Lemoine v. LemoineLemoine v. Lemoine
- Reporters:
- ,
- Before:
- Thibodeaux, Saunders, Woodard
Nancy Sue Gregorie, Baton Rouge, for Brenda Gremillion Lemoine.
THIBODEAUX, Judge.
This is an appeal from a judgment granting a final divorce pursuant to
We find that
I.
ISSUE
We must determine:
- whether there is a substantive difference between reconciliation and failing to live separate and apart in determining whether a defense exists to granting a divorce pursuant to
La.Civ.Code art. 102 ; and, - whether Mrs. Lemoine filed a frivolous appeal which would warrant the grant of attorney fees, expenses, and reimbursement for alimony pendente lite payments made during the pendency of the appeal.
II.
FACTS
Brenda and Henry Lemoine physically separated on February 18, 1997, when Mr. Lemoine moved out of the marital domicile. On that same date, Mr. Lemoine filed a Petition for Divorce and Other Relief requesting that he be granted a divorce pursuant to
On August 25, 1997, 187 days after filing the Petition for Divorce and Other Relief, Mr. Lemoine filed a Motion for Final Divorce, requesting Mrs. Lemoine be required to show cause why a Judgment of Divorce should not be rendered. Mr. Lemoine alleged that 180 days had elapsed since service of process had been made on Mrs. Lemoine, and that 180 days had elapsed before the filing of his rule to show cause. He also asserted that the parties had lived separate and apart continuously with no reconciliation since the filing of his Petition for Divorce and Other Relief. Mrs. Lemoine answered and denied Mr. Lemoine‘s allegations that they had lived separate and apart continuously since the initial separation.
The Lemoines traveled out of town together on four occasions on overnight trips after their separation. It was also established at the trial that Mr. Lemoine stayed overnight
The court does not find reconciliation in this case. There was no intent, really, to—or a meeting of the minds where reconciliation was achieved. Occasional sexual encounters or going out, interacting in a sociable manner, that, itself, does not constitute a reconciliation. In fact, this Court sees that as quite mature.
The actions no [sic] not constitute reconciliation. The reason being that the Court believes that the purpose of the encounters was, perhaps, to bring this to an amicable end, with a property settlement dispute between the parties, and not necessarily to restore and renew marriage on a permanent basis, as required for the defense of reconciliation to a divorce action.
And there was no meeting of the minds as to the reconciliation, based upon my notes. I think that the parties have lived separate and apart for six months. Their interaction, their intermittent sexual encounters, Mr. Lemoine‘s occasional staying one or two nights at the house, he did not move any of his major items back into the house to show any type of intent to be there on a permanent basis, or where the differences between the parties had been solved or forgiven, and for that reason, this Court rules that a hundred and eighty days had past [sic] and the party may proceed—either party may proceed with obtaining a judgment of divorce at its wish.
The trial court rendered judgment in favor of Mr. Lemoine granting him a divorce pursuant to
III.
LAW AND DISCUSSION
Mrs. Lemoine filed this appeal, asserting that the trial court erred in granting a divorce pursuant to
In support of her position that reconciliation and living separate and apart are two different issues, Mrs. Lemoine cites Arnoult v. Letten, 155 La. 275, 99 So. 218 (La.1924). Although the legislation in effect at that time required that a married couple live separate and apart for seven years before being granted a divorce, Mrs. Lemoine contends that the case is on point in that it focused only upon whether the couple had lived separate and apart for the requisite period of time and, thus, had earned the right to divorce. She further asserts that in Arnoult, the Supreme Court distinguished a case involving the question of reconciliation as not being on point. Mrs. Lemoine also refers the court to Judge Hightower‘s concurring opinion in Woods v. Woods, 27,199, p. 1 (La.App. 2 Cir. 8/23/95); 660 So.2d 134, 136, a case involving the appeal of the granting of a divorce pursuant to
Further, Mrs. Lemoine contends that under the rules of statutory construction, every word, sentence or provision of law is to be given some effect. She asserts that the words in the Article are not ambiguous, vague, or unclear and are not subject to varying interpretations; therefore, since the word “reconciliation” does not appear in the Article, the appropriate question is whether the parties lived separate and apart continuously and not whether they reconciled.
Conversely, Mr. Lemoine asserts that
An action under this Article may be defeated by proof that the parties have reconciled during the one hundred eighty day period. See C.C. Art. 104, infra (rev. 1990). What constitutes reconciliation under this Article and Article 103 is a question of fact to be decided in accordance with jurisprudential guidelines.
(Citations omitted). He contends that Articles 102 and 104 are in pari materia, and, therefore, must be interpreted in reference to each other. See
Mr. Lemoine further asserts that the majority opinion in Woods, 660 So.2d 134, is a clear example of the relevance of reconciliation as a possible basis for extinguishing an Article 102 divorce action, and that the concurring opinion should be given little weight because it is not the holding of the court, nor the law of the case. He contends that the trial court correctly focused upon determining whether the parties had reconciled, and did not err in concluding that based upon the totality of the circumstances, the parties had not reconciled during the 180 day period and, thus, were entitled to a final divorce pursuant to
Mr. Lemoine submits that he should be granted attorney fees, expenses and costs for being required to defend a frivolous appeal. In addition, he claims entitlement to a money judgment against Mrs. Lemoine for the return of all alimony pendente lite payments made during the pendency of the appeal. He argues that where one appeals solely for the purpose of keeping alive her alimony pendente lite payments, a proper reward is also a return of all alimony paid since the date the judgment of divorce would otherwise have become final. Bouzon v. Bouzon, 537 So.2d 822 (La.App. 5 Cir.1989); Roland v. Roland, 519 So.2d 1177 (La.App. 1 Cir.1987); Samford v. Samford, 297 So.2d 465 (La.App. 2 Cir.1974). Mr. Lemoine raises the fact that Mrs. Lemoine filed a Reconventional Demand and also sought a divorce pursuant to
Living Separate and Apart Continuously
As stated above, the divorce action at issue in this case is that delineated by
Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that one hundred eighty days have elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least one hundred eighty days prior to the filing of the rule to show cause.
