Blake v. BlakeBlake v. Blake
HALL, Chief Judge.
Plaintiff, Wilbur Gene Blake, appeals from the judgment of the district court awarding defendant, Shirlee Faye Johnson Blake, permanent alimony in plaintiff‘s action for divorce. Plaintiff argues that the defendant was at fault in the termination of the marriage so as to be precluded from alimony. We agree and reverse that portion of the judgment of the district court awarding alimony to the defendant.
FACTUAL BACKGROUND
The plaintiff and defendant were married on July, 1977. No children were born of the marriage. Plaintiff instituted the instant action for a divorce on November 3, 1983 alleging that the parties had lived separate and apart from October 31, 1982 and had not reconciled since that date. In defendant‘s answer, defendant alleged that she was not at fault and reconvened against plaintiff for permanent alimony.
At the trial on the merits, the evidence established that following a dispute plaintiff left the matrimonial domicile for an overnight stay. After the plaintiff returned home, defendant moved from the family home the following day. Defendant testified that she left the matrimonial domicile primarily because the parties worked too much and did not have enough time for each other, causing her to feel “lonely.” The evidence indicated that defendant did not depart from the matrimonial domicile as a result of any particular conduct on the part of the plaintiff. Although plaintiff attempted to reconcile with the defendant on several occasions after the parties separated, defendant did not feel she could return to the matrimonial domicile and live with plaintiff as his wife as she liked being her “own person.”
The trial court granted plaintiff a divorce on the grounds that the parties had lived separate and apart in excess of one year pursuant to
ASSIGNMENTS OF ERROR
Plaintiff-appellant specifies the following errors:
1. The trial court erred in finding that the defendant was free from fault, specifically that defendant had not abandoned plaintiff; and
2. The trial court erred in finding that defendant was without sufficient means for her support.
FAULT OF DEFENDANT
It is well-settled that the findings of fact by the trial court on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Tate v. Tate, 442 So. 2d 1379 (La.App.3d Cir.1983); Palmer v. Palmer, 433 So. 2d 346 (La.App.3d Cir. 1983), writ denied, 441 So. 2d 213 (La.1983); Taddonio v. Kinney-Taddonio, 428 So. 2d 486 (La.App.4th Cir.1983) and citations therein. A spouse is entitled to alimony only if he or she was free from fault in the termination of the marriage.
The requirements for proof of abandonment, a ground for separation under
1. The party has withdrawn from the common dwelling; and
2. The party left without lawful cause; and
3. The party has constantly refused to return to live with the other.
The primary issue before this court is whether defendant was guilty of abandonment and thus, at fault in the termination of the marriage. If so, defendant is precluded from receiving permanent alimony.
The evidence establishes that defendant left the family home without lawful cause and refused to return despite plaintiff‘s attempts for a reconciliation. It is clear that defendant‘s sole reason for leaving was general dissatisfaction with the relationship because the couple had little time for each other rather than due to any particular conduct on the part of the plaintiff. Defendant indicated that she had no desire to resume the marital relationship as she liked being “her own person.” These reasons do not amount to lawful cause for leaving the marital home. Because defendant withdrew from the family home without lawful cause and has refused to return, she is guilty of abandonment within the contemplation of
Defendant argues that the failure of plaintiff to allege defendant‘s fault in his pleadings did not place defendant on notice that fault would be an issue at the trial on the merits and prejudiced defendant at trial when plaintiff sought to prove defendant‘s fault. Defendant cites Carter v. Carter, 316 So. 2d 829 (La.App.1st Cir.1975), writ refused, 320 So. 2d 913 (La.1975), as authority.
In Carter v. Carter, supra, the defendant-wife reconvened against the plaintiffhusband for alimony alleging that she was not at fault in the separation. The plaintiff-husband filed an answer to the reconventional demand generally alleging that defendant-wife was guilty of “mental and physical cruelty.” The court found that these alleged acts were set forth in broad and unspecific terms so as to impose an unreasonable burden of proof upon the defendant-wife. Noting that the burden of proof of freedom from fault so as to be entitled to alimony was a heavy burden and involved proof of a negative, the court found the burden of proof must be applied with reason and fairness. The court stated that unless the wife is informed by the husband‘s answer to her petition for alimony of some specific allegation of fault on her part, she would be put in the impossible position of disproving every possible fault which could cause a separation. In examining Carter v. Carter, supra, the court in
In the instant case, plaintiff did not file an answer to defendant‘s reconventional demand for alimony. The omission may have occurred because defendant did not label the answer as a reconventional demand as required by
Defendant specifically put fault at issue when she alleged that she was free from fault and reconvened for permanent alimony. The burden of proof was on her to establish her freedom from fault. At the trial on the merits, defendant offered evidence of her freedom from fault, made no objections to the introduction of evidence pertaining to her fault, and much of the evidence concerning defendant‘s fault came from defendant‘s own testimony. While unexpected accusations of misconduct can act to create an unfair burden of proof on the spouse attempting to prove freedom from fault, it does not appear that such occurred under the facts of the instant case. The fact of her leaving the marital home was from the outset an obvious point of contention in determining the issue of her freedom from fault. See Baham v. Baham, supra.
As defendant was guilty of abandonment, which is a ground for separation enumerated in
DECREE
For these reasons, the judgment of the trial court is reversed insofar as it awards permanent alimony to defendant, Shirlee Faye Johnson Blake, and her demands for permanent alimony are rejected. In all other respects the judgment is affirmed. Costs of this appeal are assessed to defendant.
REVERSED IN PART, AFFIRMED IN PART.