Carroll v. Carroll

577 So. 2d 1140, 1991 WL 46816
CourtLouisiana Court of Appeal
DecidedMarch 28, 1991
DocketCA 90 1658
StatusPublished
Cited by2 cases

This text of 577 So. 2d 1140 (Carroll v. Carroll) 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
Carroll v. Carroll, 577 So. 2d 1140, 1991 WL 46816 (La. Ct. App. 1991).

Opinion

577 So.2d 1140 (1991)

Susan C. Boudreaux CARROLL
v.
Joseph Michael CARROLL.

No. CA 90 1658.

Court of Appeal of Louisiana, First Circuit.

March 28, 1991.

*1142 Darrell J. Saltamachia, Baton Rouge, for plaintiff-appellee Susan C. Boudreaux Carroll.

Tracy Pickerell, Baton Rouge, for defendant-appellant Joseph Michael Carroll.

Before EDWARDS, WATKINS and LeBLANC, JJ.

LeBLANC, Judge.

Plaintiff, Susan C. Boudreaux Carroll, filed this suit against her husband, Joseph M. Carroll, seeking a separation, alleging cruel treatment by her husband as grounds for the separation. Plaintiff also sought sole custody of the minor child born of the marriage, Andrew Corey Carroll; child support and alimony pendente lite. Defendant filed a reconventional demand seeking a separation based on plaintiff's abandonment, custody of the child, child support and alimony pendente lite.

The trial court rendered judgment in favor of Susan Boudreaux Carroll and against Joseph M. Carroll, awarding unto the former a separation "a mensa et thoro". The trial court further awarded sole care, custody and control of Andrew to plaintiff. Defendant was also ordered to pay the sum of $200.00 per month as alimony pendente lite and the sum of $250.00 per month as child support. Defendant was further ordered to maintain medical insurance on the minor child and on his wife.

Defendant appeals the trial court's judgment raising four assignments of error:

(1) The trial court erred in granting a separation in favor of Susan Carroll.
(2) The trial court erred in awarding sole care, custody and control of the minor child, Andrew Cory Carroll, to Susan Carroll.
(3) The trial court erred in awarding $250.00 per month child support.
(4) The trial court erred in awarding $200.00 per month alimony pendente lite.

SEPARATION

Joseph M. Carroll (also referred to as Mike) and Susan C. Boudreaux were married on July 30, 1988. The couple argued frequently. They both testified regarding the events of an argument that occurred on approximately August 17, 1988.

Susan testified that she did not remember what the fight was about. Susan described that she was walking in the apartment and Mike followed her and kept pushing her and cursing at her. She also stated that he destroyed some of their furniture by throwing it up against the wall or beating it on the floor. According to Susan, Mike left the apartment for about two hours and returned with $118.00 worth of liquor and a gun. Susan said he would not let her leave the apartment. At this point, Mike threatened he would kill himself if Susan left. Later, he threatened to kill Susan. Eventually, Susan talked Mike into letting her leave the apartment. She went to her parents' house and remained there for three or four days. She and Mike reconciled and she returned home, finding out shortly thereafter that she was pregnant.

Mike testified that this particular argument began while he and his wife were at her mother's house. Later that day, he and Susan returned home and the fight continued. He testified that he did not strike Susan. He stated that he did leave the residence to purchase liquor and a gun. He explained that he had sold a gun in order to purchase a wedding ring for Susan *1143 and he purchased the gun as a replacement. Mike denied threatening to kill himself or Susan.

Susan also described an incident that occurred when she was eight months pregnant. She explained that she was trying to help Mike get dressed and groomed for a military drill. She stated that he found fault with everything she did and was continually cursing at her.

Susan gave birth to a son, Andrew, on May 30, 1989. Susan stated that after Andrew was born, the relationship between her and Mike became worse. Susan described the fight that prompted her to leave the matrimonial domicile. Susan explained that she had begun to work parttime at the pawn shop where her husband was employed. She said the fight was about her working and taking Andrew with her to work. She described that Mike beat on the walls and kicked the furniture. According to Susan, when she threatened to leave, Mike violently grabbed her hair and tried to get Andrew out of her arms. She stated that he also squeezed her neck until she let go of the baby. Mike wanted Susan to leave but when she tried to leave, Mike would not let her take the baby. Susan refused to leave without the baby. Susan explained that she wanted to leave the apartment at that time with Andrew but was fearful for her safety due to the fact that Mike kept many guns in the apartment. However, she explained that, at this point, she was determined to leave with Andrew when she could do so safely. Approximately seven to ten days after this fight, Susan packed some of her and Andrew's belongings and left the matrimonial domicile. She returned to her parents' house.

Mike confirmed that he and Susan did have a fight regarding Susan's work at the pawn shop, approximately two weeks before Susan left. However, Mike denied losing his temper during this argument. He testified that he did not grab Susan's hair and he did not strangle her.

Bobbie Boudreaux, plaintiff's mother, testified regarding her knowledge about the fights that occurred between Susan and Mike. She testified that they fought a lot and that she had witnessed displays of temper by Mike. More specifically, Ms. Boudreaux explained that her daughter came to her house one day and was very upset. Susan told her mother that she and Mike had a fight, Mike had left the apartment, bought some liquor and a gun and returned, threatening to shoot both Susan and himself. According to Ms. Boudreaux, Susan left her apartment, drove to her mother's home and stayed for four days. At that time, her daughter reconciled with Mike.[1]

At the time of the filing of plaintiff's suit for separation, La.C.C. art. 138 set forth the grounds for a separation from bed and board and provided, in pertinent part, as follows:

Separation from bed and board may be claimed reciprocally for the following causes:
. . . . .
3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such *1144 ill-treatment is of such a nature as to render their living together insupportable;

The party seeking a separation bears the burden of proving by a preponderance of the evidence the facts in support of his demand. Edelen v. Edelen, 457 So.2d 171 (La.App. 2d Cir.1984). Fault is a question of fact. The trial court's finding on the issue will not be disturbed on appeal absent a finding of manifest error. Nungesser v. Nungesser, 558 So.2d 695 (La. App. 1st Cir.), writ denied, 560 So.2d 30 (La.1990). In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Pearce v. Pearce, 348 So.2d 75 (La. 1977).

In Jarman v. Jarman, 540 So.2d 444 (La.App. 1st Cir.1989), this court addressed cruel treatment as follows:

A finding of cruelty requires a dual analysis of the facts. First, the judge must decide whether or not the objective factual conduct, which is alleged to be cruel, actually occurred.

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Related

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631 So. 2d 42 (Louisiana Court of Appeal, 1994)
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626 So. 2d 826 (Louisiana Court of Appeal, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
577 So. 2d 1140, 1991 WL 46816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-v-carroll-lactapp-1991.