Florent v. FlorentFlorent v. Florent
- Reporters:
- ,
- Before:
- Stouligtern
This appeal arises out of the trial court’s refusal to permit appellant to adduce evidence in support of his amended petition for a divorce alleging post-separation adultery by his wife. Also questioned is the reasonableness of the amount awarded her as permanent alimony.
A prelude to these proceedings began on December 2, 1976 with the filing of a petition for Separation from Bed and Board by the plaintiff, Edward Florent, Jr. An answer and reconventiоnal demand seeking the same relief was filed on behalf of the defendant, Mrs. Lorenza Florent.
On November 30,1977 after a trial on the merits, Judgment by Consent was rendered in favor of Lorenza Florent decreeing a separation from bed and board in her favor and awarding her “permanent alimony” of $35.00 per week. A subsequent motion for a decrease in alimony was denied on May 19, 1978.
The divorce matter came to trial on September 6, 1979, at which time the trial judge refused to hear testimony of the wife’s post-separation fault and as stated in his Reasons for Judgment the divorce rendered in favor of the husband is based upon the parties continued living separate and apart. He expressly denied that the judgment was based on adultery.
The transcript reflects that at the beginning of the trial, Mrs. Florent’s counsel stipulated: “. . . at a point in time during that year [the post-separation period] Mrs. Florent has lived with Herbert Magee, not her husband, and maintained adulterous relations and is presently living with this man”. During her testimony seeking to establish her right to “permanent” alimony (C.C. Art. 160) Mrs. Florent also admitted that she was living with Herbert Mаgee the co-respondent named in appellant’s amended petition.
Based on the evidence, the trial сourt rendered judgment granting Edward Flo-rent, Jr. a divorce but condemning him to pay alimony in the amount of $35.00 per week “as agreеd upon by the parties”. Plaintiff appeals.
The trial judge relied on the case of Laurent v. Laurent,
The facts of Laurent involved an adultery alleged to have occurred before the judgment of separation and the court so noted:
“... it is clear from the reasons for judgment that the finding of fault on the part of the wife was based on the allegеd adultery occurring before the original separation judgment. It is from this denial of alimony that the wife appeals.”369 So.2d 476 at 477.
In Laurent, supra, we referred to the Supreme Court case of Fulmer v. Fulmer,
“Thus, where a judicial separation is decreed аs caused by the fault of one spouse or the other, such fault as judicially determined to be the cause of the separation is normally determinative of the issue of whether the husband or the wife is or is not at fault, for purposes of deciding whether the wife is entitled to alimony under Article 160. Such a conclusion Is, of course, not applicable if the divorce is sоught for post-separation fault, such as adultery; for the sole effect of the separation judgment is a conclusivе adjudication as to which spouse’s preseparation fault primarily caused the separation.”301 So.2d 622 at 629. Emphasis added.
The petition of Mr. Florent specifically alleges adultery occurring after the judicial separation of the parties. Fulmer, supra, and Laurent, supra, clearly support the admission of evidence of post-separation fault. See also: Moon v. Moon,
Although the trial court did not permit the introduction of any evidence bearing upon the issue of the wife’s adultery, this court is constitutionally obligated tо review both the law and facts and is empowered to render any judgment which is just, legal and proper upon the record before it. Roncal v. Commercial U. Assur. Co.,
We question the probative value of the admission against interest made by Mrs. Florent’s counsel, since it is tantamount to a confession of judgment and even if admitted by her it would be insufficient to establish adultery. Arbour v. Murray,
The granting of a judgment of divorce in favor of Mr. Florent, based on the expiration of the statutory period without recоnciliation as opposed to adultery is one of substantial legal significance. Under the former, Mrs. Florent’s freedom from fault is established by the judgment of separation and if found to be in necessitous circumstances, she would be entitled to alimony under C.C. Art. 160; whereas if adjudged guilty of post-separation adultery she would forfeit the right to support. Though the judgment is correct in its rеsult, we must annul it in order to afford appellant the opportunity to prove his allegations of adultery and avoid the liability of future alimony-
No need exists to consider the reasonableness of the alimony awarded Mrs. Florent since this matter is remanded to the trial court for further action, the disposition of which may negate her right to permanent alimony. Nothing herein shall affect the right of the wife to continue to receive the alimony decreed in the judgment of separation frоm bed and board.
For the foregoing reasons, the judgment of the trial court is annulled in its entirety and this matter is remanded for further proceedings consistent with the views herein expressed. Costs are to await the final disposition of this matter.
REMANDED.