Tiffie v. Tiffie

ON MOTION TO DISMISS. EN BANC. SAVOY, Judge. This matter is before the Court on a motion by plaintiff-appellee to dismiss an appeal obtained by defendant-appellant wherein the district court granted plaintiff-appellee the custody of one of the minor *610 children born of the union between ap-pellee and appellant. In his motion to dismiss counsel for appellee states that the order of court granting appellant a suspensive appeal upon her furnishing bond in the sum of $500.00 is invalid and contrary to the provisions of LSA-C.C.P. Article 3943 which provides, in part, that a suspensive appeal shall not lie from a judgment granting custody to one of the parties to the litigation. In the case of Cressione v. Millet, 212 La. 691 , 33 So.2d 198 , in which identical facts were presented as in the case at bar, the Supreme Court dismissed the appeal as a suspensive áppeal but allowed it to remain as a devolutive appeal. In its holding the ^Supreme Court said:, “Although the appeal in this case is designated as a suspensive appeal, under the well-settled jurisprudence of this state there is no right to a suspensive appeal from a judgment determining who shall have the care and custody of a child. Downey v. Downey, 183 La. 424 , 164 So. 160 ; Guidry v. Guidry, 206 La. 1049 , 20 So.2d 309 , and authorities therein cited. The appeal in this case, however, is valid as to a devolutive appeal but not as to a suspensive appeal. See Charvanel v. Esvard, 150 La. 305 , 90 So. 658 ; Graziani v. Elder & Walters Equipment Co., Inc., 208 La. 80 , 22 So.2d 841 , and authorities therein cited.” The holding in the Cressione case, supra, was followed in Carlson v. Carlson, (La.App., 4 Cir., 1961), 125 So.2d 639 . For the reasons assigned, the motion to dismiss the appeal is sustained as to a suspensive appeal but is denied as to a devolutive appeal. All costs of these proceedings to be paid by mover, plaintiff-appellee. Motion granted in part and denied in part.