Quinn v. Quinn

412 So. 2d 649
CourtLouisiana Court of Appeal
DecidedMarch 2, 1982
Docket14780
StatusPublished
Cited by22 cases

This text of 412 So. 2d 649 (Quinn v. Quinn) 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
Quinn v. Quinn, 412 So. 2d 649 (La. Ct. App. 1982).

Opinion

412 So.2d 649 (1982)

Donald Mouton QUINN, III, Plaintiff-Appellee,
v.
Judith Lynn Fletcher QUINN, Defendant-Appellant.

No. 14780.

Court of Appeal of Louisiana, Second Circuit.

March 2, 1982.
Rehearing Denied April 12, 1982.[*]
Writs Denied June 4, 1982.

*650 Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for defendant-appellant.

McLeod, Verlander & Dollar by Robert P. McLeod and David E. Verlander, III, Monroe, for plaintiff-appellee.

Before PRICE, HALL and FRED W. JONES, Jr., JJ.

En Banc. Rehearing Denied April 12, 1982.[*]

HALL, Judge.

Plaintiff, Dr. Donald M. Quinn, III, filed suit in September 1980 against defendant, Judith Lynn Fletcher Quinn, seeking a separation on the grounds of cruel treatment and custody of their five-year-old son, Zachary. Temporary custody was awarded to Dr. Quinn by ex parte order. The defendant reconvened seeking a separation on the grounds of constructive abandonment and also seeking custody of the child. After a 17-day trial which took place over a period of several months and pursuant to written reasons for judgment, judgment was rendered granting a separation on the basis of mutual fault, awarding custody of the child to plaintiff and awarding defendant alimony pendente lite of $1,000 per month beginning April 1, 1981.

Defendant appealed contending that the trial court erred in failing to award her a separation on the grounds of abandonment, in failing to award custody of the child to her, in failing to award an adequate amount of alimony pendente lite and in failing to make the alimony award retroactive to the date the reconventional demand was filed. Plaintiff answered the appeal contending that the trial court erred in failing to award him a separation on the grounds of cruel treatment.

For reasons expressed in this opinion we affirm the judgment awarding custody to the plaintiff father. We set aside that part of the judgment awarding a separation on the grounds of mutual fault and render judgment awarding defendant a separation on the grounds of abandonment. We affirm the amount of the alimony pendente lite award, but modify the judgment to make the award effective from the date of filing the reconventional demand.

Background Facts

After going together for several years during college and while plaintiff served a tour of duty in the service, plaintiff and defendant were married in the summer of 1971. Plaintiff had grown up in Bastrop in north Louisiana where his father was an established dentist and defendant had grown up in Franklin in south Louisiana. Both attended and graduated from Northeast in Monroe, plaintiff majoring in psychology and defendant obtaining a degree in education. The couple moved to Baton Rouge in the fall of 1971 so that plaintiff could attend law school at LSU. Plaintiff attended law school for one semester and then obtained employment in Baton Rouge. Defendant taught school in the Baton Rouge area until the couple moved to Bastrop in May 1973. In the fall of 1974 plaintiff and defendant moved to New Orleans so that plaintiff could attend dental school. Their son Zach was born in New Orleans in February, 1975. Except for one semester *651 surrounding the time Zach was born defendant taught school while they were in New Orleans. As graduation from dental school approached the couple considered a number of possibilities of where they would locate. Although defendant was apprehensive about moving to the small town of Bastrop in close proximity to plaintiff's parents, a mutual decision was made to move back to Bastrop so that plaintiff could go into his father's dental practice. They moved back in June 1978 and lived in a house next door to the dental office and within a few doors of plaintiff's parents, where they continued to live until their separation in September 1980.

While plaintiff and defendant were living in New Orleans plaintiff began participating in a psychotherapy group organized by a friend and defendant also participated in some therapy sessions at that time. In January 1978 while still in New Orleans defendant began counseling and therapy with a transactional analysis therapist and continued to see the therapist for one hour a week until June when they moved back to Bastrop.

After moving back to Bastrop defendant resumed her therapy sessions, traveling to New Orleans once in September, once in October, and periodically in November and December of 1978. Defendant stopped going to New Orleans for therapy between December 1978 and October 1979 when she again began participating in her therapy group on a regular basis until the parties separated. She attended therapy sessions in New Orleans, usually on the weekends, at least once a month and on three occasions attended week-long therapy sessions in Mississippi and Florida.

Plaintiff thoroughly disapproved of his wife's participation in the therapy sessions with what he regarded as incompetent therapists and which required her being away from home frequently. His suggestion that defendant obtain therapy closer to home was rejected by defendant. The marital relationship between plaintiff and defendant rapidly deteriorated. Obviously anticipating the breakup of their marriage, plaintiff talked to a lawyer, employed private investigators to investigate defendant's activities in connection with the group therapy sessions, and began to make photocopies of defendant's private diary she kept in connection with her therapy and of a letter defendant wrote to a male member of the therapy group. The diary and the letter caused plaintiff concern because of their sexual overtones and the indication of a sexual involvement by defendant with the man to whom she wrote.

In August 1980 defendant, over plaintiff's protest, went to a therapy session in Florida with a Shreveport doctor, plaintiff's cousin, and his wife. When the bus on which defendant was returning home a week or so later stopped at the bus station in Monroe, defendant was served by a deputy sheriff with the petition for separation and custody filed by plaintiff in this case. Plaintiff was at the bus station, put defendant's luggage in the family Volkswagen, gave defendant $100, and told her she was no longer welcome at home and could not return there. Defendant went to the home of the Shreveport doctor and his wife, where she stayed through the trial of this matter which extended over a period of several months.

The Separation Judgment

The trial court found that the action of plaintiff in forcing defendant to leave the matrimonial domicile amounted to "forced" or constructive abandonment. The court further found, however, that defendant "was not free from fault in her mannerisms and in her activity with the therapy of which her husband disapproved." The court held that the parties were entitled to a separation on the basis of their mutual fault which caused the dissolution of the marital relationship.

Both parties urge on appeal that the findings of the trial court are legally inconsistent. If defendant was guilty of fault giving plaintiff lawful cause to ban her from the marital home, then plaintiff's actions could not amount to constructive abandonment. On the other hand, if defendant's conduct did not amount to cruel treatment *652 giving plaintiff grounds for a separation on that basis, then plaintiff's actions did amount to constructive abandonment and defendant is entitled to the separation.

A separation may be granted although both spouses are mutually at fault in causing the separation. LSA-C.C. Art. 141.

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412 So. 2d 649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinn-v-quinn-lactapp-1982.