Guillory v. Guillory

626 So. 2d 826, 1993 WL 431420
CourtLouisiana Court of Appeal
DecidedOctober 27, 1993
Docket25188-CA
StatusPublished
Cited by20 cases

This text of 626 So. 2d 826 (Guillory v. Guillory) 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
Guillory v. Guillory, 626 So. 2d 826, 1993 WL 431420 (La. Ct. App. 1993).

Opinion

626 So.2d 826 (1993)

Annette Murchie GUILLORY, Plaintiff-Appellee,
v.
Calvin J. GUILLORY, Defendant-Appellant.

No. 25188-CA.

Court of Appeal of Louisiana, Second Circuit.

October 27, 1993.

*828 Blackwell, Chambliss, Hobbs & Henry by Sam O. Henry, III, for defendant-appellant.

Rankin, Yeldell, Herring & Katz by Alex W. Rankin and Phillip M. Lester, for plaintiff-appellee.

Before MARVIN, BROWN and STEWART, JJ.

MARVIN, Chief Judge.

In this divorce action the 77-year-old ex-husband appeals a judgment awarding his 68-year-old ex-wife $200 a month permanent alimony, contending that his ex-wife was not free of alimony-barring fault. Answering the appeal, the ex-wife seeks an increase in the monthly alimony award and an amendment to the judgment making the award retroactive to the date of her rule for alimony.

On this record we find no error or abuse of discretion in the trial court's factual conclusions (fault and amount of alimony).

We amend to make the award retroactive to the date of judicial demand, and as amended, we affirm the judgment.

FACTS

Annette and Calvin Guillory, ages 68 and 77 respectively at the time of trial in 1992, who had earlier married others and had grown children, married July 9, 1980. Before they became estranged, they enjoyed many social activities together, including dining and dancing.

The Guillorys last lived under the same roof in Mrs. Guillory's separately owned home on January 13, 1992, when they physically separated after she asked Mr. Guillory to move from her home in late 1991. Earlier she began sleeping in a separate bedroom. Mrs. Guillory was awarded temporary alimony *829 in April on her petition for divorce, which also demanded permanent alimony, that was filed January 27, 1992.

Mr. Guillory's rule for divorce and to terminate alimony, was filed August 6, 1992. On August 27, 1992, the court rendered the judgment of divorce, and Mrs. Guillory filed her rule for permanent alimony.

The court found the husband's claim of forced or constructive abandonment had not been proved because he had not shown that he attempted or requested to return to the matrimonial domicile. Nevertheless, the court concluded:

[T]he actions of Mrs. Guillory in asking her husband to remove himself from her home in December 1991 was a reasonably justifiable response [on] the part of Mrs. Guillory to the abusive, boorish and unpleasant conduct of Mr. Guillory, which had prompted Mrs. Guillory to believe that she had done as much as she could to keep the marriage together.

The court also found the husband's accusations of the wife's cruelty were not proved by a preponderance of the evidence, concluding that the wife was free from fault and entitled to permanent alimony.

ALIMONY-BARRING FAULT

Mr. Guillory contends here that his wife constructively abandoned him and cruelly treated him so as to be legally at fault.

CC Art. 112A(1) states in part:

When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Emphasis added.

"Fault" contemplates conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties or responsibilities. Pearce v. Pearce, 348 So.2d 75 (La.1977); Mathews v. Mathews, 614 So.2d 1287 (La.App. 2d Cir.1993); Currier v. Currier, 599 So.2d 456 (La.App. 2d Cir.1992); Taylor v. Taylor, 579 So.2d 1142 (La.App. 2d Cir.1991).

The 1990 marriage dissolution revisions which included the repeal of CC Art. 138 (grounds for separation from bed and board), renumbered, but did not alter the post-divorce alimony provisions. Mathews, Currier, and Taylor, cited supra. A spouse's obligations or marital duties and responsibilities of fidelity, support, and assistance have remained the same irrespective of the codal revisions. Currier, supra.

"Fault" for purposes of alimony preclusion continues to include the grounds enumerated in former CC Art. 138 (adultery; conviction of a felony; habitual intemperance or excesses, cruel treatment, or outrages; public defamation; abandonment; an attempt on the other's life; status as a fugitive; and intentional non-support), and is not limited to the fault grounds currently listed in CC Art. 103 (adultery or a felony conviction). See Mathews, supra; Wicker v. Wicker, 597 So.2d 1273 (La.App. 3d Cir.1992). Compare Gitschlag v. Gitschlag, 593 So.2d 1331 (La.App. 1st Cir. 1991).

A spouse seeking permanent alimony has the burden of proving that he or she is without fault. Taylor, supra; Green v. Green, 567 So.2d 139 (La.App. 2d Cir.1990). A spouse is not deprived of permanent alimony simply because he or she was not totally blameless in the marital discord. Pearce, Currier, and Taylor, cited supra; Wynn v. Wynn, 513 So.2d 489 (La.App. 2d Cir.1987). A spouse also is not deprived of alimony when his or her actions amount to a reasonable, justifiable response to the other spouse's provocative acts. Currier, Taylor, and Wynn, cited supra.

Because domestic relations issues largely turn on evaluations of witness credibility, much discretion of the trier of fact is recognized and given deference by the appellate courts. Pearce and Taylor, cited supra. Fault is a factual finding which will not be disturbed on appeal unless manifestly erroneous. Pearce, Currier, and Taylor, cited supra; Blake v. Blake, 478 So.2d 617 (La. App. 2d Cir.1985).

*830 Abandonment:

The elements necessary to prove abandonment are provided in former CC Art. 143:

1. the party has withdrawn from the common dwelling; and
2. the party left without lawful cause; and
3. the party has constantly refused to return to live with the other.
Blake, supra.

One spouse is not expected to seek reconciliation in the face of adverse conditions which manifest that the other spouse has no desire or intent to reconcile. Schirrmann v. Schirrmann, 436 So.2d 1340 (La.App. 5th Cir.1983), writs denied.

"Constructive abandonment" occurs when one spouse, without lawful cause, orders the other to leave the matrimonial domicile or prevents or bars the other from entering the domicile. Quinn v. Quinn, 412 So.2d 649 (La.App. 2d Cir.1982), writs denied; Schirrmann, supra.

Lawful cause which justifies abandonment or constructive abandonment is the equivalent to cause giving the withdrawing spouse grounds for a separation under former CC Art. 138. Quinn and Blake, cited supra. Mere friction or dissatisfaction in the relationship or incompatibility between the spouses, however intense, has been said to be not enough to constitute lawful cause. Quinn and Blake, cited supra.

The trial court found the claim of forced or constructive abandonment had not been proved because the husband did not attempt or request to return to the matrimonial domicile, further concluding any forced or constructive abandonment was a reasonable and justifiable response to Mr. Guillory's conduct.

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Bluebook (online)
626 So. 2d 826, 1993 WL 431420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-guillory-lactapp-1993.