Baham v. Baham

456 So. 2d 1032
CourtLouisiana Court of Appeal
DecidedAugust 28, 1984
Docket84-CA-14, 84-CA-15, C/W 84-CA-359 and C/W 84-CA-360
StatusPublished
Cited by9 cases

This text of 456 So. 2d 1032 (Baham v. Baham) 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
Baham v. Baham, 456 So. 2d 1032 (La. Ct. App. 1984).

Opinion

456 So.2d 1032 (1984)

Janice Gurtner BAHAM
v.
Hollis Roy BAHAM. (Two cases)

Nos. 84-CA-14, 84-CA-15, C/W 84-CA-359 and C/W 84-CA-360.

Court of Appeal of Louisiana, Fifth Circuit.

August 28, 1984.

*1033 Joel Levy, Levy & Levy, Marrero, for plaintiff-appellant.

Lloyd J. LeBlanc, Jr., George Ann Hayne Graugnard, Accardo, Carville, Edrington, Leblanc & Golden, LaPlace, for defendant-appellee.

Before BOUTALL, CHEHARDY and CURRAULT, JJ.

CURRAULT, Judge.

In this appeal, plaintiff Janice Gurtner Baham challenges the trial court judgment finding her "not without fault" for purposes of permanent alimony after divorce, as well as the judgment award for child support in the amount of Two Hundred Fifty Dollars ($250), plus medical expenses.

Mrs. Baham filed a suit for separation from appellee, Hollis Roy Baham, on September 16, 1981. On January 18, 1982, a consent judgment was entered into giving the custody of two minor children to plaintiff along with child support in the amount of Four Hundred Twenty-Five Dollars ($425) per month. A judgment of separation was never rendered.

On March 4, 1983, appellant filed for divorce on the grounds of living separate and apart in excess of one year, and in connection therewith sought child support, alimony pendente lite and permanent alimony. On April 20, 1983, a consent judgment was entered into awarding Mrs. Baham Two Hundred Dollars ($200) per month alimony pendente lite.

On June 9, 1983, a rule for contempt was filed by plaintiff for failure to pay child support, for arrearages and executory judgment and for revocation of defendant's visitation rights.

On June 17, 1983, all matters were consolidated and transferred to Division "B" of the Twenty-Ninth Judicial District Court and set for trial on September 2, 1983. Prior to trial, one of the children attained her majority.

The judgment of the trial court rendered on October 3, 1983, in pertinent part, granted the divorce on the grounds of having lived separate and apart in excess of one year; awarded plaintiff the custody of the minor child; awarded child support in the amount of Two Hundred Fifty Dollars ($250) per month, plus all medical expenses; found defendant, Mr. Baham, in arrears in the sum of Three Thousand, One Hundred Ninety-Seven Dollars and Fifty Cents ($3,197.50) and made the amount executory; granted reasonable visitation rights to defendant and denied permanent alimony to plaintiff on the basis that she was not free from fault.

Plaintiff thereafter perfected this appeal of the judgment.[1]

Four issues are presented for our review.

(1) Whether the trial court should have revoked defendant's visitation rights as stipulated at trial;

(2) Whether the trial court erred in its determination of the amount of arrearages;

(3) Whether the trial court erred in finding plaintiff at fault and thereby denying her alimony; and

(4) Whether the determination of the amount of child support was in error.

The first two allegations of error are conceded by appellee in brief and supported by the record. Consequently, the trial court judgment is reversed on visitation rights and corrected to reflect the arrearages owed from the sum of Three Thousand, *1034 One Hundred Ninety-Seven Dollars and Fifty Cents ($3,197.50) to the amount of Four Thousand, Two Hundred Eighteen Dollars and Fifty Cents ($4,218.50).

Appellant argues next that the trial court erred in denying permanent alimony in that (1) the trial court determined that mutual incompatibility is a bar to permanent alimony; and (2) that the facts do not support a finding of fault chargeable to the wife.

In her petition for divorce, based on living one year separate and apart (LSA-R.S. 9:301), Mrs. Baham sought permanent alimony as provided in Civil Code Article 160 which states in pertinent part:

"[A] When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income...."

Louisiana law provides that a spouse seeking permanent alimony bears the burden of proving himself or herself free from fault as well as demonstrating insufficient means for support. Moore v. Moore, 393 So.2d 822, 824 (La.App.2d Cir. 1981).

"Fault in this context is conduct violative of the marital duties and responsibilities, and it `must be serious and an independent contributory or proximate cause of the separation.' Pearce v. Pearce, 348 So.2d 75, 77 (La.1977)." Schexnayder v. Schexnayder, 424 So.2d 516, 518 (La. App. 5th Cir.1982).

For purposes of permanent alimony preclusion, the courts have held that fault is synonymous with the fault grounds for separation and divorce. Adams v. Adams, 389 So.2d 381 (La.1980); Jones v. Jones, 442 So.2d 817 (La.App. 4th Cir.1983). A spouse is, however, not deprived of post-divorce alimony simply because she or he is not blameless in the marital discord. Pearce v. Pearce, supra. Mutual incompatibility, as appellant correctly notes, does not constitute grounds for a fault based separation or divorce. Loyd v. Loyd, 336 So.2d 912 (La.App.2d Cir.1976); Jones, supra; Langton v. Langton, 442 So.2d 1308 (La.App.3d Cir.1983).

The trial court judge stated inter alia the following:

"I also deny permanent alimony having found as a matter of fact Janice G. Baham is not free of fault with respect to the burden of proof she is required to carry for an award of alimony. I find that the parties are both guilty of fault sufficient so as to constitute independent grounds for the separation and divorce. Mutual incompatibility prevents an award of alimony."

While we find that the trial court incorrectly stated the law as to mutual incompatibility, we also find that the misstatement is inconsequential in light of the preceeding language which clearly finds appellant's fault an independent ground for separation or divorce.

Alternatively, appellant argues that the evidence does not support a finding of fault. In this regard, it is alleged that as appellee simply denied the allegation of freedom from fault in his answer to the divorce petition without reference to specific instances, an unfair burden was placed on Mrs. Baham to counter unexpected accusations. In support thereof, appellant cites Carter v. Carter, 316 So.2d 829 (La.App. 1st Cir.1975); rehearing denied; writ refused 320 So.2d 913 (La.1975). There the court stated in reference to the wife's burden of proof:

"From its very nature this is a heavy burden to cast upon a pleader and must be imposed within reasonable limitation to avoid injustice. It calls for proof of a negative. This is always difficult and in many cases impossible, especially when the implications calling for disproof are non-specific broad generalities. Unless the wife is informed by the husband's answer to her petition for alimony by some specific allegation of fault on her part, she is put in the impossible position of disproving every conceivable fault which could bring about a separation between married persons. It is contrary to all reason that a wife be required to *1035 come to court prepared to disprove any and every possible accusation which might be levelled against her during the course of the trial." At page 830.

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456 So. 2d 1032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baham-v-baham-lactapp-1984.