Allen v. Allen

• Decision Date: 12 December 1994
• Citation: 648 So.2d 359
• Parties: 94-1090 La
• Court: Louisiana Supreme Court

Page 359

648 So.2d 359

94-1090 La. 12/12/94

Charles Harold ALLEN v. Mildred Joe Neal ALLEN.

No. 94-C-1090.

Supreme Court of Louisiana.

Dec. 12, 1994.

Rehearing Denied Jan. 26, 1995.

Tommy J. Adkins, Barham, Adkins & Tatum, for applicant.

Bobby L. Culpepper, for respondent.

[94-1090 La. 1] WATSON, Justice. ¹

The question presented is the type of fault which will bar a needy spouse from permanent alimony. LSA-C.C. art. 112.

FACTS

The Allens were married in Lincoln Parish (Ruston) on December 6, 1986, and made their home in Jackson Parish (Jonesboro). On October 28, 1991, Charles Harold Allen left the matrimonial domicile and was [94-1090 La. 2] subsequently granted a no-fault divorce under the provisions of LSA-C.C. art. 102. It was stipulated that he could pay reasonable alimony. The trial court found Mildred Allen at fault and denied her permanent alimony.

Prior to their marriage, Mildred Joe Neal was a healthy 42-year-old woman who ran two to six miles every day. As a single parent of three children, she had suffered financially and had filed for bankruptcy in 1977. Charles Harold Allen knew of his wife's many debts when they married. He stated that she "had notes scattered all over." (Tr. 479.)

At the time of their marriage, both parties had grown children: hers were 20, 21 and 26. The couple dated for eighteen months in Ruston and had a harmonious relationship during their first married year.

There was a strong economic disparity between the parties. Charles Harold Allen, a bank president 20 years his wife's senior, had a substantial annual income, ranging from a gross income of $288,149 in 1986 to over $500,000 in 1991. Mildred Allen was employed at the Security First National Bank in Ruston: in 1987, she earned $16,876.76.

In August of 1987, Mildred Allen had gallbladder surgery. She was later treated for bladder problems, a breast lump, severe reflux esophagitis and [94-1090 La. 3] irritable bowel syndrome, which causes periodic loss of body function control. Her testimony was that her marriage deteriorated after her first surgery.

At the time of the marriage, Mildred Allen weighed 126 pounds and wore a size 8. She quit her Ruston job because of health problems in October of 1988. Subsequently, she did volunteer work, much of which she performed at home. By December of 1990, she weighed approximately 100 pounds and was wearing children's sizes.

Mildred Allen's treating doctor for the irritable bowel syndrome, Dr. Chris Rheams, testified in deposition (D-14). Irritable bowel syndrome is a functional illness of the bowel. Hers was a severe disease, probably the worst he has seen. The symptoms include cramps, pain, diarrhea and chronic fatigue. While she has days when she can function, her condition is too unpredictable to make her employable. She also suffers from tachycardia and carpal tunnel syndrome. In his opinion, she is well motivated and not a malingerer. Her irritable bowel syndrome is complicated by emotional stress.

Dr. Rheams advised the Social Security Administration that Mildred Allen was totally disabled but apparently his recommendation was not accepted by that agency. Her claim for Social Security disability benefits was denied, and the denial has been appealed.

[94-1090 La. 4] Mildred Allen's daughter, Tierney Copeland Robertson, was a student at USL when her mother remarried. While she was in school, Tierney also held a job. Charles Harold Allen's tax returns showed her as a dependent. She observed that the marital relationship changed when her mother became ill.

When Tierney married in June of 1990, her stepfather said he would be glad to help with the wedding. However, he subsequently changed his mind, objected to the $8,000 in wedding charges and refused her attempt to repay part of the cost. Charles Harold Allen closely supervised his wife's expenditures: the $8,000 slipped in on a Visa card his wife obtained without his consent. (It was promptly cancelled.)

As her health deteriorated, Mildred Allen became convinced that her husband was involved in extra-marital affairs. She taped telephone calls which indicated a sexual interest in two women. The tape recording was introduced into evidence as D-9.

When Charles Harold Allen was deposed, he refused to answer questions as to extra-marital affairs with the two women and a rule to compel answers was filed. In answer to the rule to compel, and again at trial, he testified that [94-1090 La. 5] he did not remember whether he had extra-marital affairs with the two women or anyone else during his marriage to Mildred Allen.

