Bundick v. Dennison

• Decision Date: 12 December 1985
• Docket Number: No. 84-867,84-867
• Parties: Dennis BUNDICK, Plaintiff-Appellee, v. Linda DENNISON, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 458

480 So.2d 458

Dennis BUNDICK, Plaintiff-Appellee, v. Linda DENNISON, Defendant-Appellant.

No. 84-867.

Court of Appeal of Louisiana Third Circuit.

Dec. 12, 1985.

Rehearing Denied Jan. 16, 1986.

Fred H. Belcher, Jr., Baton Rouge, for defendant-appellant.

Dennis Bundick, Abbeville, for plaintiff-appellee.

Before DOMENGEAUX, STOKER and KNOLL, JJ.

KNOLL, Judge.

Linda Dennison appeals the trial court's judgment granting her a divorce a vinculo matrimonii against her husband, Dennis Bundick, contending that the trial court erred in finding mutual fault and in reducing the child support for their two minor children from $950 per month to $400 per month per child. We amend and affirm finding: (1) no manifest error in the trial court's determination of fault; and (2) the record does not support a sufficient change of circumstances to modify the original child support award.

FACTS

Linda Dennison and Dennis Bundick physically separated in December 1983 after eleven years of marriage. Two children were born of the marriage, namely Brady and Lauren, ages twelve and five respectively. In January 1984, Bundick filed a petition for separation based on his wife's alleged cruel treatment. Dennison filed an answer denying the allegations of cruel treatment and reconvened seeking an immediate divorce based on Bundick's post-separation adultery. Pending trial of the merits, judgment on the rules nisi awarded Dennison the temporary care, custody and control of the minor children, and ordered Bundick to pay $950 per month child support, plus maintaining hospitalization insurance coverage for the minor children. Prior to trial the parties stipulated that Dennison was entitled to a divorce based on Bundick's adultery. After trial on the merits, the court found neither party was free from fault within the meaning of LSA-C.C. Art. 160 and reduced Bundick's child support obligation from $950 per month to $400 per month per child, with a continuing obligation to maintain hospitalization insurance coverage for the two minor children. The court further ordered implementation of a joint custody plan.

MUTUAL FAULT

C.C. Art. 160 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 ..."

When a spouse claims entitlement to permanent alimony, he or she bears the burden of proving freedom from fault in the breakup of the marriage. The meaning of fault within the context of C.C. Art. 160 is not synonymous with being totally blameless in the marital discord. Slaughter v. Slaughter, 436 So.2d 1352 (La.App. 3rd Cir.1983). To constitute fault, a spouse's misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Pearce v. Pearce, 348 So.2d 75 (La.1977); Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958).

When determining alimony under C.C. Art. 160, the question of a spouse's fault is a factual issue. Souza v. Souza, 428 So.2d 1204 (La.App. 5th Cir.1983); Pearce v. Pearce, supra. Appellate courts have consistently recognized that a trial court's findings of fact on the issue of a spouse's fault will not be disturbed on appeal unless found to be clearly wrong. The trial judge is accorded much discretion in the resolution of domestic litigation and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge, having observed the demeanor of the witnesses, is in a better position to rule on their credibility. The factual findings of the trial court are, therefore, given very substantial weight on review. Souza, supra; Pearce, supra.

In the instant case the trial court evaluated the aggregate circumstances and, based upon the evidence, found both parties at fault in causing the initial separation. Since Dennison is the only party seeking alimony, we need only determine whether the trial court committed manifest error in finding her sufficiently at fault to preclude a permanent alimony award.

Bundick contends that Dennison's cruel treatment consisted of: a pattern of mental harassment, nagging and griping; failure to maintain their home in a neat and clean manner; and verbal abuse and open criticism of him to others, all of which caused him mental anguish and great distress. Dennison contends that although she may have been "at fault" in the generic sense of the word, her fault was not of the magnitude contemplated by C.C. Art. 160 sufficient to deprive her of permanent alimony.

In its oral reasons for judgment, the trial court elaborated upon the facts which it considered mutual fault. We quote the court's reasons, that pertain to Dennison since her freedom from fault is at issue:

"In considering the initial separation, I have watched the witnesses. I have listened to them, particularly observing the temper of the voice, the manner of testifying; and I am applying that factor of credibility in this ruling.

