Green v. Green

567 So. 2d 139, 1990 WL 122971
CourtLouisiana Court of Appeal
DecidedAugust 22, 1990
Docket21629-CA
StatusPublished
Cited by20 cases

This text of 567 So. 2d 139 (Green v. Green) 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
Green v. Green, 567 So. 2d 139, 1990 WL 122971 (La. Ct. App. 1990).

Opinion

567 So.2d 139 (1990)

Kevin R. GREEN, Plaintiff-Appellee,
v.
Barbara Pixley GREEN, Defendant-Appellant.

No. 21629-CA.

Court of Appeal of Louisiana, Second Circuit.

August 22, 1990.

*141 Goff, Caskey, Davis & Fallin by H. Russell Davis, Arcadia, for defendant-appellant.

Kevin R. Green, Homer, in pro per.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

*142 LINDSAY, Judge.

Barbara Pixley Green appeals from a trial court judgment which denied her claim for permanent alimony, but granted a divorce in her favor from her husband, Kevin R. Green, on grounds of adultery. In denying Mrs. Green's claim for permanent alimony, the trial court found that the parties were mutually at fault in the initial separation. Mrs. Green appeals from the judgment, and seeks monthly alimony payments of $1,400.

FACTS

The parties were married on November 15, 1984. They physically separated on August 31, 1988. On September 30, 1988, Mr. Green filed a petition for separation. In response to an exception of no cause of action filed by Mrs. Green, Mr. Green filed an amended petition on November 17, 1988, alleging mental cruelty and abandonment as grounds for separation.

On December 9, 1988, Mrs. Green filed an answer and reconventional demand, in which she alleged physical and mental cruelty by Mr. Green. On December 15, 1988, Mr. Green filed an answer to the reconventional demand. On February 13, 1989, Mrs. Green filed an amended and supplemental reconventional demand in which she alleged adultery by Mr. Green on three separate occasions in January of 1989. She sought an immediate divorce on these grounds. In an answer filed March 23, 1989, Mr. Green admitted the episodes of adultery.

Trial on the merits was held on March 29, 1989, and May 9, 1989. Mr. Green testified that his wife groundlessly accused him of adultery prior to their separation and that she was guilty of several episodes of mental cruelty. He stated that she engaged in verbal disputes with him at their family corporation, K.R. Green Designer/Builders, Inc., that she constantly "cut him down" in the presence of their employees, and that she asked one employee (Jerry Green—no relation) about the alleged infidelity. He also testified that she had deliberately made efforts to sabotage their business by refusing to cooperate in getting bonding for their commercial contracting business and by refusing to write paychecks and pay bills. He further stated that she contradicted his orders to their employees. Mr. Green accused his wife of making anonymous nuisance calls to him. He recounted an episode in which she parked her car behind his at a Sonic Drive-In and loudly accused him of being an adulterer. Mr. Green further testified that his wife refused to go on trips with him but would subsequently accuse him of having committed adultery when he went on the trips without her. He denied trying to force Mrs. Green to leave the matrimonial domicile during the summer of 1988. He also denied that he had ever struck Mrs. Green.

During the trial, testimony was produced by private investigators demonstrating several incidents of adultery in January of 1989 involving Mr. Green and Kathy Ellis Compton. Mr. Green conceded that Kathy and her three-year-old child were living with him. However, Mr. Green insisted that, prior to his physical separation from Mrs. Green, he and Kathy were platonic friends. He testified that a romantic relationship did not develop between them until late November of 1988.

Mrs. Green testified that there were no serious problems in the marriage until June of 1988. However, at the end of that month, she first became aware of suspicious activities on the part of her husband. She testified that on many occasions her husband stayed out till the early hours of the morning and became angry when she questioned him about his activities upon his return. On occasion he would shower and then leave on his bicycle, returning late at night without the appearance of having "worked out" and refusing to properly explain his long absences. She testified that she became suspicious that he was involved with Kathy, a family friend, in early July, 1988. She testified that Mr. Green went on several trips to Arkansas in the month of July. Upon his return late one Sunday after one of these trips, she drove to Kathy's house and observed Kathy unloading a car. Mrs. Green took this as confirmation *143 that the two had been on the trip to Arkansas together. Additionally, upon his return from one of his trips, Mr. Green told her that he wanted her to move out of the matrimonial domicile. She testified that she refused to leave and asked him to undergo marriage counseling. He refused.

Mrs. Green testified that she suffers from agoraphobia and panic attacks. As a consequence, she is unable to travel. She testified that this condition and her inability to travel were known to her husband when they married. She also stated that her medical problems make it impossible for her to work outside the home. (Her medical diagnosis was corroborated by David C. Strain, a psychiatric social worker who had been treating Mrs. Green since August, 1988.) She denied having made nuisance calls to Mr. Green or Kathy's family. On the contrary, she testified that she had received anonymous nuisance calls herself. She denied making a scene at the Sonic Drive-In, but testified that she had confronted her husband there and might have raised her voice. She further testified as to several episodes when her husband pushed her to the ground or against a wall.

Mrs. Green also presented the testimony of Wayne Tanner and Jimmy McDonald, who testified that in August, 1988, they had seen Mr. Green and an unidentified woman driving together in a pickup truck in Arcadia. Mr. McDonald testified that his wife, a close friend of Mrs. Green, had recounted the episode to Mrs. Green, who then confronted Mr. Green.

On rebuttal, Mr. Green denied having been in the pickup truck with another woman. He also denied going to Arkansas on several of the weekends asserted by Mrs. Green.

On May 15, 1989, the trial court issued reasons for judgment. It granted the divorce on grounds of adultery. However, the trial court denied permanent alimony to Mrs. Green, finding that each party was partially at fault in the original separation. A judgment in conformity with this opinion was signed on June 13, 1989.

On June 20, 1989, Mrs. Green filed a motion for new trial on the issue of alimony. She alleged that newly discovered evidence demonstrated that Mr. Green had lied when he testified that he had not been in Arkansas on July 30, 1988. An affidavit by Mrs. Green asserted that she had discovered a telephone bill which verified her testimony that her husband had called her from Arkansas on the date in question. The phone bill purported to show a credit card call to their home from Mt. Ida, Arkansas. She asserted that only she and her husband had access to the calling cards and that no unauthorized calls were made before or after the July 30th call. On July 11, 1989, the trial court denied Mrs. Green's motion for new trial.

This appeal follows. Mrs. Green asserts that the trial court erred in finding that she was guilty of legal fault sufficient to preclude her from receiving permanent alimony.

ENTITLEMENT TO PERMANENT ALIMONY

Mrs. Green asserts that the trial court erred in finding that she was guilty of legal fault which would render her ineligible to receive permanent alimony under LSA-C.C. Art. 160.

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Bluebook (online)
567 So. 2d 139, 1990 WL 122971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-green-lactapp-1990.