Kuchta v. Yarbrough

296 So. 2d 326, 1974 La. App. LEXIS 3616
CourtLouisiana Court of Appeal
DecidedJune 6, 1974
DocketNo. 6240
StatusPublished
Cited by3 cases

This text of 296 So. 2d 326 (Kuchta v. Yarbrough) 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
Kuchta v. Yarbrough, 296 So. 2d 326, 1974 La. App. LEXIS 3616 (La. Ct. App. 1974).

Opinion

STOULIG, Judge.

Defendant, Mrs. Vilma Yarbrough Kuchta, has appealed two judgments which (1) awarded her husband, John Kuchta, a separation a mensa et thoro on the ground of abandonment and rejected her reconven-tional demand for separation based on cruel treatment; and (2) reduced her monthly award of alimony pendente lite from $1,000 to $500.

We first consider appellant’s contention that the record does not support a judgment in plaintiff’s favor. What constitutes an abandonment is defined by LSA-C.C. art. 143:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconven-[328]*328tional demand in any suit for separation from bed and board.”

Under LSA-C.C. art. 145, abandonment must be proven with the same preponderance of evidence as any other fact in a civil suit. Thus one alleging- abandonment must prove that the other spouse left their common dwelling without lawful cause and by her actions or declarations does not intend to return and resume marital relations. See Maynor v. Maynor, 234 So.2d 426 (La.App. 1st Cir. 1970).

This court stated in Palama v. Palama, 277 So.2d 468 (La.App.1973), that a voluntary separation approved by both spouses does not constitute abandonment, for the requisites of C.C. art. 143 are only met when the leaving is voluntary and unjustified by one spouse with the intent to terminate the marriage, which actions are opposed by the other. This article further contemplates the complaining spouse is willing to accept the return of the other marital partner to the family dwelling for the resumption of normal marital relations. Sciortino v. Sciortino, 188 So.2d 224 (La.App. 4th Cir. 1966).

In this case the evidence fails to establish plaintiff is entitled to a judgment of separation from bed and board based on abandonment. His testimony and his expeditious filing of this lawsuit amply demonstrate his unwillingness to continue the marital relationship with Mrs. Kuchta. She moved from the matrimonial domicile on October 25, 1972 and the following morning at 9 a. m. his petition for separation based on the ground of abandonment was filed. If we accept his statement he had no knowledge his wife was leaving before her departure, we find his rapid recourse to judicial proceedings remarkable.

It is apparent his separation from his wife was not only voluntary but welcome. To illustrate we cite an excerpt of plaintiffs testimony:

“Q And since she has left, have you ever asked her to return ?
A No.
Q Now, if she volunteered to come back, would you let her come back ?
MR. FITZMAURICE:
I object, your Honor. This is immaterial.
THE WITNESS:
Not no, but ‘Hell No!’ ”

We next determine whether the wife’s allegation of cruel treatment has merit. Both litigants and their children testified the marriage was, at best, an armed truce for more than ten years before Mrs. Kuch-ta left. Plaintiff spent very little time at home, shared no social activities with his wife and barely spoke to her. During this period, plaintiff and his wife discontinued sex relations, she occupying the marital bedroom, while he slept on the sofa.

According to Mrs. Kuchta, the discord began when her husband told her he loved a Miss Pat Crowley. Plaintiff claims she is a business associate and denied making this statement. In fact he claimed his association with Miss Crowley was limited to business. Miss Crowley’s testimony established she and plaintiff went on fishing trips on the weekend, always accompanied by one or more of the Kuchta children.

It is apparent plaintiff preferred Miss Crowley’s company to that of his wife on weekends which, if nothing else, was a rejection that subjected defendant to hurt, embarrassment and humiliation. Plaintiff admitted he had not taken his wife out in the last five years.

Plaintiff’s inconsideration of his wife is evidenced by the manner in which he moved the matrimonial domicile from Har-ahan to Belle Chasse. Although he purchased a home in Belle Chasse on August 30, 1972 without consulting his wife, he did not even advise her of this fact until October 5, 1972, two days before he planned to move into it. She testified her neighbor [329]*329learned she was going to move before she knew. The night before they left, plaintiff told his wife she could move in with them but only on his terms. He then took possession of their joint bankbooks, > checkbook and the payroll check in her handbag. To add to the indignity to which defendant was subjected, plaintiff in effect placed his 19-year-old daughter in charge of their Belle Chasse household, while her mother was still residing there. Mr. Kuchta did not dispute or contradict these statements.

Plaintiff’s attitude toward his wife is one of indifference, disdain, and outright hostility of such a magnitude that it is apparent the prospect of reestablishing a rapport sufficient to return to a harmonious marital relationship is neither encouraging nor favorable. His actions fit what has been described by the Supreme Court as sufficient grounds for separation based on cruel treatment in ■ Krauss v. Krauss, 163 La. 218, 111 So. 683 (1927). We quote the language applicable:

“The courts will look, not so much to the originating cause of the cruel treatment, but to the nature and character of the treatment itself in determining the question as to whether it. amounts to such cruelty as to warrant a separation.
******
In Corpus Juris, vol. 19, p. 49, it is stated:
‘It was formerly thought that actual bodily harm, or apprehension thereof, must be shown to authorize granting a divorce on the ground of cruelty, and this doctrine seems still to prevail in a few jurisdictions; but this view has been generally repudiated and the modern doctrine is that any unwarranted conduct by either spouse which causes the other mental suffering of sufficient degree constitutes such cruelty as will authorize a divorce.’
And where the conduct of' a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony, a divorce may be granted on the ground of cruelty.
Our own court, in Olberding v. Gohres, 107 La. 715, 717, 31 So. 1028, 1029, said:
‘A husband may be guilty of outrages towards his wife of character such as to render their living together insupportable, without raising his hands against her.
‘His conduct may be the very refinement of cruelty, without either force or blows.’

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Related

Eppling v. Eppling
537 So. 2d 814 (Louisiana Court of Appeal, 1989)
Chamblee v. Chamblee
340 So. 2d 378 (Louisiana Court of Appeal, 1976)
Kuchta v. Yarbrough
299 So. 2d 801 (Supreme Court of Louisiana, 1974)

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296 So. 2d 326, 1974 La. App. LEXIS 3616, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuchta-v-yarbrough-lactapp-1974.