutive insofar as it applied to the custody" of the minor child. Accordingly, he prays that the appeal respecting the portion of the judgment affecting custody be considered devolutive in character only.
The motion is well taken. "* * * There is no right to a suspensive appeal from a judgment determining who shall have the care and custody of a child. * * The reason why an appeal cannot stay execution of a judgment awarding to someone the care and custody of a child whose care or custody is in contest as a proper subject of litigation is that the child is always subject to the authority of the judge having original jurisdiction over the contest. * * *." Guidry v. Guidry, 206 La. 1049, 20 So.2d 309, 310, and cases therein cited. See also Cressione v. Millet, 212 La. 691, 33 So.2d 198.
For the reasons assigned the appeal with reference to the custody of the minor child is dismissed as suspensive and decreed to be valid and effective as devolutive. Regarding the matter of divorce the suspensive appeal is unaffected.