96-159 La.App. 5 Cir. 11/26/96, Brehm v. Brehm

• Decision Date: 26 November 1996
• Citation: 685 So.2d 377
• Parties: 96-159 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 377

685 So.2d 377

96-159 La.App. 5 Cir. 11/26/96

Carmela C. BREHM v. Milton L. BREHM, Jr.

No. 96-CA-159.

Court of Appeal of Louisiana Fifth Circuit.

Nov. 26, 1996.

Writ Denied Feb. 7, 1997.

Pat M. Franz, Metairie, for Defendant/Appellant.

Jana E. Smith, New Orleans, for Plaintiff/Appellee.

ON REHEARING

[96-159 La.App. 5 Cir. 2] DALEY, Judge.

In this proceeding for permanent alimony, appellant Milton Brehm appeals the trial court's finding that his wife was free from fault in the breakup of their marriage ¹. On appeal, he cites as error the trial court's failure to find that she either abandoned the marital domicile, or that she was guilty of post separation fault. After thorough review of the record and applicable law, we find that the trial court erred in finding Mrs. Brehm free from fault, and reverse the trial court's judgment.

The parties, Mr. Brehm and Carmela Brehm, were married for approximately 30 years, and had four daughters, all of whom were of majority at the time of this divorce suit. The record shows that Mrs. Brehm left the matrimonial domicile in [96-159 La.App. 5 Cir. 3] August, 1993. She filed a Rule to Show Cause why Divorce Should Not be Granted and Motion for Permanent Alimony on January 13, 1994. A judgment of divorce was granted on October 24, 1994, reserving the issue of alimony. The trial on alimony took place on August 28-31, 1995. The trial court found that both parties were free from fault in the marriage's breakup. The trial court issued written reasons for judgment, which read as follows:

Under the provision of Louisiana Civil Code Article 112, the spouse who seeks alimony after divorce must be free of fault in the breakup or dissolution of the marriage. Therefore the issues regarding freedom from fault must be an initial determination in these proceedings and prior to an award of permanent alimony....

From testimony and evidence presented at trial, the marriage appeared to be a normal and healthy one during the first ten years. However, the testimony varies regarding the stability of the marriage during its later years.

On one hand there is testimony that Mr. Brehm was a very controlling individual who placed severe limitations on his wife, insofar as things she could and could not do within their own home. There is further testimony that Mrs. Brehm suffered from constant verbal abuse by her husband as well. And that her husband had drawn an imaginary line in their marital bed which she was forbidden to cross. Overall the testimony suggests that in August of 1993, Mrs. Brehm had reached the breaking point where she could no longer live under such conditions. She had in effect reached the point where she had developed a "Somatiform [sic] Disorder" which affected her mental and physical well being. This condition ultimately forced her to leave the marital domicile according to her testimony.

On the other hand there is testimony that early in the marriage, Mr. Brehm was told by his wife that she no longer loved him. Other testimony suggests that the parties had no visible or unusual problems during the marriage. The parties exercised by walking together and engaged in other various activities together. Their marriage appeared to be a happy and ideal one up until the day Mrs. Brehm left the matrimonial domicile in August of 1993. Although she had previously left the home in July of 1993, she returned within twenty-four hours of leaving.

There is further testimony that during her August departure, Mr. Brehm nor their children knew her whereabouts nor understood her reason for leaving the matrimonial domicile so suddenly. This unannounced departure caused Mr. Brehm to undergo severe stress as a result of not knowing where his wife had gone.

Upon her brief return to the family home, Mrs. Brehm proceeded to break all of the family china and set her wedding dress on fire. The expert testimony suggests that this type of behavior was a symbolic act of seeking release and relief from "marital maladjustment".

This Court finds it inconceivable that the symptoms which were manifested by Mrs. Brehm, according to expert testimony, resulted from a healthy or normal marriage. Obviously, there was a deterioration that took place during the course of this marriage. The Court is unable to determine [96-159 La.App. 5 Cir. 4] from the evidence and testimony presented, if the breakup of the marriage is the fault of either of the parties of if perhaps it is merely the result of the everchanging roles, responsibilities, and expectations of spouses who grow apart rather than together as a basic unit of our society.

Therefore, it is the finding of this Court that the defendant, Milton L. Brehm, Jr. as well as the plaintiff, Carmela C. Brehm, are free of fault in causing the dissolution of the marriage.

The appellant argues that the court should have found that Mrs. Brehm abandoned the matrimonial domicile in August of 1993, and was therefore at fault in the marriage's breakup. The appellant further contends that her acts of breaking the china and setting her wedding dress on fire were acts of post-separation cruelty, constituting fault sufficient to preclude her entitlement to permanent alimony. In her appellate brief, Mrs. Brehm argues that any actions by her that would constitute fault should be excused by her mental condition at the time of her departure. She does not appeal the court's finding that Mr. Brehm was free from fault.

