Whiteley v. Whiteley

490 So. 2d 1128, 1986 La. App. LEXIS 7198
CourtLouisiana Court of Appeal
DecidedJune 2, 1986
DocketNo. 86-CA-42
StatusPublished
Cited by2 cases

This text of 490 So. 2d 1128 (Whiteley v. Whiteley) 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
Whiteley v. Whiteley, 490 So. 2d 1128, 1986 La. App. LEXIS 7198 (La. Ct. App. 1986).

Opinion

CHEHARDY, Chief Judge.

This is a suit for separation from bed and board. Susan Jean Whiteley filed suit first, alleging abandonment, and Robert Claude Whiteley reconvened for separation on the ground of cruel treatment. After trial on the merits, the trial judge concluded that neither party was blameless but found no fault on either part sufficient to justify a mutual fault decree. He then awarded a separation on the ground of irreconcilable differences, under LSA-C.C. art. 138(10).

Mr. Whiteley has appealed because the failure of the trial judge to find Mrs. Whiteley at fault leaves appellant potentially liable to pay alimony after divorce.

Mr. Whiteley contends, first, his wife should have been found at fault in the breakup of the marriage because she spent too much time playing bridge and because she displayed behavior toward him he contends constituted cruel treatment such as to make their living together insupportable. Secondly, he asserts the trial judge erred in granting a separation under C.C. art. 138(10) because the parties had not sought a separation on that ground and had not complied with the technical requirements of the statute.

In rebuttal, Mrs. Whiteley asserts her behavior was in reaction to her husband’s drinking, which she alleges constitutes habitual intemperance, and she asserts that Mr. Whiteley should be found at fault in the breakup of the marriage. (She did not raise the issue of habitual intemperance until her answer to her husband’s recon-ventional demand, but evidence was permitted on the issue by the trial judge as an instanter amendment to the pleadings.) In the alternative, she argues the judgment of separation should be upheld because the evidence established the substantive requirements for separation on the ground of irreconcilable differences, although the parties did not comply with the procedural requirements.

We turn first to the issue of fault in the breakup of the marriage. Mr. Whiteley alleged that his wife was guilty of cruel [1130]*1130treatment through her obsession with duplicate bridge, her lack of interest and/or avoidance of sexual contact, and her statements that she no longer wished to be married to him.

Because Mrs. Whiteley failed either to cross-appeal or to answer Mr. Whiteley’s appeal, we do not consider her arguments that we should find Mr. Whiteley at fault. We will review the degree of his fault only to determine whether it was justification for Mrs. Whiteley’s actions.

The evidence established that Mr. Whiteley left the matrimonial domicile on March 23, 1985; he never asked to return and Mrs. Whiteley never requested that he return. Mrs. Whiteley admitted she told her husband, prior to his leaving, that she no longer wanted to be married. They agreed they should separate and that Mr. Whiteley should leave the house.

As to Mr. Whiteley’s drinking, Mrs. Whiteley admitted that he had been drinking for the duration of the marriage, some eight years. They had separated once previously and he had undergone treatment for alcoholism.

“A separation may be granted on grounds of abandonment if it is established that one of the parties withdrew from the marital domicile without lawful cause and constantly refused to return. * * * Similarly, barring a spouse from the matrimonial domicile without lawful cause constitutes constructive abandonment. * * * Lawful cause justifying withdrawal from or barring the other spouse from the common dwelling is substantially equivalent to a cause giving the withdrawing spouse grounds for a separation under LSA-C.C. Art. 138. Mere friction, dissatisfaction or incompatibility, however intense, are not enough to constitute lawful cause. * * ” Quinn v. Quinn, 412 So.2d 649, 652 (La. App. 2 Cir.1982), writ denied 415 So.2d 941, 945.

Obviously Mrs. Whiteley failed to prove the type of abandonment required to constitute a basis for judicial separation. See LSA-C.C. arts. 138(5), 143.

Mr. Whiteley testified that Mrs. Whiteley had become a duplicate bridge player some years before, but it was not until they moved to Louisiana in 1984 that she “became totally obsessed” with it. He stated she was out almost every day playing bridge; when not playing bridge she would be on the telephone talking to other bridge players, or would be reading books about bridge, or taking bridge classes. He said her only friends were other duplicate bridge players and that her “addiction” to the game “drove a wedge” into their marriage.

He also testified his wife was physically indifferent to him. His wife’s male bridge friends telephoned her frequently and this “bothered” Mr. Whiteley.

He stated he left the house at his wife’s insistence, because she had come to him several times in the preceding weeks telling him their marriage was over and that he should leave. He stated she told him she wanted to be free to date other men.

He admitted his wife had complained about his drinking and that he occasionally drank excessively. He stated his drinking did not affect his work activities and that he never drank while working. He denied that he drank every day. He also stated that his wife “drinks plenty too.”

Mrs. Whiteley, on the other hand, urged that her absorption in bridge was produced by her need to distract herself from the problems caused by Mr. Whiteley’s drinking.

The fault required to form the basis of a mutual fault separation is conduct constituting an independent ground for separation, but it is not necessary for spouses to be guilty of equal fault as long as each spouse is found to have committed acts which constitute grounds for separation; additionally, the fault must be an independent contributing cause of the separation. Watson v. Watson, 442 So.2d 1310 (La.App. 3 Cir.1983), writ denied 445 So.2d 450.

[1131]*1131Where neither party establishes independent entitlement to a separation, the standard for a mutual fault separation is not met because, for a separation to be granted on that ground, each party must be guilty of conduct sufficient to constitute an independent ground for separation. Jenkins v. Jenkins, 441 So.2d 507 (La.App. 2 Cir.1983), writ denied 444 So.2d 1228.

A party seeking a separation must prove his right to the separation by a preponderance of the evidence; the trial court’s finding of fact on the issue of fault is entitled to great weight and will not be disturbed on appeal absent a finding of manifest error. Jenkins v. Jenkins, supra.

Viewing the evidence as a whole, we find no error in the district court’s determination that Mrs. Whiteley’s conduct was not sufficient to find her at fault under C.C. art. 138. As the court stated, neither party was blameless. The court’s finding that neither party established an independent ground for the breakup of the marriage is a factual determination and not clearly wrong. Accordingly, the district court correctly refused to grant a fault-based separation.

LSA-C.C. art. 138 sets forth ten grounds for separation from bed and board. The following portions are relevant here:

“Separation from bed and board may be claimed reciprocally for the following causes:
* * * * * *
“3.

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

Related

Batiste v. Batiste
548 So. 2d 14 (Louisiana Court of Appeal, 1989)
Penning v. Bouzon
524 So. 2d 1 (Louisiana Court of Appeal, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
490 So. 2d 1128, 1986 La. App. LEXIS 7198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiteley-v-whiteley-lactapp-1986.