Webster v. Webster

308 So. 2d 302
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1975
Docket10124
StatusPublished
Cited by10 cases

This text of 308 So. 2d 302 (Webster v. Webster) 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
Webster v. Webster, 308 So. 2d 302 (La. Ct. App. 1975).

Opinion

308 So.2d 302 (1975)

William C. WEBSTER
v.
Audrey L. WEBSTER.

No. 10124.

Court of Appeal of Louisiana, First Circuit.

February 10, 1975.
Rehearing Denied March 10, 1975.

*303 James A. Piper, Baton Rouge, for appellant.

Frank A. Fertitta, Baton Rouge, for appellee.

Before LANDRY, BLANCHE and NEHRBASS, JJ.

BLANCHE, Judge.

Plaintiff-appellant, William C. Webster, appeals from a judgment of The Family Court, Parish of East Baton Rouge, awarding Audrey L. Webster, defendant-appellee, permanent alimony of $50 per month during the nine winter months when she works as a school crosswalk lady and the sum of $150 per month during the three summer months when she is not so employed, and child support of $150 per month for the minor child, Robert Webster.

On December 13, 1963, defendant filed suit in The Family Court, Parish of East *304 Baton Rouge, seeking a separation from bed and board from the plaintiff and also seeking the custody of their minor children, Kenneth, David and Robert Webster. She alleged that the habitual and almost continuous cruel treatment, outrages and excesses of her husband rendered their living together impossible and insupportable. Among other things, she alleged her husband struck her with blows of great physical force; verbally abused her by referring to her in vulgar, filthy and uncomplimentary terms; failed to provide funds with which to operate the household and clothe the minor children; and absented himself during the greater portion of each weekend without informing her of his whereabouts. After hearing the evidence adduced on behalf of each of the said parties. The Family Court rendered judgment on December 15, 1964, in favor of the defendant herein, Audrey L. Webster, and against the plaintiff herein, William C. Webster. In conjunction therewith, the plaintiff herein was ordered to pay temporary alimony and child support amounting to $200 per month, in semi-monthly payments of $100 each.

On June 30, 1965, six months after the separation decree, plaintiff was awarded a divorce from defendant by the Chancery Court of Union County, Arkansas; however, he continued to pay the $200 temporary alimony and child support until the present time.

Some eight years after the separation, on July 27, 1973, plaintiff petitioned The Family Court, Parish of East Baton Rouge, to have the Arkansas divorce decree recognized in Louisiana and accorded full faith and credit.," as required by the United States Constitution, and in the alternative, to be awarded a divorce on grounds of voluntary separation in fact for a period in excess of two years.

On August 24, 1973, defendant answered plaintiff's petition, requesting that it be dismissed at his cost and further asking that a divorce be granted in her favor. By reconventional demand, she sought the permanent care, custody and control of the minor child, Robert Webster, and permanent alimony and child support in the sum of $300 monthly.

On May 17, 1974, the Arkansas divorce was granted full faith and credit. Predicated upon a stipulation of counsel, the judgment which recognized appellant's Arkansas divorce also provided:

"* * * it being recognized that the Arkansas decree of fault shall not constitute evidence of fault of such a nature as to deprive defendant from claiming alimony on the issue as the issue is to be determined by the laws of the State of Louisiana and predicated upon the plaintiff being able to have the Court review the issue of alimony and the child support in these proceedings at a later date." (Record, p. 13)

Also on May 17, 1974, plaintiff submitted a "Motion to Reduce" the 1964 award of $200 per month temporary alimony and child support. He alleged defendant was not free from fault when the parties initially separated, and, therefore, under Louisiana law, she was not entitled to permanent alimony. Alternatively, plaintiff claimed relief from alimony payments to defendant on the ground that defendant had sufficient means for her own support. In addition, plaintiff prayed for cessation of alimony payments to the children, Kenneth and David, who had attained the age of majority.

