Berry v. Berry

• Decision Date: 04 September 1974
• Docket Number: No. 12397,12397
• Citation: 300 So.2d 246
• Parties: Dana Gay Seal BERRY, Plaintiff-Appellant, v. Kenneth Dale BERRY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 246

300 So.2d 246

Dana Gay Seal BERRY, Plaintiff-Appellant, v. Kenneth Dale BERRY, Defendant-Appellee.

No. 12397.

Court of Appeal of Louisiana, Second Circuit.

Sept. 4, 1974.

Rehearing En Banc. Denied Oct. 1, 1974.

Writ Granted Nov. 15, 1974.

Booth, Lockard, Jack, Pleasant & LeSage by H. F. Sockrider, Jr., Shreveport, for plaintiff-appellant.

Whitehead & McCoy, by C. R. Whitehead, Jr., Natchitoches, for defendant-appellee.

Before AYRES, PRICE and HALL, JJ.

HALL, Judge.

Plaintiff, Dana Gay Seal Berry, alleging she is domiciled in Bossier Parish, filed suit in the Twenty-Sixth Judicial District Court for Bossier Parish, against her husband, Kenneth Dale Berry, seeking a separation from bed and board on the grounds of cruel treatment. The defendant filed an 'Exception to Jurisdiction and Venue' alleging he is domiciled in Natchitoches Parish, the last matrimonial domicile was Natchitoches Parish, and that plaintiff left the matrimonial domicile through no fault of his and, therefore, cannot establish a separate domicile in Bossier Parish. After trial of the exception, it was sustained by the district court which commented that this appeared to be a 'Mexican standoff' and that the wife had not sustained the burden of proving by a preponderance of the evidence that she left the matrimonial domicile in Natchitoches Parish for legal cause. Plaintiff's suit was dismissed and she appealed.

The evidence consists of the rather brief testimony of the plaintiff and the defendant. There is little if any conflict in their testimony which is summarized in the following paragraph.

Plaintiff and defendant were married on June 2, 1973 in Shreveport and established their matrimonial domicile in Natchitoches where they lived together until July 11, 1973, a period of about forty days. After three or four weeks they began to have arguments about sex and other matters. On July 10, they had an argument after receiving a phone call from the lawyer who had handled defendant's divorce concerning some problem about the validity of the divorce. They also had an argument about her refusal to have sexual relations with him. The defendant drank two beers that night. While in the bedroom together he picked up a loaded shotgun and made some statement about ending it all. There is no evidence he pointed the shotgun at plaintiff or made any direct threat against her. He left the room and remained out of the room for awhile. He then came back into the bedroom and unloaded the gun and said something to the effect that she was not worth it. Defendant was depressed and emotionally upset over their problems. He then went to sleep and she left the room, made some coffee and stayed up all night. Plaintiff was fearful for her own life and that of her husband. The next morning defendant asked plaintiff if she wanted to go home, she called her parents, they came and got her and helped her move back to Bossier City. Defendant called her that night and on numerous subsequent occasions asking her to come back.

Under LSA-C.C.P. Art. 3941, an action for separation from bed and board must be brought in a parish where either party is domiciled or in the parish of the last matrimonial domicile. The venue provided in this article may not be waived and a judgment rendered by a court of improper venue is an absolute nullity. The venue requirement of this article, therefore, equates to jurisdiction.

LSA-C.C. Art. 39 provides that a married woman has no other domicile than that of her husband and LSA-C.C. Art. 120 provides that the wife is bound to live with her husband and to follow him whereever he chooses to reside. It is well established, however, that a wife may acquire a domicile separate from that of her husband where she is abandoned or is compelled by reason of ill treatment to leave her husband. Bush v. Bush, 232 La. 747, 95 So.2d 298 (1957); Juneau v. Juneau, 227 La. 921, 80 So.2d 864 (1955); Bruno v. Mauro, 205 La. 209, 17 So.2d 253 (1944); Zinko v. Zinko, 204 La. 478, 15 So.2d 859 (1943); McGee v. Gasery, 185 La. 839, 171 So. 49 (1936); Lepenser v. Griffin, 146 La. 584, 83 So. 839 (1920); Succession of Lasseigne, 143 La. 1095, 79 So. 873 (1918); George v. George, 143 La. 1032, 79 So. 832 (1918); State v. Fick, 140 La. 1063, 74 So. 554 (1917); Stevens v. Allen, 139 La. 658, 71 So. 936 (1916); Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891); Authement v. Authement, 254 So.2d 630 (La.App.3d Cir. 1971); Hickman v. Hickman, 218 So.2d 48 (La.App.3d Cir. 1969); Landry v. Landry, 192 So.2d 237 (La.App.4th Cir. 1966).

The rule and the exception were concisely stated in Landry v. Landry, supra:

'It is too well settled to require citation of authority that a married woman can have no other domicile than that of her husband except in those cases where the husband's misconduct compels or justifies her in leaving him and establishing a separate domicile elsewhere. Therefore when a wife sues her husband for separation from bed...