Mathews v. Mathews

614 So. 2d 1287, 1993 WL 45059
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1993
Docket24,401-CA
StatusPublished
Cited by12 cases

This text of 614 So. 2d 1287 (Mathews v. Mathews) 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
Mathews v. Mathews, 614 So. 2d 1287, 1993 WL 45059 (La. Ct. App. 1993).

Opinion

614 So.2d 1287 (1993)

Stephanie Ann Nolan MATHEWS, Plaintiff-Appellee,
v.
Richard Allen MATHEWS, Defendant-Appellant.

No. 24,401-CA.

Court of Appeal of Louisiana, Second Circuit.

February 24, 1993.

*1288 Campbell, Campbell & Johnson by John C. Campbell, Minden, for defendant-appellant.

Bodenheimer, Jones, Klotz & Simmons by James P. Bodenheimer, Shreveport, for plaintiff-appellee.

Before LINDSAY, HIGHTOWER and STEWART, JJ.

STEWART, Judge.

Defendant, Richard Allen Mathews, appeals from a judgment awarding plaintiff, Stephanie Ann Mathews, $550 per month in permanent alimony.

On appeal, Mr. Mathews contends that the trial court erred in holding that adultery or conviction of a felony are the only "faults" which bar permanent alimony. Mr. Mathews argues that Mrs. Mathews abandoned the marital domicile and is thus at fault in the termination of the marriage *1289 so as to be precluded from receiving permanent alimony. We reverse and remand.

FACTS

Stephanie and Richard Mathews were married in June 1990 and established their matrimonial domicile in Minden, Louisiana. On October 10, 1990, one child was born to the marriage. Mr. and Mrs. Mathews physically separated in early March 1991 because of marital discord. On March 20, 1991, Mrs. Mathews filed a petition for divorce pursuant to LSA-C.C. Art. 102. In her petition, she sought a divorce, child support, and alimony pendente lite.

On July 15, 1991, the parties were awarded joint custody of the minor child with Mrs. Mathews as the domiciliary parent. Mr. Mathews was granted visitation rights. Mr. Mathews was ordered to pay $440 per month in child support and to continue to provide health insurance for the parties' minor child. Mr. Mathews was also ordered to pay $300 per month in alimony pendente lite to Mrs. Mathews.

In March 1992, Mrs. Mathews was granted a divorce. The parties were also ordered to continue joint custody arrangements with Mrs. Mathews as domiciliary parent. Mr. Mathews was ordered to continue to pay $400 per month in child support and to continue to maintain major medical health insurance on the minor child. The alimony pendente lite was ordered to continue through the end of March 1992. Mrs. Mathews was awarded $550 per month in permanent alimony. Mr. Mathews appeals the award of permanent alimony.

On appeal, Mr. Mathews contends that the trial court erred in holding that adultery or conviction of a felony are the only "faults" which bar permanent alimony. We agree.

FAULT AS A BAR TO PERMANENT ALIMONY

We addressed this issue to a limited extent in Currier v. Currier, 599 So.2d 456 (La.App.2d Cir.1992). In Currier, this court observed that the 1990 marriage dissolution revisions merely renumbered, and did not alter the post-divorce alimony provisions. In addition, we expressed a view that the general concept of "fault" with respect to an award of alimony continues to embrace conduct or substantial acts of commission or omission by a spouse violative of his or her marital duties. We noted that the Supreme Court in Pearce v. Pearce, 348 So.2d 75 (La.1977) specifically held that to constitute fault, a wife's misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation. Given that such "marital duties and responsibilities" of which the Supreme Court speaks, emanate from LSA-C.C. Art. 98, we concluded that the legislative revision and renumbering of the marriage dissolution articles did not represent a change in the general alimony-fault scheme of then LSA-C.C. Art. 160.

However, because of the particular factual findings of the trial court in Currier, our holding was not predicated on the existence vel non of "phantom" Art. 138 fault grounds after the 1990 revisions. We held that, under any of the broad or limited definitions of fault, the facts found by the trial court in Currier, did not constitute alimony barring fault.

Concerning the issue of the continued viability of prior LSA-C.C. Art. 138 fault grounds for purposes of alimony preclusion after 1990, we are mindful of varying views among the circuits. The Fifth Circuit has expressed the view in Hornsby v. Hornsby, 592 So.2d 508 (La.App. 5th Cir. 1991) that "fault" for purposes of alimony preclusion, continues to include the grounds enumerated in the former Art. 138. Likewise, the Third Circuit, in Wicker v. Wicker, 597 So.2d 1273 (La.App. 3d Cir. 1992) has indicated that fault which would preclude alimony remains the type found in former Art. 138.

A contrary view regarding "phantom" Art. 138 has been expressed by our brethren of the First Circuit. See Gitschlag v. Gitschlag, 593 So.2d 1331 (La.App. 1st Cir. 1991), especially n. 4 at 1335. The court noted in dictum that with the legislative abrogation of former C.C. Art. 138's doctrine *1290 of separation from bed and board, the grounds for fault listed in that article also may not obtain after that article's abrogation.

Professor Christopher Blakesley, J.Y. Sanders Professor of Law, Louisiana State University Law Center postulates that, until the issue of what is considered fault today after the codal revision has been decided definitively, we need to consider the former grounds for barring alimony. Professor Blakesley has analyzed all of the appellate decisions which have addressed this question and opines:

It is not necessarily true, however, that a legislature, or this legislature, has decided to retain the old scheme, just because they did not reach the issue. They clearly abrogated article 138, which had clearly been held to be (along with 139) the only bars to entitlement to alimony. When they are gone, it is just as appropriate to argue that the legislature intended to eliminate them as bars to alimony.

See C.L. Blakesley, Louisiana Family Law, Part IV, Chapter 15, "Alimony and Claims for Contributions to Education and Training," pp. 29-32, (Butterworths, 1993 at press).

The aforementioned jurisprudential impasse regarding the status of "phantom" Art. 138 fault grounds is ripe for resolution by legislative action. However, until that occurs, we continue to hold the view that the legislative amendments to the marriage dissolution codal articles did not constitute a legislative intent to abrogate, for purposes of alimony preclusion, all faults other than adultery and felony imprisonment. To the extent that a spouse can prove fault of the quality and magnitude enunciated in Pearce v. Pearce, supra, with its implicit references to Art. 98, an alimony seeking spouse may be barred from obtaining alimony notwithstanding the abrogation of LSA-C.C. Art. 138. A contrary conclusion would lead to the result that an abusive but financially disadvantaged spouse would be virtually assured of a pension (alimony) upon marriage termination, so long as adultery or a felony conviction did not occur. Such a conclusion is inconsistent with both the legislative action and the premises upon which Art. 112 is based (i.e., that one who is guilty of fault, should not receive alimony). Thus, we conclude that the trial court erred in limiting its consideration of fault for purposes of Art. 112 alimony solely to the questions of whether adultery or conviction of a felony had been shown by Mr. Mathews to have been committed by Mrs. Mathews.

In the instant case, Mrs. Mathews admittedly moved out of the marital domicile. Mr. Mathews alleged that Mrs. Mathews abandoned him and is therefore not entitled to permanent alimony.

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614 So. 2d 1287, 1993 WL 45059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathews-v-mathews-lactapp-1993.