Slater v. Slater

410 So. 2d 1197, 1982 La. App. LEXIS 6748
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1982
DocketNo. 8633
StatusPublished
Cited by2 cases

This text of 410 So. 2d 1197 (Slater v. Slater) 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
Slater v. Slater, 410 So. 2d 1197, 1982 La. App. LEXIS 6748 (La. Ct. App. 1982).

Opinion

GUIDRY, Judge.

Plaintiff, Wayburn Dwayne Slater, filed a divorce action against defendant, Bobbie Sue Mack Slater, alleging that the parties have lived separate and apart for one year in accordance with the provisions of LSA-R.S. 9:301. In the alternative, plaintiff sought a judgment of separation from bed and board contending that the defendant was guilty of mental cruelty towards him. Defendant filed exceptions of lack of subject matter jurisdiction, no cause/right of action, and res judicata.1 The trial court [1198]*1198overruled all of the defendant’s exceptions. After a hearing on the merits, the trial court concluded that the parties had not lived separate and apart for the requisite period within the intendment of LSA-R.S. 9:301 and denied plaintiff’s demand for a divorce. Moreover, the district court concluded that plaintiff failed to establish by a preponderance of the evidence that the defendant was guilty of mental cruelty towards him and dismissed his demand for a judgment of separation from bed and board.

Plaintiff appeals only from the judgment of the trial court denying his demand for a separation from bed and board. Defendant answered the appeal praying for affirmation of the trial court’s judgment denying plaintiff’s demands, and additionally, seeking reversal of the trial court’s decision overruling defendant’s exceptions of no cause/right of action and res judicata. Additionally, defendant prays for attorney’s fees and assessment by this court of all costs of the proceedings at trial and on appeal to plaintiff. Alternatively, defendant contends in event of reversal that this matter be remanded to the trial court for a new trial due to the failure of the trial court to grant defendant’s motion for a continuance of the instant matter.

The following issues are presented on appeal:

(1) Did the trial court err in denying plaintiff’s demand for a judgment of separation from bed and board?
(2) Is a judgment of “separate maintenance” decreed by a Mississippi Chancery Court, the same or substantially similar to a Louisiana judgment of separation from bed and board, such as to render all issues therein litigated res judicata, and meriting full faith and credit by the Louisiana courts?
(3) Is the defendant entitled to attorney's fees?
(4) Did the trial court err in denying defendant’s motion for a continuance of the district court proceedings?

At the outset, we observe that defense counsel moved for a continuance prior to trial of the instant matter on the ground that the defendant was ill and unable to be present in court. The trial court denied defendant’s motion and proceeded to a trial on the merits. Defense counsel failed to call any witnesses in defendant’s behalf during the course of the hearing, thus, the record consists only of the testimony of plaintiff and his witnesses.

The record reflects that plaintiff and defendant were married on May 1, 1973 in Biloxi, Mississippi. No children were born of this union. Plaintiff is a member of the United States Air Force and is stationed in Biloxi, Mississippi, where he resided with defendant on the military base located there. On or about May 22, 1979, plaintiff departed the matrimonial domicile in Biloxi to begin a tour of duty in Korea. Following his return from Korea on May 3, 1980, plaintiff resided with defendant at the parties’ matrimonial domicile until May 7,1980. On May 7, 1980, plaintiff decided to leave the matrimonial domicile and return to Bunkie, Louisiana, his legal domicile. Mr. Slater stated that he did not inform defendant of his desire to live separate and apart from her prior to leaving. Plaintiff testified that when he left the matrimonial domicile, his wife began yelling at him, using vile language and calling him names, and threatened to have her son (by a previous marriage) kill him- if he attempted to return to the matrimonial domicile. The record reflects that the parties have lived separate and apart since May 7, 1980. Plaintiff filed the instant suit on May 20, 1980.

On August 8, 1980, a bill for separate maintenance filed by complainant, Bobbie Sue Mack Slater, against defendant, Way-burn Dwayne Slater, was tried by the Chancery Court of Harrison County, Mississippi. That court decreed that Bobbie Sue Mack Slater was entitled to separate maintenance and awarded her the sum of $275.00 per month to be paid by the defendant, Wayburn D. Slater.

[1199]*1199Because we conclude, as did the trial court, that on its merits, plaintiff’s suit should be dismissed, we do not consider correctness of the trial court’s rulings pertaining to defendant’s several exceptions or her motion for a continuance.

Plaintiff testified that he and his wife had not “gotten along” for a long time. In this regard, Mr. Slater stated that their marital relationship was characterized by a substantial amount of underlying tension. Moreover, plaintiff indicated that there existed a severe lack of communication between he and his wife. Mr. Slater testified that defendant was not a “dutiful wife”. In this regard, he stated that Mrs. Slater did not wash his clothes, cook his meals, or maintain the house. Further, Mrs. Slater allegedly refused to associate with plaintiff’s family and friends. In addition, plaintiff complained that the defendant refused to support him in his educational pursuits. Mr. Slater testified that the defendant attempted to live beyond their means. Finally, plaintiff alluded in his testimony to an alleged drug problem on the part of his spouse. However, in this connection, the record indicates that Mrs. Slater suffers from a painful degenerative bone disease and that she regularly takes medication prescribed by her attending physician to relieve pain.

In addition to plaintiff’s testimony, two other witnesses were called, specifically, plaintiff’s mother, Mrs. Dorothy Blanchard, and plaintiff’s half-sister, Mrs. Charlotte Cox. Both witnesses admitted at trial that they seldom visited the parties during the eight years of their marriage, however, both substantially supported the plaintiff’s testimony. In this regard, both of the aforesaid witnesses indicated that plaintiff was completely without fault and had made every effort to make the marriage a success.

Plaintiff contends that the trial court erred in denying his demand for a judgment of separation from bed and board. In this regard, plaintiff avers that the record is replete with uncontroverted evidence of mental cruelty inflicted upon him by the defendant.

The basis for plaintiff’s demand for a separation from bed and board is contained in LSA-C.C. Article 138 which provides in pertinent part:

“Separation from bed and board may be claimed reciprocally for the following causes:
* * * * * *
3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.”

The trial judge in his written reasons for judgment observes that the key factor in obtaining a separation judgment for cruel treatment by one’s spouse is that such treatment be of such a nature as to render the spouses living together insupportable.

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Bluebook (online)
410 So. 2d 1197, 1982 La. App. LEXIS 6748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slater-v-slater-lactapp-1982.