"Doctor Calamia testified that he could not certify Mrs. Bundick [Dennison] was disabled. That he felt that she could work. That she had very bad days. That her condition would permit her to do homemaking tasks. And he made reservation with periods of flare.

"Mr. Bundick testified that, with respect to the initial separation, that Mrs. Bundick was a very bad housekeeper. That even with psychological counseling, there was no improvement. He further testified that Mrs. Bundick did have good relation with the children, except for a certain lack of patience, citing on one (1) occasion, according to his testimony, that Brady, the eleven-year-old, had a handprint on his face where Mrs. Bundick had struck him. That after work, on a farely [sic] regular basis, he would have to do housework. That Mrs. Bundick still fussed because he had [not] done it right, or had not done enough.

"Although there was an accident,--in February, 1978, I think the date was--that whatever she wanted to do, she did and whatever she did not want to do, she did not do. For a while she worked at the drugstore. They had received certain funds as a result of the accident. From those funds, Mrs. Bundick herself has admitted that she gave her father twenty thousand dollars ($20,000.00), paid eighteen thousand dollars ($18,000.00) for a private investigator, which, of course, was her right.

"That Mr. Bundick further testified that Mrs. Bundick would become upset when he did not include her in all his business meetings, his business meals, things of this nature. That she wanted him to come home early and stay at home for the purpose of doing housework. That she constantly gave him a hard time. That he tried to change the situation, but he could not. That their child had excessive absences which might, as of that date,--and I have not heard it verified at this point today,--[have] caused him to repeat a school grade.

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"Now Mr. Bundick's testimony with respect to the inadequate and unacceptable housekeeping practices was substantiated by the testimony of Emily Toups, who testified that she was hired to do housework for the Bundicks one (1) day a week, on Friday. That she worked there two (2) or three (3) months, April and May. That she and her sister-in-law would do the job together. She testified, substantiating what Mr. Bundick says, that the house was always messy--messed up when she came. Saying, in effect, that 'It was pretty bad every time we'd go.' Pretty bad, compared to other homes worked in. There were unwashed dishes, some even with food still on them. That the house wasn't really dirty though. It was not picked up.

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"The next witness, Mrs. Mary Rowe, the wife of Jan Rowe, the law partner of Mr. Bundick, testified that the house was a messy house, that it was not clean nor orderly. That when persons arrived and were expected, it was neat. Normally, on a girl-to-girl visit, she would find the house messy. That Mrs. Bundick did complain to her about Mr. Bundick. That Mrs. Bundick indicated she felt the housework was fifty percent (50%) the responsibility for Mr. Bundick. She said that Mrs. Bundick said that she was not going to do the housework, that she was tired, she just didn't feel like doing it and was not going to do it.

"Sometimes, Mrs. Bundick would get her on the phone for a long time and complain. Mrs. Bundick told her that she apparently felt that a husband had things to do at home, before he went off to golf on the days that they were golfing--games played by the husband; and that Mrs. Bundick became upset because he would play on Sunday, but would not go to church. That Mrs. Bundick was greatly involved in church.

"Mrs. Bundick complained about Mr. Bundick's income. That the testimony about the bedspread incident. That Mrs. Bundick bought a bedspread for two hundred and fifty dollars ($250.00), where Mr. Bundick made her return, which upset Mrs. Bundick.

"Mrs. Bundick has been buying clothes and jewelry after Mr. Bundick left, saying that she would continue to dress in the way she was accustomed to. Mrs. Rowe said that Mrs. Bundick did not do this when she was with Mr. Bundick, ...

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"That Mrs. Bundick, according to this witness, would oversleep. And when the weather was bad, she would not take the children to school. That, on occasion, on the telephone, that Mrs. Bundick would say she was still in her nightgown, at a time when one (1) is normally not--when one (1) is normally no longer in night dress. That Mrs. Bundick would call Mr. Bundick to bring home supper, that she was too tired to cook.

"Mrs. Rowe testified that she never saw Mr. Bundick mistreat Mrs. Bundick. Mrs. Bundick said that she did not like to spank the son because she is afraid she'd lose control. And that one (1) time, Mrs. Bundick complained that she had beat the son with the fly swatter until her...