Charles Harold Allen kept detailed financial records. The money spent for and on behalf of his wife is reflected in those records. While he was sometimes generous, he kept close control over her expenditures. In 1987, the money given to Mildred Allen and for her accounts totaled $35,974.65, itemized as follows:

                CASH TO MILDRED 1987                                                 $18,232.13
                CHECK TO KAY TERRY FOR MILDRED                                           600.00
                PAID NOTES TO SECURITY FIRST NAT'L FOR MILDRED ON CAR & 2ND MTG. ON   17,142.52
                  HOME
                                                                                     ----------
                                               TOTAL                                 $35,974.65
                

In 1988, the expenditures were reduced to $14,014.98 and $845.04 of that sum was for medical expenses. In 1989, the sums were larger, totaling $22,934.18, including $726.26 in medical expenses and substantial payments for Tierney's expenses at USL. Excluding the daughter's expenses and medical expenses, Charles Harold Allen spent a little over $19,000 on his wife in 1989. During the following year, 1990, he spent $1,330 for their joint counseling, gave her $17,500 in living expenses and paid an additional $10,000 for her children and medical expenses.

[94-1090 La. 6] In 1991, the year in which Charles Harold Allen left his wife, he gave her checks totaling $13,550 and paid accounts of $5,323.14. Many of the accounts were for medical expenses, which totaled $2,804.66.

Mildred Allen was discharged in bankruptcy on June 9, 1992: the debts which were discharged totaled $34,348.

The trial court found that Mildred Allen was not free from fault because of the following:

1. Having conflicts with Plaintiff because Plaintiff made donations to non-profit or charitable groups.

2. Making thousands of dollars of unauthorized credit card charges against Plaintiff's account.

3. Criticizing Plaintiff to Plaintiff's children.

4. Mishandling financial affairs, leading to Defendant's personal bankruptcy.

5. Complaining that Plaintiff did not do enough financially for Defendant's children.

6. Complaining that Plaintiff bought Defendant a "factory" car rather than a new car.

7. Categorizing Plaintiff's hometown and home area, to Plaintiff and others, as "the hell hold of America."

8. Arguing "back and forth" with Plaintiff, for a long period of time.

The trial court decided that these deficiencies added up to legal fault.

[94-1090 La. 7] Among the charitable donations Mildred Allen criticized (Item 1) was a 1986 donation of $55,620 to the Jonesboro United Methodist Church. She testified that she was hurt about having no knowledge of the gift until told by other people.

The court of appeal focused on Mildred Allen's financial situation in determining that Mildred Allen's fault contributed to the dissolution of the marriage. The court of appeal affirmed the trial court. Allen v. Allen, 642 So.2d 202 (La.App. 2d Cir.1993). A writ was granted to review the judgment of the court of appeal. 94-1090 (La. 7/1/94), 641 So.2d 533.

LAW

Marriage is a civil obligation, a contract between two parties. LSA-C.C. art. 86. The mutual duties of married persons are fidelity, support and assistance. LSA-C.C. art. 98.

Although no-fault divorce is now available, freedom from fault is still necessary for permanent alimony. LSA-C.C. art. 112. "The elimination of fault as a prerequisite for divorce left open the question of the financial allocations to be made upon divorce." 65 Tul.L.Rev. 953 at 977.

[94-1090 La. 8] Some states preclude consideration of marital misconduct in post-divorce financial allocations. This accords with the policy basis for permanent alimony: preventing divorced spouses from becoming state wards. ²

LSA-C.C. art. 112 A(1) provides, in pertinent part:

When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income.

Prior to the repeal of Civil Code article 138, fault was determined by analogy to the grounds for separation in that article, which included adultery, habitual intemperance, excesses, cruel treatment or outrages, making living together insupportable, and abandonment. With the repeal of LSA-C.C. art. 138, the only statutory fault measure is the grounds for divorce in LSA-C.C. art. 103, i.e., adultery or a felony sentence punishable by death or hard labor. ³

Since the statutory law does not specify fault which would deny permanent alimony, legal fault must be determined according to the prior jurisprudential criteria. See Lagars v. Lagars, 491 So.2d 5 (La.1986), for an [94-1090 La. 9] analysis of those criteria. The jurisprudence specifies the conduct which may be considered legal fault.

An association which implies adultery naturally brings on marital discord. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The suspicion of adultery causes the break-up and not the reaction. A spouse who reacts should not be precluded from receiving alimony solely because of his or her response. Abele v. Barker, 200 La. 125, 7 So.2d 684 (1942); Brewer v. Brewer, 573 So.2d 467 (La.1991).

Petty quarrels between husband and wife do not rise to...