On June 6, 1974, after trial was held on the Motion to Reduce, judgment was signed relieving plaintiff of further support of Kenneth and David Webster; Audrey L. Webster was granted the permanent care, control and custody of the minor, Robert Webster, subject to reasonable visitation rights of the plaintiff; and plaintiff was ordered to pay $150 per month for the maintenance and support of the minor child, Robert Webster. Additionally, in response to defendant's reconventional demand, plaintiff was ordered to pay defendant alimony of $150 per month *305 annually during June, July and August and $50 per month annually during the months of September through May, said support and alimony payments to be made in two equal monthly installments. From this judgment, plaintiff appealed.

The trial judge obviously awarded the defendant permanent alimony under the authority of LSA-C.C. Art. 160(3)[1]. Regarding the wife's freedom from fault, which is a requirement of Article 160, we note that even though the husband in the instant case had obtained a divorce from the wife in Arkansas, counsel for both parties stipulated that the wife's right to permanent alimony in the instant case would not be construed to be disturbed or abandoned by the effect of such decree. In effect, counsel for both parties stipulated that Mrs. Webster's fault in her claim for permanent alimony under Article 160 was to be determined in the instant proceeding and was in no way dependent upon the Arkansas divorce which was granted to the husband. In view of the foregoing stipulation, we think the trial judge was correct in proceeding to determine the wife's right to permanent alimony in accordance with Louisiana law. Concerning the question of the wife's fault, the trial judge in his reasons stated:

"* * * [S]ince the record shows that she initially obtained the judgment of separation on the ground of cruel treatment the wife makes out a prima facie case of her right to permanent alimony, if necessary, and the burden of proof then shifts to the husband to go forward with evidence to prove to the court by a preponderance of the evidence that the wife was guilty of conduct which contributed to the breakdown of the marriage." (Record, p. 51)

The trial court then found that the plaintiff failed to bear the burden of proof as to the fault issue and held that Mrs. Webster was entitled to prove her entitlement to permanent alimony.

The plaintiff-husband contends the trial judge erred on the merits of this case by determining that the wife was not at fault in the breakdown of the marriage and, therefore, was entitled to permanent alimony under Louisiana Civil Code Article 160. He argues that the error resulted from the judge incorrectly placing the burden upon him to show the wife's fault, rather than upon her to show her freedom from such fault.

Defendant-wife, on the other hand, contends the trial judge was correct in finding her free from fault and, in addition, she asserts that the recent Louisiana Supreme Court case of Fulmer v. Fulmer, 301 So.2d 622 (1974), precludes a relitigation of fault for purposes of Article 160 in all cases where the question has been determined in a prior separation suit. Relying upon Fulmer, she reasons that since her freedom from fault was determined in the prior separation suit between her and her husband, the husband is precluded from raising the issue again in the instant proceeding.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kelly v. Kelly
596 So. 2d 286 (Louisiana Court of Appeal, 1992)
Vesper v. Vesper
469 So. 2d 458 (Louisiana Court of Appeal, 1985)
Rutherford v. Rutherford
452 So. 2d 432 (Louisiana Court of Appeal, 1984)
Darbonne v. Darbonne
427 So. 2d 558 (Louisiana Court of Appeal, 1983)
Eicke v. Eicke
399 So. 2d 1231 (Louisiana Court of Appeal, 1981)
Moon v. Moon
345 So. 2d 168 (Louisiana Court of Appeal, 1977)
In re Adoption of Hakenjos
343 So. 2d 1201 (Louisiana Court of Appeal, 1977)
Golson v. Golson
341 So. 2d 1229 (Louisiana Court of Appeal, 1976)
Everett v. Everett
334 So. 2d 511 (Louisiana Court of Appeal, 1976)
Gautreaux v. Cormier
315 So. 2d 164 (Louisiana Court of Appeal, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
308 So. 2d 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webster-v-webster-lactapp-1975.