Franks v. Franks

107 So. 2d 415, 236 La. 122, 1958 La. LEXIS 1294

• Court: Supreme Court of Louisiana
• Decided: December 15, 1958
• Docket: 44009
• Status: Published

Opinions

PONDER, Justice.

The plaintiff was granted a divorce on the ground of having lived separate and apart from the defendant for two years, and the defendant, wife, was granted alimony in the amount of $33 per week and awarded $100 for attorney’s fees. The plaintiff has appealed from the judgment only insofar as it awarded alimony and attorney’s fees. The defendant answered the appeal asking for an increase in attorney’s fees.

The appeal presents three questions: (1) whether or not the wife was at fault; (2) whether the award of alimony should be •reduced; and (3) whether attorney’s fees were properly allowed.

The testimony on the issue of who was at fault is that of the parties to the suit and their son.

The appellant contends that the cause of the separation between him and his wife was accusations made on the part of the wife that he was unfaithful to her. He testified that she had made these accusations without ground over a period of some forty years, the entire duration of their marriage. He also contends that he was forced to sell his house because of the wife’s insistence and to divide the proceeds derived therefrom.

It appears from the testimony in the record that the cause of the separation was as much the fault of the husband as it was the fault of the wife. The son’s testimony is to the .effect that his father and mother were prone to quarrel over trivialities and that neither party was entirely to blame for the disagreements. The testimony regarding the sale of the house and the division of the proceeds indicates that it was a mutual agreement on the part of both parties.

Regarding the question of fault in suits of this nature, this Court in the case of Felger v. Doty, 217 La. 365, 368, 46 So.2d 300, 301, had this to say:

“Thus, when the bonds of matrimony are dissolved by a judgment of divorce rendered on the ground that the parties have been living separate and apart for the statutory period, the wife will be denied alimony if she has been at fault. But the word ‘fault’, as employed in the quoted codal provision, does not mean merely the wife’s engaging in quarrels more or less of a trivial, nature; for, as said in Armstrong v. Whalen, 161 La. 613, 109 So. 140, such experiences,' which momentarily jar and disturb the peace and harmony of matrimony, are not unusual or exceptional as between' a husband and his wife. Rather, the word ‘fault’ as so used contemplates conduct or substantial acts of commission or omission on the part of the wife, violative of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart, the ground for the divorce.”

The appellant contends that the award of alimony is excessive and should be reduced because the appellee is living with her son and caring for his children, whose mother was killed in an automobile accident. The appellee is fifty-seven years old and is without funds since her part of the money derived from the sale of the house has already been expended for her support. The appellant earns $468 per month take home pay.

The fact that the appellee is living with her son and caring for his children is not to be considered in fixing alimony to be awarded. Lester v. Lester, 160 La. 708, 107 So. 499. We cannot say that the award is excessive.

Attorney’s fees were improperly awarded in this case. It is conceded by both parties that at the time the divorce suit was filed that there was no community property. Such being the case, the appellant cannot be condemned to pay attorney’s fees to the appellee. Tanner v. Tanner, on rehearing, 229 La. 399, 86 So.2d 80.

For the reasons assigned, the judgment of the lower court is amended so as to reject the award for attorney’s fees and, as thus amended, it is affirmed at appellant’s cost.

TATE, J., concurs in part and dissents from the refusal to award attorney’s fees. SIMON, J., recused.