In actions for alimony, much discretion is vested with the trial court's evaluation of evidence on the basis of the credibility of witnesses. Mabry v. Mabry, 522 So.2d 699 (La.App. 5 Cir.1988).

ABANDONMENT

It is undisputed that Mrs. Brehm left the matrimonial domicile in August of 1993 and refused to return, and has in fact never returned to live there.

Abandonment consists of the spouse's withdrawal from the common dwelling without lawful cause, and that spouse's constant refusal to return. Caldwell v. Caldwell, 95-963 (La.App. 5 Cir. 3/13/96), 672 So.2d 944.

Actions that constitute abandonment may be excused by the other spouse's legal fault, such as cruel treatment towards the leaving spouse. Caldwell v. Caldwell, supra; Harrington v. Montet, 93-984 (La.App. 3 Cir. 3/2/94), 634 So.2d 1302; Finch [96-159 La.App. 5 Cir. 5] v. Finch, 479 So.2d 473 (La.App. 1 Cir.1985). Also, actions that would normally be construed as fault are excused when involuntarily induced by a preexisting mental illness. Eppling v. Eppling, 537 So.2d 814 (La.App. 5 Cir.1989), writ den. 538 So.2d 619 (La.1989); Credeur v. Lalonde, 511 So.2d 65 (La.App. 3 Cir.1987), writ den. 513 So.2d 822 (La.1987); Kaplan v. Kaplan, 453 So.2d 1218 (La.App. 2 Cir.1984), writ den. 458 So.2d 484 (La.1984); Bettencourtt v. Bettencourtt, 381 So.2d 538 (La.App. 4 Cir.1980), writ den. 383 So.2d 12 (La.1980); Courville v. Courville, 363 So.2d 954 (La.App. 3 Cir.1978), writ den. 365 So.2d 243 (La.1978).

Giving the trial court's factual finding that neither spouse was at fault in the breakup of this marriage, this court must consider the jurisprudence on the issue of abandonment and answer the following questions. Was Mrs. Brehm justified in leaving the matrimonial home? Did Mrs. Brehm's mental condition excuse her abandonment? Did Mr. Brehm's conduct, while not reaching the level of legal fault as determined by the trial judge, excuse Mrs. Brehm's abandonment?

Mrs. Brehm presented the testimony of Dr. Brian Jordan, a clinical psychologist who treated her in October, 1994. He stated that Mrs. Brehm had been referred to him from a certified clinical social worker who treated her at a local mental health center. Dr. Jordan detailed the history of Mrs. Brehm's marriage as she related it to him. He said that from nearly the beginning of their marriage Mrs. Brehm told him that Mr. Brehm belittled her, made her feel inadequate, never let her express her opinions, and caused her to have low self esteem and depression. Mrs. Brehm related an extensive history of somatic complaints, physical manifestations of pain (gastrointestinal, headaches, muscle aches), for which doctors could find no physical causes. She told him that she had attempted several separations before she finally left, because he always coerced her into returning. Mrs. Brehm also said that [96-159 La.App. 5 Cir. 6] in 1966, she had seen a psychiatrist (Dr. Glynn Ruffin) for depression, because she felt she couldn't meet her husband's expectations. She discontinued treatment at her husband's objections.

As part of his treatment of Mrs. Brehm, Dr. Jordan administered a battery of psychological and personality tests. The test results indicated that the patient was still holding a good deal of anger and resentment towards her husband and the marital relationship, but that her somatic complaints had decreased somewhat since the separation. Dr. Jordan stated that his diagnosis was somatic disorder in partial remission and marital maladjustment. This diagnosis concurred with the diagnosis of Constance Wade, a clinical social worker who treated Mrs. Brehm in Florida. Somatoform disorder is listed in the DSM-3 handbook, a tool of mental health counselors. Dr. Jordan described the somatoform disorder as Mrs. Brehm's reaction to twenty-seven years of a dysfunctional, conflict-ridden marriage with her husband. Dr. Jordan said that Mrs. Brehm felt that she could never please her husband, and as a result, felt that she was a failure and not a good person. He stated that her abrupt departure from the family home, unprepared and unpacked, is very consistent with a woman who felt she had no alternative but to leave. Dr. Jordan said that Mrs. Brehm left the home to preserve her own emotional stability and sanity.

Both parties and their children testified at the hearing. Mrs. Brehm testified that her husband criticized how she performed most household tasks. She testified that he did not like her family and thus the couple did not socialize with them,...