Braswell v. Braswell

494 So. 2d 1333
CourtLouisiana Court of Appeal
DecidedSeptember 24, 1986
Docket18041-CA, 18042-CA
StatusPublished
Cited by5 cases

This text of 494 So. 2d 1333 (Braswell v. Braswell) 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
Braswell v. Braswell, 494 So. 2d 1333 (La. Ct. App. 1986).

Opinion

494 So.2d 1333 (1986)

Janice Dyar BRASWELL,
v.
James Byron BRASWELL.
James Byron BRASWELL,
v.
Janice Dyar BRASWELL.

No. 18041-CA, 18042-CA.

Court of Appeal of Louisiana, Second Circuit.

September 24, 1986.

*1334 Bodenheimer, Jones, Klotz & Simmons by David Klotz, Shreveport, for defendant-plaintiff-appellant, James Byron Braswell.

B. Woodrow Nesbitt, Jr., Shreveport, for plaintiff-defendant-appellee, Janice Dyar Braswell.

Before MARVIN, SEXTON and NORRIS, JJ.

SEXTON, Judge.

Mr. James Byron Braswell, Jr. appeals the judgment of the trial court rejecting his demands for a legal separation and awarding his wife a legal separation as well as alimony pendente lite and child support. For reasons expressed herein, we amend the judgment of the trial court and affirm as amended.

James Byron Braswell, Jr., appellant, and Janice Dyar Braswell, appellee, were married in Vicksburg, Mississippi, on October 1, 1955. Four children were born of this marriage, only one of whom remains a minor, namely, Susan Bernice Braswell.

The parties resided together at the matrimonial domicile in Shreveport for approximately 30 years until June 5, 1985, when the wife left the matrimonial domicile with the minor child, Susan, and moved to White Deer, Texas. Approximately one month later, on July 3, 1985, Mrs. Braswell filed *1335 suit for separation on the grounds of cruelty and habitual intemperance. In addition, she also sought alimony pendente lite, child support, sole custody of the parties' minor daughter and a preliminary injunction prohibiting alienation of the community assets by her husband. A week later, on July 10, 1985, Mr. Braswell also filed suit for a legal separation from his wife on the grounds of abandonment.

These separate lawsuits were consolidated for purposes of trial. Regarding the issue of custody of the minor child, Susan, the parties entered into a joint custody arrangement with Mrs. Braswell designated as the domiciliary parent.

The evidence introduced by the wife to prove her allegations of cruel treatment and habitual intemperance consisted primarily of her own testimony. Mrs. Braswell testified to approximately 20 incidents, beginning in 1982, in which the husband made various cruel and profane remarks directed at her and family members and displayed embarrassing actions in public. The wife stated that on a few of those occasions the husband also made physical attacks on the wife and family. Parts of this testimony were corroborated by the testimony of two of the parties' children, James Byron Braswell, III and Susan Bernice Braswell. Mrs. Braswell further testified that the majority of these alleged acts of misconduct were precipitated by Mr. Braswell's drinking.

In support of her claim of habitual intemperance, Mrs. Braswell testified that Mr. Braswell had a couple of drinks almost every night, but that he drank most heavily on Wednesdays and Saturdays when he played golf.

The appellant, Mr. Braswell, admitted at trial that he physically assaulted Mrs. Braswell on several different occasions. He also admitted to using the type of language described by Mrs. Braswell. However, Mr. Braswell testified that he does not drink significantly during the week and that he drinks between one and three drinks after he plays golf on Wednesdays and Saturdays.

After hearing all that evidence presented, the trial court determined that Mrs. Braswell was entitled to a legal separation on the grounds of habitual intemperance by her husband and, accordingly, rejected Mr. Braswell's demands for a separation from his wife on the grounds of abandonment. The court awarded appellee alimony pendente lite in the sum of $3,000 per month and child support for their minor daughter, Susan, in the sum of $1,000 per month. Additionally, Mr. Braswell was condemned to provide medical insurance for his wife and daughter, to pay all reasonable and required medical expenses not covered by insurance, to pay automobile insurance for the vehicles driven by Mrs. Braswell and Susan, and to pay the car notes of Mrs. Braswell and James Byron Braswell, III, the son.

On appeal, the appellant asserts the following assignments of error:

1. The district court erred in concluding that the wife proved by a preponderance of the evidence that she was entitled to a legal separation on the grounds of cruelty and habitual intemperance.
2. The district court erred in finding that all prior actions committed by the husband which may have constituted grounds for a separation were not condoned when the wife subsequently resumed a normal marital relationship after the commission of those acts.
3. The district court erred in finding that the evidence supported alimony pendente lite in the sum of $3,000 per month and child support in the sum of $1,000 per month.
4. The district court erred in not applying the totality of circumstances doctrine to the alimony pendente lite award.

The wife in this case alleges that the husband was guilty of habitual intemperance *1336 and cruel treatment, grounds for separation under LSA-C.C. Art. 138(3).[1]

In his opinion, the trial court judge concluded:

The evidence shows that Mr. Braswell, during the time the parties lived together, drank daily (he normally had one or two drinks). The court recognizes that it is not the quantity of alcohol, but rather the extent and habitualness of intoxication that constitutes "habitual intemperance." It was Mr. Braswell's practice to play golf on Wednesdays and Saturdays. He admitted that the bar at his club mixed rather strong drinks. The evidence clearly shows that on almost every Wednesday and Saturday Mr. Braswell drank enough to become intoxicated and the Court finds that this frequency equates to "habitual intemperance."

Mr. Braswell testified that he does not drink much during the week and that he drinks between one and three drinks when he plays golf on Wednesdays and Saturdays. This testimony was corroborated by two of the parties' children, James Byron Braswell, III, and Susan Bernice Braswell. The son testified, "... when he drank the most was usually when he had been at the golf course and that's usually on Wednesday and Saturday and other than that, on weeknights he might have a couple of drinks after work, but nothing too bad except just mostly at the golf course." The daughter testified, "The only time I could tell that [father] had been drinking was Wednesday nights. And that's of course when he would come from the golf course, that's really the only time." We therefore conclude that the trial court incorrectly determined that habitual intemperance was sufficiently established. The testimony of the two children residing at the home during the time of the events related by Mrs. Braswell is not corroborative with respect to alcohol abuse per se. Additionally, habitual intemperance is not established by proof of intoxication on two or three occasions. Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978); Creech v. Creech, 449 So.2d 1192 (La.App. 2d Cir.1984).

However, the record is replete with evidence of Mr. Braswell's unnecessary and cruel verbal beratements, his obscene language, his unprovoked arguments, his public misconduct, and his physical attacks directed at Mrs. Braswell and family members. Mr. Braswell, in fact, admitted to physically assaulting Mrs. Braswell on the several different occasions she alleged and to directing profane language toward her and other family members.

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Bluebook (online)
494 So. 2d 1333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braswell-v-braswell-lactapp-1986.