Rittiner v. SinclairRittiner v. Sinclair
An ex-wife appeals from a judgment of divorce only insofar as it found the spouses mutually “at fault” and therefore denied her alimony. The ex-husband by answer also complains of the judgment‘s declaration
The principal question is what is the nature of fault sufficient to deprive a wife of alimony? We conclude, from Kendrick v. Kendrick, 1958, 236 La. 34, 106 So.2d 707, and from the statutory history of and the interpretation of
Because the wife‘s fault was not sufficient to constitute grounds for sepаration, we reverse the refusal to reserve her right to alimony.
The wife did drink a great quantity of alcohol, but the husband drank apace, and both husband and wife “held their liquor” well. Home consumption approximately equivalent to 300 fifths of liquor during a year (a large part of which was spent travеlling away from home) may have seemed to the trial judge excessive, and “fault” on the part of both parties. However, it is not the quantity of alcohol but rather the extent and habitualness of intoxication that constitutes “habitual intemperance” within
Almost all of the specific instances of misbehavior (argumentativeness, punching plaintiff in his back) are both related tо the drinking and, in any case, occurred so long ago (as long as nine years ago) as to be considered condoned.
The purported “last-straw” incident involved the husband‘s son who was redeemed from teen-age illiteracy and brought to responsible and productive adulthood at least in part by the efforts of the wife. It is anyone‘s guess why she later became intolerant of and intolerable to that stepson; but it is not cause for separation under
We therefore conclude that the wife was not guilty of fault that would defeat her entitlement to alimony.
We agree with the husband that his demand for a declaration of no community should have been adjudicatеd. The termination of a marriage by divorce (without prior judicial separation) ordinarily terminates the community, and therefore a petition either for partition of the community or for a declaration that no community existed is an appropriate adjunct to the demand for divorce.
Despite the trial judge‘s refusal to allow evidence fully on the question there is testimony by both husband and wife that they went to the notary‘s office separately and signed at different times the purported “act before a notary and two witnesses” required by
The judgment is reversed in its refusal to decide the validity of the contract against community and there is judgment decreeing the contract invalid; and the judgment is further reversed insofar as it held the ex-wife at fault and there is judgment declaring thе ex-wife free of fault within
BEER, J., concurs.
BEER, Judge, concurring.
In Cousin v. Cousin, 327 So.2d 136 (La. App. 4th Cir. 1976), I felt obliged to question our preoccupation with “fault,” observing that the state of the jurisprudence might signal a need for legislative action. The Legislature appeared to respond with the modificаtion and reenactment of
However, in Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir. 1978), I felt obliged to note that although progress appeared to have been achieved by the codification of Article 141, its usefulness is frustrated by the inclusion of an automatic mutual fault determination. While correctly acknowledging that many separations are the result of mutual failure on the part of husband and wife, the article requires absolute, unequivocal and irrevocable disallowance of alimony when it (the article) is used as the basis for obtaining a judgment of separation. Parties to a wretchedly unhappy marriage, еach of whom honestly acknowledges their own failings, must be reluctant to invoke Article 141 because of its absolute fault finding provision.
So, I still find myself questioning our approach. We continue to be preoccupied with “fault” (which Webster defines as a moral weakness less serious than a vice), and that preoccupation continues—more often than not—to result in knee jerk determinations of “mutual fault.”
It is an oversimplification to say that a marriage of 25 or 30 years which has gone stale, with resulting degrees of disappointment, contempt, disgust and, finally, abhorrence оn the part of the parties, is the result of “mutual fault” to the extent that such determination absolutely preempts any consideration of alimony.
Unless one or the other of the parties has conducted himself or herself in a totally abhorrent and classically unacceptable way, the determination of an award of permanent alimony should not be irrebuttably preempted on a premise of such a disjointed, nebulous concept as “mutual fault.” What is, in most cases, nothing more or less than mutual disillusionment should not summarily deprive either party of their justiciable right to seek alimony.
