Prudhomme v. Prudhomme

526 So. 2d 1293, 1988 La. App. LEXIS 930, 1988 WL 35401
CourtLouisiana Court of Appeal
DecidedApril 21, 1988
DocketNo. 87-269
StatusPublished
Cited by1 cases

This text of 526 So. 2d 1293 (Prudhomme v. Prudhomme) 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
Prudhomme v. Prudhomme, 526 So. 2d 1293, 1988 La. App. LEXIS 930, 1988 WL 35401 (La. Ct. App. 1988).

Opinion

EDMUND M. REGGIE, Judge Pro Tem.

Plaintiff, Velma Henry Prudhomme, appeals the judgment of the trial court find[1294]*1294ing her mutually at fault in causing the separation of the parties and denying her permanent alimony. We affirm.

Willis Prudhomme and Velma Prud-homme were married on May 20, 1951. The parties remained married for nearly 34 years and raised four boys, the youngest being approximately 25 years old.

A review of the record reveals that the marriage between the parties was tumultuous and that the parties fought continuously. However, the marriage did not begin to seriously deteriorate until five years prior to the separation, when Mr. Prudhomme joined a band and started playing at dances three nights a week. Mrs. Prudhomme testified that Mr. Prudhomme would play at dances, often keeping late hours, and that is when their problems started. She admitted that family squabbles occurred every now and then, but she denied ever threatening Mr. Prudhomme with a knife or gun. She also stated that she suspected Mr. Prudhomme of carrying on an illicit affair with a family friend, Enolia Gradney. She suggested that they go to a marriage counselor because things were not getting better between them, but Mr. Prudhomme refused.

Mr. Prudhomme testified at trial that he left the family home on December 28,1983, after Mrs. Prudhomme followed him when he left to go to “a supper,” which, according to the testimony, he and several men frequently held. According to his testimony, when he noticed Mrs. Prudhomme was following him, he drove into a driveway of a house that was being built by Enolia Gradney, who he married several months after his divorce. Allegedly, she exited from her car and started cussing at him and remarked that she was going to kill him when he got home. He never went back home. The next day, a deputy from the Allen Parish Sheriff’s Department accompanied him to their residence so that he could get his clothes.

Willis Prudhomme filed a petition for separation on January 18, 1984, alleging inter alia that Mrs. Prudhomme’s repeatedly leveled false accusations of infidelity and numerous threats of bodily harm were of a such nature as to render their living together insupportable. Mrs. Prudhomme filed an answer and reconventional demand, alleging that Mr. Prudhomme abandoned the matrimonial domicile without just and legal cause, and that he had been guilty of cruel treatment toward her.

On January 10, 1985, Mr. Prudhomme filed a supplemental petition requesting a judgment of absolute divorce based on LSA-R.S. 9:3o!,1 one year living apart without reconciliation. A judgment of absolute divorce was granted on March 8, 1985 in favor of Mr. Prudhomme. Fault was not ascertained at this time.

Mrs. Prudhomme filed a rule for permanent alimony on March 15, 1986 requesting that she be given $500.00 a month due to her being in necessitous circumstances. In response, Mr. Prudhomme denied that Mrs. Prudhomme was entitled to permanent alimony and averred that the original separation of the parties was occasioned by the fault of Mrs. Prudhomme, or alternatively, by the mutual fault of both parties.

A hearing on the rule was set for July 15, 1986, but after several continuances, the trial on the rule was held on November 10, 1986. By agreement of the parties, the trial was bifurcated. The trial judge decided to receive evidence on the issue of fault before addressing the issues of whether Mrs. Prudhomme was in need of permanent alimony and whether Mr. Prudhomme was financially able to pay. At the conclusion of the hearing, judgment was rendered in open court declaring the original separation to have been caused by the joint or mutual fault of the parties and, pursuant to LSA-C.C. Art. 141, the request for permanent alimony was denied.2 A judgment was [1295]*1295signed on November 21,1986 and an appeal was taken by Mrs.- Prudhomme on December 5, 1986.

On appeal, Mrs. Prudhomme contends the trial court erred in determining that her conduct was such as to constitute mutual fault within the meaning of LSA-C.C. Art. 141.

Under LSA-C.C. Art. 160, the court may allow a claimant spouse permanent alimony only “when a spouse has not been at fault and has not sufficient means for support.” Ward v. Ward, 339 So.2d 839 (La.1976). Generally, fault is not an issue in divorce proceedings in which divorce is sought on grounds of living separate and apart for one year unless one spouse specifically requests permanent alimony. LSA-R.S. 9:301; Jordan v. Jordan, 408 So.2d 952 (La.App. 2 Cir.1981); Brady v. Brady, 388 So.2d 57 (La.App. 1 Cir.1980).

When and if a claim for permanent alimony is made subsequent to a no fault divorce two jurisprudential principles are applicable; first, the jurisprudence places the burden of proving freedom from fault on the claimant spouse, Smith v. Smith, 216 So.2d 391 (La.App. 3 Cir.1968); and second, in order to preclude alimony, fault on the part of the claimant spouse must be of the same type and magnitude that would constitute grounds for a “fault” separation or divorce under C.C. Articles 138 and 139. Adams v. Adams, 389 So.2d 381 (La.1980); Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3 Cir.1981). While the mutual fault of the parties need not be equal, it must be sufficient standing alone to award the other a separation under LSA-C.C. Art. 138. Harrington v. Campbell, 413 So.2d 297 (La.App. 3 Cir.1982).

In arriving at his determination that there was mutual fault in the separation the trial judge relied heavily on the testimony of Mrs. Irene Henry, Mrs. Prudhomme’s sister-in-law.

At the trial Mrs. Prudhomme’s sister-in-law, Irene Henry, testified that Mrs. Prud-homme continuously nagged Mr. Prud-homme and found fault with everything that he did. Additionally, she stated that Mrs. Prudhomme had a bad temper which would erupt when Mr. Prudhomme would go off in the evenings to referee Little League baseball games or basketball games that were held in the community.

Similar testimony was offered by Willis Prudhomme’s brother, Izelly Landry. He testified that Mrs. Prudhomme frequently lost her temper and that he heard her say on several occasions that she was going to shoot Mr. Prudhomme. Moreover, he stated that Mrs. Prudhomme would also get mad when Mr. Prudhomme went on hunting and camping trips with his friends.

In his brief reasons for judgment, the trial judge stated:

“Here is what I actually believe. I believe the man was probably playing around with that woman who is his present wife. But I believe this. Instead of taking that thing easy, she kept agitating it. That man might have quit her or might have stayed at home. That marriage could have gone. I believe that she was a possessive jealous wife, that wanted her husband to do exactly what she wanted. That might have caused him to fool around with that lady. All in all, I really believe that this marriage was on the rocks and that both of them contributed substantially to the separation and that resulted in the divorce. And either one of them could have independent grounds to secure the separation. Him by not staying enough at the house and her harping on it too much.”

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526 So. 2d 1293, 1988 La. App. LEXIS 930, 1988 WL 35401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prudhomme-v-prudhomme-lactapp-1988.