Harrington v. Campbell

413 So. 2d 297
CourtLouisiana Court of Appeal
DecidedApril 14, 1982
Docket8690
StatusPublished
Cited by24 cases

This text of 413 So. 2d 297 (Harrington v. Campbell) 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
Harrington v. Campbell, 413 So. 2d 297 (La. Ct. App. 1982).

Opinion

413 So.2d 297 (1982)

Myrtis HARRINGTON, Plaintiff-Appellant,
v.
Elson CAMPBELL, Defendant-Appellee.

No. 8690.

Court of Appeal of Louisiana, Third Circuit.

April 14, 1982.

*298 Irby Hebert, Jr., Abbeville, for plaintiff-appellant.

Carrol L. Spell, Jr., Lafayette, for defendant-appellee.

Before GUIDRY, CUTRER, STOKER, JJ.

STOKER, Judge.

Plaintiff-appellant, Myrtis Harrington, filed suit on September 18, 1980, in the Fifteenth Judicial District Court for separation from her husband, defendant-appellee Elson Campbell. The trial court found that the parties were mutually at fault in causing the separation and granted a separation based on LSA-C.C. art. 141.[1] The court also awarded alimony pendente lite to plaintiff of $150.00 per month until October 10, 1981. Plaintiff appeals this ruling. Defendant does not answer the appeal but seeks to have the trial court's judgment affirmed.

Plaintiff alleges that the trial court committed eight errors which can be summarized in two basic complaints: (1) that the trial court erred in finding that plaintiff was guilty of fault which contributed to the breakup of the marriage; and (2) that the trial court erred in awarding to plaintiff an "abusively low" award of alimony pendente lite and in fixing a termination date of the award. Plaintiff's specifications of error relative to these two areas of complaint will be discussed below.

*299 WAS PLAINTIFF "AT FAULT" IN HER SEPARATION?

LSA-C.C. art. 141 allows the granting of a separation from bed and board even though "both spouses are mutually at fault in causing the separation". See footnote 1. The fault of each party must constitute an independent ground for separation under LSA-C.C. art. 138[2] to support a separation on the basis of mutual fault. Adams v. Adams, 389 So.2d 381 (La.1980); Miller v. Miller, 398 So.2d 1162 (La.App. 2nd Cir. 1981) and Brocato v. Brocato, 369 So.2d 1083 (La.App. 1st Cir. 1979), writ denied, 371 So.2d 1341. The mutual fault of the two parties need not be equal, but the fault of each, standing alone, must be sufficient to award the other spouse a separation under LSA-C.C. art. 138. Miller v. Miller, supra, Post v. Post, 376 So.2d 1275 (La.App. 2nd Cir. 1979), and Douglas v. Douglas, 385 So.2d 402 (La.App. 1st Cir. 1980), writ refused, 386 So.2d 358.

Plaintiff contends that the trial court erred in finding her guilty of fault sufficient to award her husband a separation under LSA-C.C. art. 138 and that, therefore, the granting of a separation for mutual fault under LSA-C.C. art. 141 is erroneous. Defendant did not answer the appeal so we are precluded from considering the trial court's finding of fault as to him. Adams v. Adams, supra, Vail v. Vail, supra, Miller v. Miller, supra; and Denbo v. Denbo, 345 So.2d 1257 (La.App. 1st Cir. 1977). Defendant in his reconventional demand asserted that plaintiff was guilty of abandonment which is a ground for separation under LSA-C.C. art. 138(5). See footnote 2. However, plaintiff in her original and supplemental petitions asserted with particularity that defendant was guilty of various acts of cruel treatment which are grounds for separation under LSA-C.C. art. 138(3). See footnote 2. Plaintiff argues that defendant's cruel treatment was a defense to abandonment, and that the trial court erred (if its finding of fault as to her was based on any evidence other than that concerning her abandonment) since the defendant alleged no other ground for separation.

In divorce or separation proceedings, the trial court's findings of fact on the issue of fault will not be disturbed on appeal unless manifestly erroneous. Pearce v. Pearce, 348 So.2d 75 (La.1977); Douglas v. Douglas, supra; and Aguillard v. Aguillard, 380 So.2d 104 (La.App. 1st Cir. 1979), writ denied, 381 So.2d 1206 (La.1979). In its minute entry constituting reasons for judgment, the trial court gave none of its findings of fact on the issue of fault except for a comment concerning a cassette tape introduced into evidence by plaintiff on which plaintiff had recorded an argument between her and her husband.[3] However, plaintiff's taping of a domestic argument is not by itself sufficient grounds for separation. We must assume that the trial court found this action by plaintiff to be cruel treatment or an "outrage" under LSA-C.C. art. 138(3). Article 138(3) requires that "cruel treatment or outrages" must be "of such a nature as to render [the spouses'] living together insupportable;" however, we do not feel that this one action by plaintiff reaches that quality or severity. Therefore, we must examine the record of evidence adduced at trial to determine if plaintiff was guilty of other acts of cruel treatment which rendered defendant's living with plaintiff insupportable. In this regard, we may consider evidence of plaintiff's *300 cruel treatment introduced without objection since this expands the defendant's pleadings.

The parties in this case have had marital difficulties previously, as indicated by the fact that they were judicially separated in December of 1976, but had reconciled and had been living together since July of 1978 until this present separation. Plaintiff testified in detail of at least two beatings she received at the hands of her husband, one on January 7, 1979, and another on September 13, 1980, the day she left her husband. On both occasions, plaintiff required medical attention, and the doctors who saw her on those occasions both testified that plaintiff's injuries were consistent with her description of the beatings. Mr. and Mrs. Roundtree, who lived in a trailer rent-free on property owned by plaintiff, testified that they saw plaintiff immediately after the beating on September 13, 1980, and that her condition was consistent with her description of the incident which had just occurred.[4] Defendant denied ever hitting his wife but could offer no other reasonable explanation for her injuries. Plaintiff also testified in detail of various acts of mental cruelty committed by her husband beginning in August of 1981, including his telling her to leave their common household, and that he no longer loved her and had no desire to have sexual relations with her.

In light of the strong evidence of defendant's physical and mental cruelty towards plaintiff, we believe she was justified in leaving her husband and not guilty of abandonment, especially in light of the fact that defendant failed to show by a preponderance of the evidence that he constantly desired his wife's return, one of the elements necessary to prove abandonment. Defendant had already packed plaintiff's belongings when she returned for them two days later and made little or no effort to contact her before or after this time.

Plaintiff argues that the trial court must have based its finding that the parties were mutually at fault on the cruel treatment by defendant and the abandonment by plaintiff, and that these fault-based grounds are defenses to each other. See Favaloro v. Favaloro, 391 So.2d 966 (La.App. 4th Cir. 1980). Therefore, following plaintiff's argument, since the judgment of defendant's cruel treatment is final and cannot be disturbed by this Court, plaintiff must be without fault by definition to avoid an inconsistent judgment.

The Louisiana Supreme Court, faced with this argument in Adams v. Adams, supra,[5] stated:

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Bluebook (online)
413 So. 2d 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-campbell-lactapp-1982.