Edelen v. Edelen

457 So. 2d 171
CourtLouisiana Court of Appeal
DecidedSeptember 26, 1984
Docket16473-CA
StatusPublished
Cited by14 cases

This text of 457 So. 2d 171 (Edelen v. Edelen) 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
Edelen v. Edelen, 457 So. 2d 171 (La. Ct. App. 1984).

Opinion

457 So.2d 171 (1984)

Martha Ellard Glass EDELEN, Plaintiff-Appellee,
v.
William Herbert EDELEN, III, Defendant-Appellant.

No. 16473-CA.

Court of Appeal of Louisiana, Second Circuit.

September 26, 1984.

*172 B. Woodrow Nesbitt, Jr., Shreveport, for plaintiff-appellee.

Pringle & Herzog by John R. Herzog, Shreveport, for defendant-appellant.

Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.

JASPER E. JONES, Judge.

The plaintiff wife filed suit seeking a separation based on cruel treatment, custody of the minor child of the marriage, child support and alimony pendente lite. The defendant husband reconvened seeking a separation based on abandonment and cruel treatment and joint custody of the child. After a trial on the merits the trial court rendered judgment granting plaintiff's demands. The judgment limits defendant to one three hour visit with the child per week and orders defendant not to take the child to his parent's home during the visits. Defendant appeals. We amend and affirm.

The issues raised by defendant's appeal are: (1) whether the trial judge erred in finding the wife free from fault in causing the separation; and (2) whether the child visitation privileges granted defendant are unduly restrictive.

FACTS

Plaintiff and defendant were married September 12, 1980. One child, a son age 2, was born of the marriage. Plaintiff had custody of her 2 minor daughters from a previous marriage.

The relationship between the parties began deteriorating shortly after they were married. Plaintiff left the matrimonial domicile after a physical confrontation with defendant on July 2, 1983 and has not returned. The confrontation was over a peach pie defendant brought home from a nearby restaurant. The parties give conflicting accounts of the confrontation.

*173 Plaintiff contends she was on a diet and when she refused to eat any pie defendant became enraged. She testified he grabbed her, shook and slapped her. She stated that while this was going on she told one of her daughters to call her grandfather (plaintiff's father) on the phone. When the daughter tried to make the call defendant slapped the daughter down and ripped the phone out of the wall. Plaintiff then took the children across the street to a neighbor's house where she called her father to come pick her and the children up.

Defendant testified plaintiff became upset when he brought the pie home because it was peach and not strawberry. He stated she chastised and insulted him about his choice of pie. He testified he remained calm throughout the verbal abuse. He admits to slapping plaintiff but contends he did so after she spit in his face. Defendant admits he stopped the daughter from calling her grandfather but claims that all he did was unplug the phone and stated he did not strike the girl.

PLAINTIFF'S FAULT

The party seeking a separation bears the burden of proving by a preponderance of the evidence the facts in support of his demand. Slater v. Slater, 431 So.2d 904 (La.App. 2d Cir.1983); Richard v. Richard, 340 So.2d 1104 (La.App. 3d Cir.1976). 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. Slater v. Slater, supra; Allemand v. Allemand, 415 So.2d 463 (La. App. 1st Cir.1982). It must be established that a spouse is guilty of conduct sufficient to establish an independent grounds for a separation for the spouse to be adjudicated guilty of fault. Adams v. Adams, 389 So.2d 381 (La.1980).

Defendant contends plaintiff was at fault for abandonment and cruel treatment. We will first consider abandonment.

The abandonment of the matrimonial domicile by either spouse is considered to be fault for purposes of a separation. LSA-C.C. art. 138(5). In order for a party to prevail on an allegation of abandonment it must be shown the other party withdrew from the matrimonial domicile without lawful cause and has constantly refused to return. LSA-C.C. art. 143; O'Pry v. O'Pry, 425 So.2d 986 (La.App. 5th Cir. 1983).

A lawful cause for leaving is a defense to a claim of fault based upon abandonment. Harrington v. Campbell, 413 So.2d 297 (La.App. 3d Cir.1982); Lyles v. Lyles, 126 So.2d 859 (La.App. 2d Cir. 1961); Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). A single instance of cruel treatment by the other spouse may be sufficient to constitute lawful cause for leaving. See Seymour v. Seymour, 423 So.2d 770 (La.App. 4th Cir.1982); Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976); Dejoie v. Dejoie, 224 La. 611, 70 So.2d 398 (1954). A person is not required to live in fear of receiving bodily harm. See Seymour v. Seymour, supra; Dejoie v. Dejoie, supra.

If plaintiff's testimony is accepted as true, she was justified in abandoning the matrimonial domicile in response to defendant's cruel treatment. The trial judge obviously found that plaintiff was telling the truth. Our task is to decide whether there was sufficient evidence to support such a finding.

The litigants were the only witnesses testifying to the events surrounding plaintiff's leaving the matrimonial domicile; other than the neighbor, Warren Wright, who merely confirmed that plaintiff came to his house with her children and called her father. There is no evidence directly corroborating plaintiff's version of the incident.[1] However, her testimony is corroborated by events occurring subsequent to her leaving. These events show that defendant becomes extremely upset and acts *174 irrationally and sometimes violently when he does not get his way. These events show a continuing pattern of conduct directed toward the plaintiff that supports a finding she was subjected to cruel treatment on the date she left the matrimonial domicile.

On July 3, 1983, the day after plaintiff left, she returned to the matrimonial domicile in her father's car to pick up some personal items. Defendant was there when she arrived. When plaintiff attempted to carry some things out to the car defendant demanded to know what she was removing from the house. Plaintiff testified defendant grabbed her from behind when she tried to go outside and began shaking and hitting her. Defendant stated he only seized an item she was carrying and tried to take it away from her. Plaintiff shouted for help and Wright, who was working in his garage, heard her. When Wright responded to this call for help, he saw plaintiff trying to leave the house and defendant trying to pull her back inside. Defendant had nearly pulled off plaintiff's blouse. Wright went over to try to protect plaintiff and prevent further physical confrontation between the spouses. At about this time plaintiff broke away from defendant and put the items she was carrying in the car. She then went to call the police. As plaintiff departed defendant tried to get into the car to see what plaintiff had removed from the house. Wright attempted to stop him and became engaged in a fight with the defendant.[2] Wright subdued the defendant and held him until the police arrived.

When a police officer arrived on the scene she separated Wright and defendant. Defendant was extremely upset and tried to continue the fight but the officer managed to restrain him. Defendant then wanted the officer to arrest Wright and when she refused the defendant began cursing her. The officer observed scratch marks on plaintiff's face and arms.

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457 So. 2d 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edelen-v-edelen-lactapp-1984.