Williams v. Mabry , 1971 La. App. LEXIS 6210 ( 1971 )

CULPEPPER, Judge.

This is a suit for divorce on the grounds of adultery, custody of two minor children born of the marriage and alimony for the support of the wife and children. Judgment by default was rendered in favor of plaintiff wife for the relief sought. The defendant husband has appealed.

The issue on appeal is whether the judgment of default was confirmed by proof sufficient to establish a prima facie case, as required by LSA-C.C.P. Art. 1702.

The record before us contains the transcript of the testimony of the plaintiff and two witnesses who appeared at the hearing on confirmation of default. The two witnesses are private investigators employed by plaintiff. They testified they saw the defendant husband enter an apartment with a woman, other than his wife, on February 12, 1969, at about 11:00 p. m. In a few minutes the lights went out and the detectives remained in front of the apart- • ment until about 3:00 a. m. without seeing the defendant or the woman leave. Such uncontradicted evidence is sufficient to establish a prima facie case of adultery.

As regards the custody of the two minor children, the burden was on the defendant husband to show that the mother was either unfit or unable to care for them. In the absence of any such showing by the defendant, the mother is presumed to be best suited' for custody.

On the question of alimony, plaintiff testified that her husband earned approximately $700 a month as an employee of Paterson Truck Lines and that his annual earnings were approximately $10,000. Plaintiff prayed for alimony for her maintenance and support in the sum of $125 per month and for the sum of $250 per month for the two children, making a total of $375. She testified she actually needed more, but that she was willing to accept this sum under the circumstances. The trial judge awarded the total of $375. In the absence of any contradictory evidence, plaintiff proved a prima facie case as to the alimony.

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

Affirmed.