Unkel v. Unkel

651 So. 2d 382, 1995 WL 81281
CourtLouisiana Court of Appeal
DecidedMarch 1, 1995
Docket26,650-CA
StatusPublished
Cited by6 cases

This text of 651 So. 2d 382 (Unkel v. Unkel) 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
Unkel v. Unkel, 651 So. 2d 382, 1995 WL 81281 (La. Ct. App. 1995).

Opinion

651 So.2d 382 (1995)

Karen Lynn LaFleur UNKEL, Plaintiff-Appellant,
v.
Steven Patrick UNKEL, Defendant-Appellant.

No. 26,650-CA.

Court of Appeal of Louisiana, Second Circuit.

March 1, 1995.

*383 Clifford L. Lawrence, Jr., Monroe, for Karen Unkel.

A. Shawn Alford, Farmerville, for Steven Unkel.

Before MARVIN, NORRIS, and BROWN, JJ.

MARVIN, Chief Judge.

Mrs. Unkel appeals a March 17, 1994, judgment that found her at fault in the breakup of the marriage and denied her permanent alimony. Urging that his obligation to pay alimony pendente lite ended when the December 9, 1993, judgment of divorce between them became definitive, Dr. Unkel appeals an April 6, 1994, judgment that ordered him to continue paying alimony pendente lite until the March 17, 1994, judgment appealed by Mrs. Unkel becomes definitive.

We affirm each judgment for these reasons:

FACTS

Dr. and Mrs. Unkel were married in 1977 and thereafter had two sons. While Dr. Unkel completed medical school and practiced medicine, Mrs. Unkel served the family as wife and mother.

Not long after the birth of their younger son Mrs. Unkel became mentally depressed. She sought treatment for her depression for 14 years. One of her doctors prescribed Xanax for her, a drug in the benzodiazepine class used for management of anxiety disorders or short term relief of symptoms of anxiety. Her husband filled these prescriptions with samples from his office, though he was opposed to her using such a drug. Mrs. Unkel eventually had to be hospitalized because she became addicted to the drug. After she left the hospital, the same doctor put her on another type of benzodiazepine.

Mrs. Unkel enjoyed spending money. She had a $1400 per month allowance for groceries. She often became overdrawn at the bank, she charged credit cards up to the maximum, and took out loans without her husband's knowledge. Each time she reached a financial crisis, Dr. Unkel bailed her out, paid off the creditors, and cut up her credit cards. Although her husband's embarrassment and displeasure over this behavior were known to her, Mrs. Unkel always obtained more credit and credit cards. She explains that shopping is "all [she] had to do for recreation."

The trial court found that Mrs. Unkel's spending habits were the primary problem between her and Dr. Unkel. The record clearly supports this finding. Mrs. Unkel's spending habits continued after she voluntarily left the family home without cause. Although Dr. Unkel allowed her to take whatever items she wanted from the family home, she charged all new furnishings, appliances, linens, and housewares, totaling over $7,000 when she moved from the home. A witness said that Mrs. Unkel told her she had never had a gift shower, and that "this was like a gift from her to her." Mrs. Unkel's chief complaint about her marriage was she did not have enough money to spend.

Based on the circumstances we have summarized, the trial court concluded Mrs. Unkel had failed to carry her burden of proving she was without fault during the marriage, and thus denied her permanent alimony in the March 17, 1994, judgment. The trial court relied on this court's opinion in Allen v. Allen, 642 So.2d 202 (La.App.2d Cir.1993), reversed, however, after this appeal was entered. Allen v. Allen, 94-1090 (12/12/94), 648 So.2d 359 (La.1994).

The April 6, 1994, judgment or order continued the award of alimony pendente lite to Mrs. Unkel pending the resolution of the issue of fault on appeal. The April 6, 1994, order states that any alimony pendente lite *384 erroneously awarded should be credited toward a property settlement.

Appealing the award continuing alimony pendente lite, Dr. Unkel urges that when the December 9, 1993, divorce judgment of the divorce, entered as a consent judgment in a separate action, became definitive, the obligation to pay alimony pendente lite, as an "incident" of marriage, was subsumed or simultaneously terminated with the marriage.

PERMANENT ALIMONY

Mrs. Unkel asserts that the trial court was clearly wrong in finding her at fault in the break-up of the marriage. She alternatively contends her depression and addiction to Xanax legally constitute a mental illness that is a defense to fault. Kaplan v. Kaplan, 453 So.2d 1218 (La.App.2d Cir.1984), writ denied. If she is at fault, and her emotional problems do not amount to fault-vitiating mental illness, Mrs. Unkel then argues that her actions were a reasonable reaction to the conduct of her husband that renders him, and not her, at fault. See Allen, supra.

Factual Finding of Fault

A spouse claiming permanent alimony bears the burden of showing he or she was without fault in the break-up of the marriage. Lagars v. Lagars, 491 So.2d 5 (La.1986); Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Currier v. Currier, 599 So.2d 456 (La.App.2d Cir.1992). "Fault" in this context contemplates conduct or substantial acts of commission or omission by the claimant violative of her marital duties and responsibilities. Allen, supra; Pearce v. Pearce, 348 So.2d 75 (La.1977). A spouse who petitions for alimony need not be totally blameless in the marital discord. Only misconduct of a serious nature, providing an independent contributory or proximate cause of the break-up, equates to legal fault. Pearce, supra. A trial court's findings of fact on the issue of a wife's "fault" will not be disturbed on appeal unless found to be manifestly erroneous.

Before the repeal of Civil Code Article 138, fault which would preclude alimony was held to be synonymous with the grounds for separation in that article, including adultery, habitual intemperance, excesses, cruel treatment or outrages, and abandonment. Lagars, supra; Adams v. Adams, 389 So.2d 381 (La.1980). After Article 138 was repealed, the only statutory grounds for divorce are adultery or punishment for a felony by death or hard labor. In determining the issue of fault which bars permanent alimony, courts must refer to the prior jurisprudential criteria. Allen, supra. This jurisprudence, unchanged by the legislative repeal of former Civil Code Article 138, equates alimony-barring fault to those faults enumerated in that article. Kaplan, supra.

The trial court gave great weight to the testimony of Mary Vidrine, a close friend of Mrs. Unkel. Mrs. Vidrine said Mrs. Unkel had never wanted to work out her marital problems in the four years she had known her. Mrs. Unkel often talked of leaving, only to be dissuaded each time by Mrs. Vidrine and Dr. Unkel. Mrs. Vidrine said Mrs. Unkel's main complaint was the lack of funds at her disposal.

As a secondary complaint, Mrs. Unkel said her husband did not spend enough time with her and their sons, because when he was not working he went to his hunting camp, or to Bible study, or to work out. Assessing Mrs. Vidrine's credibility, the trial court found the reason that Mrs. Unkel left home was because she wrongly perceived she did not have enough spending money and Dr. Unkel did not spend enough time with his family. Mrs. Unkel challenges Mrs. Vidrine's testimony because the Vidrines continue to attend the same church as Dr. Unkel and are involved in the same Bible study group. Credibility assessments are the prerogative of the finder of fact and are entitled to great weight. Pearce, supra.

The record supports the conclusion that Mrs. Unkel left the matrimonial domicile without lawful cause, as she had threatened to do several times, filing her action for divorce four days after leaving.

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Cite This Page — Counsel Stack

Bluebook (online)
651 So. 2d 382, 1995 WL 81281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/unkel-v-unkel-lactapp-1995.