Though adhering to these views, I agree with the penetrating and painstaking review which the majority has brought to its deliberations here and concur in the result reached.
ON REHEARING GRANTED
REDMANN, Judge.
We granted a rehearing to reconsider the question of the validity of a matrimonial agreement. To avert duplication of the Supreme Court‘s and counsel‘s work, we did not limit rehearing, although our order restricted argument to that question. On application by counsel for Mr. Rittiner we specified that our grant of rehearing was “unlimited” notwithstanding the restriction of argument.
The consequence of our grant of unlimited rehearing was the recall of our judgment in its entirety, including its reversal of the trial court‘s judgment that Mrs. Rittiner was not entitled to alimony because she was at fault. Except that she
Now an application for writs shows that Mr. Rittiner has elected to discontinue his voluntary payments, and Mrs. Rittiner‘s application for a fixing of the alimony we held her entitled to has been dismissed on an exception to the trial court‘s jurisdiction relying on
We add, in further response to the writ application, that an appeal divests the trial court of jurisdiction only “over all matters in the case reviewable under the aрpeal“;
Original judgment reinstated insofar as it decreed Mrs. Rittiner free from fault and reserved her right to alimony, enforceable immediately. In other respects only the matter remains under submission on rehearing.
ON REHEARING
Our original opinion ruled that the appearance and signature by one prospective spouse at one time and by the other at another time do not constitute “an act before a notary and two witnessеs” as required by
Our review of the French authorities1 shows that, even when art. 1394 French Code Civil required only an act before a notary, the spouses had to execute the act simultaneously. After a February 5, 1957 ruling to that effect by the Court of Cassation, the French Code was amended (Loi 65-570, July 13, 1965) to add that the contract be made before a notary in the simultaneous presence and with the simultaneous consent of the parties. But the amendment further еxpressly allowed the use of mandataries (as courts had allowed), which is inconsistent with any theory that a continuing simultaneous consent of the parties can only be expressed by one act: a spouse-to-be may have changed his mind, after his act several days earlier authоrizing a mandatary to express consent in a marriage contract, and the consent of the spouses can only be found in two acts, namely the marriage
We have concluded that we erred in requiring for the formal validity of an authentic act in Louisiana that the notary and witnesses sign the act at the time the person executing the act signs. We now hold that all that the law requires is that the notary and witnesses be present,
Our basic reasoning is that substance should prevail over form unless the law unmistakably requires a contrary result. Here the mature spouses-to-be must be presumed to have desired and consented to the exact agreement contained in the written instrument. The law only requires that the agrеement be “made by an act before a notary and two witnesses,”
Although our Supreme Court does readily invalidate testaments for failure to comply with express formal requirements, Succession of Roussel, La. 1979, 373 So.2d 155, its frequent act has been to “limit the rigid enforcement of the formalities required in the execution of wills only to those instancеs in which the law is palpably violated“, Succession of Beattie, 1927, 163 La. 831, 112 So. 802, 804. Thus Prudhomme v. Savant, 1922, 150 La. 256, 90 So. 640, accepted a public nuncupative will typewritten by the notary as “written by the notary” within
The marriage contract is like the will in that, after the event of marriage as after the event of death, formal invalidity cannot be cured by executing another. The considerations thаt dictate that a will be maintained if possible dictate that a marriage contract be maintained if possible. Although a marriage or other contract which is required to be but is not an authentic act is invalid (as held by the cases cited in our original opinion), we now hold that there has been no showing that the marriage contract in question here is not an authentic act.
We therefore reverse our earlier ruling insofar only as it decreed the contract invalid. We reinstate our reversal of the trial judge‘s refusal to decide, and we now remand for litigation of, the husband‘s demand for a declaration that no community existed between the spouses. A separate opinion has previously reinstated the alimony-entitlement aspect of the judgment. The ex-husband is to pay costs thus far.