Mayes v. Mayes

743 So. 2d 1257, 1999 WL 1006418
CourtLouisiana Court of Appeal
DecidedNovember 5, 1999
Docket98 CA 2228
StatusPublished
Cited by21 cases

This text of 743 So. 2d 1257 (Mayes v. Mayes) 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
Mayes v. Mayes, 743 So. 2d 1257, 1999 WL 1006418 (La. Ct. App. 1999).

Opinion

743 So.2d 1257 (1999)

Harry Thomas MAYES
v.
Jeri Hoover MAYES.

No. 98 CA 2228.

Court of Appeal of Louisiana, First Circuit.

November 5, 1999.

*1258 Alexis A. St. Amant II, St. Amant & St. Amant, Baton Rouge, LA, for plaintiff-appellant Harry Thomas Mayes.

Amy E. Counce, Baton Rouge, LA, for defendant-appellee Jeri Hoover Mayes.

*1259 BEFORE: SHORTESS, PARRO, and KUHN, JJ.

PARRO, J.

The initial issue in this appeal is whether Jeri Hoover Mayes (Jeri) was free from fault in the dissolution of her marriage to Harry Thomas Mayes (Tom), such that she is entitled to permanent alimony from him. If so, was the trial court's award of $450 per month appropriate. Having reviewed the evidence and applicable law, we affirm.

BACKGROUND

Jeri and Tom were married on June 10, 1994, and had two children. They separated when Jeri left with the children in July 1997, and were divorced on February 3, 1998. The divorce was granted on the basis of Louisiana Civil Code article 102, and therefore the fault of either party was not an issue. The trial court entered judgments concerning child custody and support in accord with the stipulations of the parties, and a trial was held on May 4, 1998, on Jeri's request for permanent alimony.[1] After considering the testimony of both parties and their witnesses, along with documentary evidence of the parties' incomes and Jeri's expenses, the court stated:

The court does believe that she was without fault in the breakup of the marriage. The court will set the amount of alimony at $450.00 per month payable in two equal semi-monthly installments on the first and fifteenth.

The judgment, which was signed May 13, 1998, made the award retroactive to the date of the signing of the judgment of divorce.

Tom contends the trial court erred in finding Jeri free from fault, because she caused the divorce by abandoning him and the marital domicile without lawful cause. In the event this court agrees with the trial court's finding that Jeri is entitled to permanent alimony, Tom claims the amount granted was excessive, because the evidence did not show sufficient permissible expenses to justify this award.

FREEDOM FROM FAULT

Applicable Law

The former provisions of Louisiana Civil Code article 112, which are applicable to an award of permanent alimony in this case, stated, in pertinent part:

A. (1) 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.

A spouse seeking permanent alimony must be without fault, and the burden of proof is upon the claimant. Gitschlag v. Gitschlag, 593 So.2d 1331, 1335 (La.App. 1st Cir. 1991). The question of fault is a factual one. A trial court's findings of fact on the issue of a spouse's fault will not be disturbed on appeal unless found to be manifestly erroneous. Pearce v. Pearce, 348 So.2d 75, 77-78 (La.1977).

Since the statutory law no longer specifies which type of fault would constitute grounds to deny permanent alimony, legal fault must be determined according to the prior jurisprudential criteria. Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359, 362. To constitute legal fault, misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation. Michelli v. Michelli, 93-2128 (La.App. 1st Cir.5/5/95), 655 So.2d 1342, 1350. Such acts are synonymous with the fault grounds that previously entitled a spouse to a separation or divorce. Bourg v. Bourg, 96-2422 (La.App. 1st Cir.11/7/97), *1260 701 So.2d 1378, 1380. They include 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. Former LSA-C.C. arts. 138 and 139 (repealed 1990); Bourg, 701 So.2d at 1380.

Abandonment by a spouse occurs when that spouse withdraws from the common dwelling without lawful cause and constantly refuses to return. Former LSA-C.C. art. 143 (repealed 1990); Gitschlag, 593 So.2d at 1335. Mutual incompatibility and general unhappiness with the marital relationship are not lawful causes for leaving the family home. Asher v. Asher, 521 So.2d 645, 647 (La.App. 1st Cir.1988). Lawful cause sufficient to justify a spouse's departure from the marital domicile is equivalent to reasons for leaving which constituted grounds for separation under former Article 138. Leggio v. Leggio, 491 So.2d 440, 442 (La.App. 1st Cir.1986). Thus, where one spouse unilaterally decides to leave the marital domicile, and subsequently refuses to return, the separation is either for lawful cause or it is abandonment. Gitschlag, 593 So.2d at 1336. One of the elements necessary to prove abandonment is that the abandoned spouse desired the other spouse's return. Robichaux v. Robichaux, 525 So.2d 321, 323 (La.App. 1st Cir.1988).

Analysis

This court must examine the record to determine whether the trial court's finding that Jeri was free from fault has support in the record and is not clearly wrong. Tom's only claim of fault is that Jeri abandoned him by leaving the matrimonial domicile without lawful cause. The trial court did not make a specific finding that Jeri did not abandon Tom; however, the finding that she was free from fault in the dissolution of the marriage implies such a finding. Our review of the record will focus on facts relevant to this issue.

It is undisputed that Jeri moved out of the marital domicile in July 1997 and did not return to live with her husband after that date. Her leaving with the children was the precipitating factor in their separation and led eventually to the divorce. Therefore, the first element of abandonment is met.

The next question is whether Jeri had lawful cause to leave Tom; in other words, whether his conduct toward her during the marriage rose to the level of marital fault, such that she was justified in leaving. Viewing the evidence as a whole, it is obvious the relationship was troubled before the marriage, and the additional responsibilities brought on by the birth of two children within three years did not help the situation. The parties' descriptions of their marital incompatibilities are supported by the testimony of family and friends. It is apparent that Jeri and Tom had difficulties with communication, work-sharing, and basic respect for each other. They were unable to resolve these problems in a consistently mature way. However, the stresses between them do not rise to the level of fault associated with "lawful cause" for dissolution of the marriage, as that term has been developed in the jurisprudence. Neither Jeri nor Tom had "lawful cause" to leave the marriage. Therefore, because the evidence shows Jeri left without "lawful cause," we conclude the second element of abandonment has also been met.

The third element that must exist for abandonment is that the leaving spouse constantly refused to return. Jeri announced her intention to leave after thinking about it for some time, talking to her friends about leaving, confronting Tom with her complaints, and finally deciding that she and Tom were not going to be able to resolve their problems. According to her testimony and Tom's, after she left neither of them made any real effort to put the marriage back together.

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743 So. 2d 1257, 1999 WL 1006418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayes-v-mayes-lactapp-1999.