Allen v. Allen

642 So. 2d 202, 1993 WL 492565
CourtLouisiana Court of Appeal
DecidedJuly 1, 1994
Docket25281-CA
StatusPublished
Cited by4 cases

This text of 642 So. 2d 202 (Allen v. Allen) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Allen, 642 So. 2d 202, 1993 WL 492565 (La. Ct. App. 1994).

Opinion

642 So.2d 202 (1993)

Charles Harold ALLEN, Plaintiff-Appellee,
v.
Mildred Joe Neal ALLEN, Defendant-Appellant.

No. 25281-CA.

Court of Appeal of Louisiana, Second Circuit.

December 1, 1993.
Opinion Amending Decision in Part on Rehearing March 30, 1994.
Writ Granted July 1, 1994.

*203 Barham, Adkins & Tatum by Tommy J. Adkins, Ruston, for appellant.

Bobby L. Culpepper, Jonesboro, for appellee.

Before HIGHTOWER, VICTORY and WILLIAMS, JJ.

HIGHTOWER, Judge.

A former wife appeals a divorce decree denying her permanent alimony while granting, she argues, inadequate support pendente lite. She also challenges a subsequent summary decision validating a prenuptial agreement between the parties and declaring their property to be separate. We affirm the initial judgment in all respects, but reverse and remand the summary adjudication.

BACKGROUND

Charles Harold Allen ("Harold"), plaintiff-appellee, and Mildred Jo Neal Allen ("Mildred"), defendant-appellant, married on December 6, 1986. After leaving the matrimonial domicile on October 28, 1991, Harold later petitioned for divorce under LSA-C.C. Art. 102. His spouse soon answered and, also, filed a reconventional demand seeking pendente lite and permanent alimony, use of the family residence and automobile, and termination of the community.

At trial, neither party disputed the granting of a divorce. Rather, the main issue concerned whether the wife's fault barred her permanent alimony claim. Both litigants called a roster of witnesses with widely conflicting testimony.

As set forth in written reasons, after three days of trial, the district court found the wife at fault on the following grounds:

(1) Having conflicts with Plaintiff because Plaintiff made donations to non-profit charitable groups;
(2) Making thousands of dollars of unauthorized credit card charges against Plaintiff's account;
(3) Criticizing Plaintiff to Plaintiff's children;
(4) Mishandling financial affairs, leading to Defendant's personal bankruptcy;
(5) Complaining that Plaintiff did not do enough financially for Defendant's children;
(6) Complaining that Plaintiff bought Defendant a "factory" car rather than a new car;
(7) Categorizing Plaintiff's hometown and home area, to Plaintiff and others, as "the hell hold [sic] of America;"
(8) Arguing "back and forth" with Plaintiff, for a long period of time.

Although indicating the "actions taken individually would not constitute `fault' of a degree *204 to cause the dissolution of the marriage," the trial judge termed such behavior as a whole to be "of a serious nature and rise to that level of `fault' to constitute a contributory cause of the failure of the marriage." Consistent with that pronouncement, the judgment granted the husband a divorce and denied his spouse's claim for permanent alimony, but awarded her $1,000 per month as alimony pendente lite, along with use of the family automobile and home. That decree, signed on November 23, 1992, further reserved any community property rights.

Meanwhile, Mr. Allen moved for summary judgment declaring the parties to be separate in property and returning the car and house to his possession. In support of that motion, he produced a prenuptial agreement rejecting a community property regime, in addition to a deposition and affidavits verifying the events surrounding execution of the contract. Subsequently, Mrs. Allen filed a dilatory exception maintaining that LSA-C.C.P. Art. 969(A) precludes use of such a procedure for determining marital property rights. Alternatively, she presented an opposing affidavit asserting certain factual issues in reference to the transaction. Following a hearing on December 10, 1992, the trial judge granted the relief sought by movant, after overruling the exception.

Mrs. Allen now appeals those portions of the divorce judgment relating to permanent and interim spousal support, as well as the summary judgment.

DISCUSSION

Permanent Alimony

In her first two assignments, Mrs. Allen contends the trial court erred in finding her at fault in the marriage dissolution. She first argues that her actions, as enumerated by the trial judge, do not constitute sufficient grounds to bar post-divorce alimony. Second, she urges that her conduct arose in justifiable response to her husband's shortcomings and should not defeat her support entitlement.

Of course, under LSA-C.C. Art. 112, a spouse seeking permanent alimony must be without fault, and the burden of proof is upon the claimant. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Currier v. Currier, 599 So.2d 456 (La.App. 2d Cir.1992); Taylor v. Taylor, 579 So.2d 1142 (La.App. 2d Cir.1991).

Notwithstanding recent codal revisions pertaining to dissolution of marriages (Acts 1990, Nos. 1008, 1009), the concept of alimony-preclusive "fault" is not limited to adultery and felonies resulting in incarceration. That term instead, as we discussed in Currier, supra, and Mathews v. Mathews, 614 So.2d 1287 (La.App. 2d Cir.1993), both citing Civil Code Article 98 and Pearce v. Pearce, 348 So.2d 75 (La.1977), continues to contemplate substantial commissions or omissions violating a spouse's marital obligations and proximately causing or independently contributing to the breakup of the marriage. Indeed, as noted in Mathews, supra, at least two circuits have concluded that the post-divorce scheme still encompasses the former Civil Code Article 138 grounds as "phantom" bars to alimony. See Hornsby v. Hornsby, 592 So.2d 508 (La.App. 5th Cir.1991), writ denied, 597 So.2d 1030 (La.1992); Wicker v. Wicker, 597 So.2d 1273 (La.App. 3d Cir. 1992).

In the case sub judice, the lower court's factual findings effectively preclude alimony, whether "fault" is measured against the Pearce-Article 98 precepts or even the "phantom" Article 138 standard. And, unless clearly wrong, such determinations of fact cannot be disturbed on appeal. Pearce, supra; Taylor, supra; Green v. Green, 567 So.2d 139 (La.App. 2d Cir.1990). Given that domestic relation issues largely turn on evaluations of witness credibility, a trial judge perforce should be vested with great discretion in such matters. Pearce, supra; Mathews, supra; Currier, supra; Taylor, supra.

The major problems between the Allens clearly revolved around monetary issues. In point of fact, Mildred's general irresponsibility in that regard eventually led to her personal bankruptcy. Several times early in the marriage, Harold financially rescued his wife and provided substantial sums to aid her adult children. Later, after becoming frustrated with the situation, he advised her to *205 cease borrowing money or co-signing loans for her daughter and two sons. Mrs. Allen, however, ignored that advice by continuing to incur debt without her husband's knowledge, and in disregard of her belief that "most children" do not repay such indebtednesses. Additionally, despite her present contention that she left her job at a local bank for health reasons, testimony by others and her subsequent active participation in numerous community projects tended to establish that she voluntarily became unemployed, beginning in the second year of the marriage.

Mr.

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Bluebook (online)
642 So. 2d 202, 1993 WL 492565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-allen-lactapp-1994.