Bowes v. Bowes

798 So. 2d 996, 2001 La. App. LEXIS 2369, 2001 WL 1264245
CourtLouisiana Court of Appeal
DecidedAugust 15, 2001
DocketNo. 2000-CA-1062
StatusPublished
Cited by3 cases

This text of 798 So. 2d 996 (Bowes v. Bowes) 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
Bowes v. Bowes, 798 So. 2d 996, 2001 La. App. LEXIS 2369, 2001 WL 1264245 (La. Ct. App. 2001).

Opinions

| JONES, Judge.

Defendant/Appellant, Thomas Bowes, appeals the judgment of the district court, which found that the Plaintiff/Appellee, Kay Bowes, was free from fault in the dissolution of their marriage. The district court also found that Ms. Bowes was in necessitous circumstances. Accordingly, the district court awarded her permanent alimony in the amount of $2,500 per month in light of both- parties’ incomes. Following a review of the record, we hereby affirm the judgment of the district court.

FACTS

On May 26, 1998, the Appellee Kay Bowes, filed a Petition for Divorce and a Judicial Partition of Community Property against her husband, Thomas Bowes, who was the majority owner of Five Star Market, parent company for Hotel De L’Eau Vive, EIT Limited and Benjamin Harrison, LLC. In her petition, Ms. Bowes alleged that she was entitled to a divorce from the defendant because the defendant was engaged in an extra-marital affair, and that he had physically and verbally abused her during the course of their marriage. Ms. Bowes also requested that she be awarded temporary and permanent alimony from Mr. Bowes considering that she did not have sufficient income for her support and | ^maintenance. Additionally, Ms. Bowes requested that the district court prohibit Mr. Bowes from alienating, encumbering dr disposing of community property prior to a judicial partition of them community property.

The parties were subsequently divorced on February 18, 1999. However, on July 6, 1999, the district court held a hearing on the issue of post-divorce or permanent alimony. Following the hearing, the district court found Ms. Bowes’ testimony to be more credible and awarded her permanent alimony in the amount of $2,500 per month. It is from this judgment that Mr. Bowes filed the instant appeal.

FREEDOM FROM FAULT

In his first assignment of error, Mr. Bowes argues that the district court erred in finding Ms. Bowes free firom fault in the dissolution of the marriage. He argues that he asked Ms. Bowes for a divorce because she consistently confronted him and accused him of having extra-marital affairs with other women while they were in the presence of his co-workers, associates and guests at his place of employment. He also argues that Ms. Bowes did not have any evidence to support her beliefs when she confronted him.1 Mr. Bowes also contends that Ms. Bowes would publicly embarrass, belittle, and insult him by using derogatory language at his place of employment. He further argues that the statements and comments were unprovoked and were done merely to undermine his authority as manager of Hotel De L’Eau Vive.

Moreover, Mr. Bowes argues that Ms. Bowes kept their house in a deplorable [999]*999condition by caring for over twelve cats, which left feces and a horrible |3odor on the second floor of the house. Despite his complaints, Mr. Bowes argues that she refused to get rid of the cats. In light of Ms. Bowes behavior, Mr. Bowes contends that this Court should reverse the award of permanent alimony since Ms. Bowes’ actions showed that she was not free from fault in the dissolution of their marriage.

In rebuttal, Ms. Bowes argues that her thirteen-year marriage to Mr. Bowes began to deteriorate when Mr. Bowes informed her that he could no longer live with her anymore. Ms. Bowes also contends that several days after asking for a divorce, her husband gave her ten (10) days to vacate the house. Despite her consistent pleading and begging, Ms. Bowes argues that Mr. Bowes refused to reconsider the divorce. In fact, she argues that Mr. Bowes alluded to having discussed the matter with an attorney before he asked her to leave the house. Although she suspected that her husband was having an affair before the separation, Ms. Bowes argues that she did not openly degrade, belittle or harass Mr. Bowes about having an affair at his place of employment. Ms. Bowes also contends that she did not openly discuss these matters in public because she viewed the circumstances surrounding their marriage as being private and of no concern to anyone.

However, Ms. Bowes does argue that Mr. Bowes was physically and verbally abusive to her throughout the marriage. In fact, she argues that on one occasion Mr. Bowes struck her across her face with a watering wand that she was using to water her flowers. Therefore, Ms. Bowes argues that prior to the time that she was asked to leave the house she was free from fault in the dissolution of marriage. We agree.

As it relates to spousal support, LSA C.C. art. Ill provides:

|4In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles.

(Emphasis added). To constitute “legal fault” which would preclude permanent alimony at divorce, the misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation; these acts are synonymous with the fault grounds that previously entitled a spouse to a separation of divorce. Mayes v. Mayes, 98-2228 (La.App. 1 Cir. 11/5/99), 743 So.2d 1257. (Emphasis added). A spouse is not deprived of permanent alimony because he or she was not totally blameless in the marital discord; further, permanent alimony will not be denied to a party if their actions were considered reasonable or a justifiable response to the other spouse’s provocative acts. Goodnight v. Goodnight, 98-1892 (La.App. 3 Cir. 5/5/99), 735 So.2d 809.

In Goodnight, the wife left the matrimonial domicile and filed for divorce after learning of her husband’s extra-marital affair. Following a hearing on post-divorce alimony, the district court found that the wife was free from fault in the dissolution of the marriage based on credibility. Accordingly, the district court awarded the wife monthly alimony in the amount of $750. In affirming the judgment, the reviewing court found that the cause of the marital discord was the husband’s unfaithfulness. Our brethren at the Third Circuit also opined that a spouse who becomes quarrelsome and hostile after learning of [1000]*1000the other spouse’s infidelity should not denied permanent alimony. In fact, the Third Circuit stated that “[t]he suspicion of adultery causes the break-up and not the reaction.” Goodnight, 735 So.2d at 813.

| [¡Likewise, in Wagner v. Wagner, 96-1420 (La.App. 4 Cir. 12/18/96), 686 So.2d 946, this Court found that the wife was free from fault even though the husband testified that the wife (1) denied him sex over an extended period of time; (2) was a poor housekeeper; (3) had intentionally introduced spicy condiments into his food knowing that the husband was suffering from an ulcer; and (4) that the wife had not contributed to the family finances. Despite the husband’s allegations, we concluded that it was the husband’s drinking problems and ill temper, which contributed to the break-up of the marriage.

In the case sub judice, the record indicates that Mr. Bowes was physically abusive and emotionally insensitive to Ms. Bowes by asking her to leave the home even though he knew that she worked for meager wages at the hotel. The record also indicates that Ms. Bowes suspected that Mr.

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Bluebook (online)
798 So. 2d 996, 2001 La. App. LEXIS 2369, 2001 WL 1264245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bowes-v-bowes-lactapp-2001.