The motion shall be a rule to show cause filed after all such delays have elapsed.
It is clear from the record that Mr. Lemoine‘s Motion for Final Divorce was filed after the requisite 180 days had elapsed after the service of his Petition for Divorce and Other Relief upon Mrs. Lemoine. The only other proof necessary for a final divorce in this case is evidence that the parties lived separate and apart continuously for at least 180 days prior to the filing of the rule to show cause. Mrs. Lemoine contends that this requirement was not met and the divorce
“Living separate and apart” for purposes of obtaining a final divorce means that the parties live apart in such a manner that those in the community are aware of the separation. Billac v. Billac, 464 So.2d 819 (La.App. 5 Cir.1985) (citing Quinn v. Brown, 159 La. 570, 105 So. 624 (1925); Arnoult v. Letten, 155 La. 275, 99 So. 218 (1924); Hava v. Chavigny, 147 La. 330, 84 So. 892 (1920)). The Lemoines occupied separate dwellings during the requisite time period, although they did interact intermittently in the marital home and elsewhere. The record reflects that Mr. Lemoine rented a separate home, kept all of his major personal belongings at his separate home, was absent for weeks at a time from the marital home, and never remained at the marital home for more than a few nights at a time on the sporadic occasions in which he visited. This court is satisfied that they lived apart in such a manner that their separation was visible in the community and that others were aware of the separation. The trial court also orally stated that it believed the parties lived separate and apart for six months. The court‘s finding was espoused in the midst of its discussion of the intermittent sexual encounters between the couple and Mr. Lemoine‘s occasional overnight visits at the marital home. Although the court spoke of these actions in terms of whether they were evidence of a reconciliation between the parties, we cannot say that the court was erroneous in doing so.
The trial court appropriately considered the issue of reconciliation in its determination of whether the divorce should be granted. Reconciliation is a defense that may be asserted to extinguish a cause of action for divorce pursuant to
[W]e find that the mandate set forth in Nethken v. Nethken, 307 So.2d 563 (La. 1975), a case involving a LSA-R.S. 9:302 (now repealed) divorce based upon no reconciliation for a period of six months or more following a judgment of separation, still holds true as to the right to a divorce after the passing of a prescribed statutory time without reconciliation.
The Louisiana Supreme Court stated in Nethken, supra, at page 566:
Such a divorce decree is founded entirely upon the absolute right of either spouse to obtain the divorce on the proof merely that there has been no reconciliation during the probation period allowed by statute. August v. Blache, 200 La. 1029, 9 So.2d 402 (1942).
(Emphasis in original). Further, the 1990 Revision Comments to
(c) The defense of reconciliation and the various procedural defenses implicit in this Article ... should be raised at the hearing on the rule to show cause provided for in Code of Civil Procedure Article 3952 (added 1990).
(e) An action under this Article may be defeated by proof that the parties have reconciled during the one hundred eighty day period. See C.C. Art. 104, infra (rev. 1990).
The trial court did not commit error in considering whether the parties reconciled. In fact, we find that it applied the appropriate test for determining whether the Lemoines were entitled to a final divorce pursuant to
Frivolous Appeal
In his Answer to Appeal, Mr. Lemoine prays for attorney fees, expenses and costs of appeal for being required to defend a frivolous appeal. He also requests a money judgment against Mrs. Lemoine in the amount of all alimony pendente lite payments made during the pendency of this appeal.
Damages for frivolous appeals are provided for in
Since appeals are favored, such penalties should not be granted unless they are clearly due; e.g.: when there are no serious legal questions, when it is manifest that the appeal is taken solely for the purpose of delay, when it is evident that appellant‘s counsel is not serious in advocating the view of law which he presents. C.C.P. art. 2164. Guidry v. Carmouche, 320 So.2d 267 (La.App. 3 Cir.1975); Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1 Cir.1977); Hebert v. Knoll, 370 So.2d 151 (La.App. 3 Cir.1979).
Allen, 567 So.2d at 1158 (citing Salmon v. Hodges, 398 So.2d 548, 549 (La.App. 1 Cir. 1979)). We believe Mrs. Lemoine‘s contentions in her brief and in oral argument were brought in good faith. The issues raised were not so frivolous as to warrant damages on appeal, and we cannot say that this appeal was brought solely for the purpose of delay. Consequently, we do not find that Mr. Lemoine is entitled to the damages requested for frivolous appeal.
IV.
CONCLUSION
Accordingly, the judgment appealed from is affirmed. All costs are to be borne by defendant/appellant, Brenda Gremillion Lemoine.
AFFIRMED.