Helm v. Walker

477 So. 2d 842, 1985 La. App. LEXIS 9971
CourtLouisiana Court of Appeal
DecidedOctober 10, 1985
DocketNo. 85-CA-244
StatusPublished
Cited by3 cases

This text of 477 So. 2d 842 (Helm v. Walker) 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
Helm v. Walker, 477 So. 2d 842, 1985 La. App. LEXIS 9971 (La. Ct. App. 1985).

Opinion

CHEHARDY, Judge.

Theresa Helm Walker appeals from a judgment decreeing that both she and her former husband, William E. Walker, Jr., were at fault in the termination of their marriage. She asserts the trial court abused its discretion in finding her at fault.

On January 14, 1983 Mrs. Walker filed a petition for separation, alleging cruel treatment by her husband, including but not limited to physical violence and excessive drinking. Mr. Walker answered by general denial and reconvened for separation. He alleged cruel treatment by Mrs. Walker, consisting of physical abuse, excessive drinking and verbal harassment.

On December 6, 1983 judgment of separation was granted in favor of Mr. Walker on the ground of living separate and apart for a period of six months. No determina[843]*843tion of fault was made at that time. Alimony pendente lite was continued pending a fault determination. (We note the record contains a second judgment of separation, rendered on December 9, 1983 and signed by a different judge, also decreeing a judgment of separation on the ground of living separate and apart for a period of six months. This anomaly does not affect the issues before us.)

On February 14, 1984 Mr. Walker filed a petition for divorce on the ground of living separate and apart for more than one year without reconciliation. Mrs. Walker answered by general denial and reconvened, asserting she was without fault and requesting permanent alimony. In response Mr. Walker alleged mental cruelty by Mrs. Walker, denying her right to permanent alimony.

On June 15, 1984 the issue of fault was tried and argued; the trial judge ruled from the bench that both parties were at fault. He also granted a divorce on the ground of living separate and apart for more than one year. The judgment was signed on June 25,1984. Mrs. Walker filed a motion for new trial on the fault issue, which was denied on September 25, 1984. In written reasons for judgment the trial judge stated,

“The wife alleges that the evidence of her fault is uncorroborated resulting in a failure of the husband to establish his case by a preponderance of the evidence. * * * However, the uncorroborated evidence was believable and persuasive. Many of the facts to be proved arose out of the private spousal relationship and were not readily subject to corroboration. The wife and her witnesses were present at trial. They offered no competitive refutation of the uncorroborated testimony limiting remarks to exposing his fault rather than defending her actions. Under these circumstances, such uncorroborated testimony constitutes a preponderance sufficient to support a judgment of divorce and a finding of mutual fault.
(Citations omitted.)

Mrs. Walker appealed the finding of fault against her; Mr. Walker neither appealed nor answered the appeal, therefore the judgment is fixed as to his fault. In her brief to this court, Mrs. Walker asserts the trial judge erred in believing Mr. Walker’s uncorroborated testimony concerning various aspects of their relationship and specific incidents upon which the allegations of fault were based. In particular she refers to several photographs depicting severe bruises and minor lacerations on her forearms she received in a fight with Mr. Walker two days before she filed her suit for separation.

According to the testimony, the parties married each other in January 1980 after prior marriages of many years’ duration. Mr. Walker’s first wife had died of cancer a few years earlier; apparently Mrs. Walker’s first husband had also died. Mrs. Walker has adult children from her first marriage.

The primary problems seem to have begun in August 1980, some eight months after the parties were married. Mr. Walker was abruptly terminated by his employer of 37 years, a steamship company. He admitted he “went into shock” and became severely depressed. Mrs. Walker testified he became moody and withdrawn, used obscene language constantly and called her vulgar names. Mr. Walker conceded he used obscenities frequently for a few months during the worst stage of his depression, but asserted he discontinued that behavior after about four months, once he found another job and his self-confidence returned.

He stated he called Mrs. Walker names only when extremely provoked by her nagging. He asserted that she would go into tirades in which she accused him of being an alcoholic, of making his first wife an alcoholic and “killing his wife” through alcoholism, and disparaged his mother.

Mrs. Walker testified that Mr. Walker drank excessively, one beer after another, but admitted that he rarely appeared intoxicated. Her son and daughter each testified that Mr. Walker drank a great deal of [844]*844beer in their presence; the daughter said he “had a beer in his hand” most of the time. She also confirmed her mother’s testimony relative to his constant use of obscene language. Neither she nor her brother testified to any specific incident of drunken behavior by Mr. Walker. Several other witnesses testified that Mr. Walker was a “social drinker” but that they had never seen him drunk.

One of Mrs. Walker’s major complaints against Mr. Walker was his friendship with a Mrs. Martin. She did not allege any illicit relationship but complained that he frequently went to dinner with Mrs. Martin or spent the evening at her home, without inviting Mrs. Walker along. Mrs. Walker admitted she and Mrs. Martin candidly disliked each other and stated that eventually she gave Mr. Walker an ultimatum, ordering him to choose between her and Mrs. Martin.

Mrs. Walker complained in particular of an incident in the latter part of 1982, when Mr. Walker went to Covington with Mrs. Martin and another lady and was gone until late that night. Mrs. Walker was highly affronted because she was not invited to go. That night, after telephoning in search of Mr. Walker and reaching him at Mrs. Martin’s home, she complained to Mrs. Martin of her unhappiness at Mr. Walker’s friendship with her. According to Mr. Walker, Mrs. Walker actually insulted Mrs. Martin to the extent that Mrs. Walker went personally to Mrs. Martin’s home the next day to apologize.

Mr. Walker testified that Mrs. Martin is a long-time family friend; he has known her for 40 years and she is old enough to be his mother. He admitted that during the last six months of his marriage to Mrs. Walker he had been staying out late at night without explanation to Mrs. Walker. He said it was because every time he came home he “encountered her daughter and her and the bitching would go on and on and on.”

The daughter, son and the son’s wife all testified that Mr. and Mrs. Walker seldom went places together, such as social or business functions, and often did not spend holidays together. According to Mrs. Walker and her children, Mr. Walker never gave her presents on gift-giving occasions and often seemed to deliberately “pick a fight” in advance of the occasion.

Mrs. Walker related an incident on which she prepared a Christmas dinner for him but he refused to come home to eat it. Mr.

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Bluebook (online)
477 So. 2d 842, 1985 La. App. LEXIS 9971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helm-v-walker-lactapp-1985.