Bernard v. Broussard

• Decision Date: 17 April 1961
• Docket Number: No. 222,222
• Citation: 128 So.2d 787
• Parties: Philip L. BERNARD, Plaintiff and Appellant, v. Leonie BROUSSARD, Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 787

128 So.2d 787

Philip L. BERNARD, Plaintiff and Appellant, v. Leonie BROUSSARD, Defendant and Appellee.

No. 222.

Court of Appeal of Louisiana, Third Circuit.

April 17, 1961.

Babineaux & Huval, by Allen Babineaux, Lafayette, for plaintiff-appellant.

Dugas, Bertrand & Smith, by Lucien C. Bertrand, Jr., Lafayette, for defendant-appellee.

Before CULPEPPER, HOOD and SAVOY, JJ.

CULPEPPER, Judge.

In this suit for absolute divorce on the grounds that the spouses have continuously lived separate and apart for more than two years, the defendant wife admits the separation but denies that it was caused by her fault and she therefore prays for alimony pendente lite and for permanent alimony in the sum of $150 per month. The lower court found that the wife was without fault and awarded alimony pendente lite in the sum of $25 per month, said amount to be continued as permanent alimony after final judgment of divorce. From this judgment only the plaintiff, husband, has appealed.

The facts show that plaintiff and defendant were married in 1929 and established their matrimonial domicile in the Parish of Lafayette. In June of 1955, plaintiff and defendant separated and in June of 1957, plaintiff filed a previous proceeding for divorce in which defendant filed a reconventional demand and obtained a judgment for alimony pendente lite. A note of evidence taken in the previous proceeding on January 1, 1958, and filed in evidence in the present case, shows that the plaintiff was found in contempt of court and sentenced to serve ten days in jail for failure to pay the alimony pendente lite awarded. After his release from jail plaintiff sought a reconciliation with defendant who was then living with her married daughter. Defendant agreed to the reconciliation and they lived together for three days beginning about February 17, 1958 in the daughter's house in the city of Lafayette. Then plaintiff and defendant moved to a furnished apartment on Louis Street where they stayed for two weeks. Defendant testified that one morning plaintiff came in and stated that he had rented a house on Vermillion Bayou and asked her to move again. She testified that she went with plaintiff to see the house and found that the only furniture therein consisted of a roll-a-way bed in each of the two bedrooms, a heater in each room, a table and four chairs and an old stove. She particularly noted that there was no icebox and so she told the plaintiff that she was going back to the furnished apartment on Louis Street where the rent was paid for two more weeks until they could acquire some more furniture for the house. While still at the house she gave him a list of groceries to buy and plaintiff testified that when he returned from purchasing the groceries his wife had locked up the house and left with the key. It is his testimony that he put a new lock on the outside door and that he also put a 'Yale lock' on the door between the two bedrooms. Plaintiff's explanation for placing a lock on the door of his bedroom is that he had all of his clothes and personal belongings there. Defendant's explanation is that when they first went to the house plaintiff told her that one bedroom was his and the other was hers and that he wanted it understood that he could come and go as he pleased.

Defendant testified that the day after their first visit to the house she went back with her sister-in-law (sister of the plaintiff) and on arrival at the house the plaintiff ordered his sister off the premises and stated that he was not going to allow any members of the family of plaintiff or defendant to visit there. Plaintiff admits ordering his sister off the premises, but denies saying that no other members of the family would be allowed to visit. Plaintiff admits that he had not yet acquired an icebox for the house and actually the record does not reveal that he ever acquired one. Plaintiff also admits that he did not give the defendant a key to the house or to the bedroom until approximately two weeks after he had moved to the house he sent defendant a key by a deputy sheriff.

The above is the essence of the pertinent facts, regarding the issue of fault. The record discloses other contradictory testimony which we do not deem it necessary to set forth here in detail. It is the contention of the plaintiff that defendant has failed in her marital obligation to live with her husband and to follow him wherever he chooses to reside. LSA-C.C. art. 120. It is the contention of the defendant that by reason of the excesses, outrages, and cruel treatment of plaintiff toward her their living together was rendered insupportable within the meaning of LSA-C.C. art. 138 and she therefore had a right to put an end to the matrimonial relation and was not obligated under Article 120 of the LSA-Civil Code to live with her husband.

The applicable law has been concisely set forth by our Supreme Court in the recent case of Vinot v. Vinot, 239 La. 587, 119 So.2d 474 in which the court held as follows:

'Under the provisions of Article 160 of our Civil Code the wife in a case such as this is entitled to alimony if she has not been at fault. In construing this article this court has consistently held that the wife carries the burden of establishing that she was without fault. Vicknair v. Johnson (Vicknair), 237 La. 1032, 112 So.2d 702, and authorities there cited. In the instant case it is conceded that it was the wife who left the matrimonial domicile, and therefore she cannot be said to have been free from fault unless she can establish that her husband's treatment of her rendered it unbearable for her to live with him. Richards v. Garth, 223 La. 117, 65 So.2d 109. Where the husband's fault provokes the wife into terminating the marital relationship, she is considered to be herself free from fault within the meaning of Article 160 for the purposes of awarding alimony. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707.'

In the case of Bush v. Bush, 232 La. 737, 95 So.2d 298, 299, the court held as follows with reference to the general rule that a wife must follow her husband wherever he chooses to reside:

'With further reference to such general rule and the exception thereto the following observations of this court are pertinent: 'The marital obligation imposed by Article 120 of the...