Bynum v. Bynum

• Decision Date: 28 May 1974
• Docket Number: No. 12326,12326
• Citation: 296 So.2d 382
• Parties: John Paul BYNUM, Plaintiff-Appellee, v. Dorris Louise Ward BYNUM, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 382

296 So.2d 382

John Paul BYNUM, Plaintiff-Appellee, v. Dorris Louise Ward BYNUM, Defendant-Appellant.

No. 12326.

Court of Appeal of Louisiana, Second Circuit.

May 28, 1974.

Rehearing Denied July 1, 1974.

Goode & Goode, by D. F. Overdyke, III, Shreveport, for defendant-appellant.

Johnston, Thornton & Pringle, by R. Perry Pringle, Shreveport, for plaintiff-appellee.

Before AYRES, BOLIN, and WILLIAMS, JJ.

AYRES, Judge.

This action by a husband against the wife for a divorce is predicated upon charges of adultery directed against the wife with an alleged male companion (whose name, however, was not disclosed in plaintiff's petition) between the hours of 11:35 p.m. on November 10, 1972, and 5:00 a.m. on November 12, 1972, in a motel in Birmingham, Alabama. To each of the pertinent allegations of plaintiff's petition, defendant entered a denial.

After trial, there was judgment decreeing a divorce. From that judgment, the defendant prosecutes this appeal.

Plaintiff and defendant were married in El Reno, Oklahoma, on June 5, 1953, after which, in 1970, they moved to establish their matrimonial domicile in Shreveport, Caddo Parish, Louisiana. Four children were born of their marriage--three sons, whose ages are now 20, 19, and 17 years, respectively, and a daughter whose present age is 16 years.

On this appeal, the appellant specifies as error the action of the trial court: (1) in holding that plaintiff sustained the burden of proof imposed upon him by law and established that she committed adultery; (2) in admitting in evidence an unverified telphone bill; (3) in requiring the alleged co-respondent to answer certain incriminating questions; and (4) in overruling exceptions and pleas of res judicata, judicial estoppel, collateral estoppel, and no cause of action.

With reference to the fourth of these specifications, it may be pointed out that the pleas and exceptions are allegedly based upon a separation proceeding between the parties in which a judgment decreeing a separation a mensa et thoro in her favor had become final prior to the institution of this action predicated on acts of adultery allegedly committed before the institution of the separation proceeding. In view of the result reached in this action with respect to the predominant questions involved on the merits of this controversy, it is deemed unnecessary that any consideration be given to these pleas and exceptions.

For the same reasons, it is likewise deemed unnecessary to discuss appellant's third specification of error, the merits of which have no bearing upon the outcome of the present action.

The first specification of error is directed to the sufficiency of the evidence in the record to establish appellant's commission of adultery or whether there is, indeed, evidence in the record from which the commission of such acts can be concluded. Of particular concern is the question as to whether the evidence establishes that the woman with Dr. Mullen in Birmingham was Mrs. Bynum.

Only three witnesses were presented by plaintiff: Pat Leroy Eddings, a detective, Dr. Andrew J. Mullen, the latter disclosed as the alleged corespondent, and plaintiff, Bynum, himself.

Eddings testified he had been employed in November of 1972 by Mrs. Betty Mullen, wife of Dr. Mullen, to observe Dr. Mullen's activities in view of her intention to obtain a divorce from him. On November 11, 1972, Eddings and Mrs. Mullen flew to Birmingham where they were joined by another detective whose name was given as George Palmer. Their surveillance of the room in which Dr. Mullen spent the night covered a period from approximately 5:16 p.m. on November 11, 1972, until 5:00 a.m. the following morning. Eddings testified that at about 9:00 p.m., Dr. Mullen and a female returned to the room carrying what appeared to be some food; that they remained in the room, and the next time he saw the female was at 4:12 a.m. on November 12, when she opened the door and peered outside, apparently for the purpose of checking on weather conditions. She was said to have had curlers in her hair and to have been wearing a bathrobe. About 5:00 a.m., Dr. Mullen came out of the room with a suitcase and, in a few minutes, the female followed him, whereupon Eddings, Mrs. Mullen, and Palmer walked out and confronted Dr. Mullen. Mrs. Mullen spoke to her husband who, Eddings said, appeared to stand in front of the woman.

The lights were subdued on the occasions Eddings claimed to have observed the woman. His observations were directed primarily to Dr. Mullen rather than to his companion, because his primary duty was to Mrs. Mullen who was seeking evidence upon which a divorce from her husband might be obtained.

The instant case was tried in the district court on November 15, 1973. Detective Eddings does not claim to have seen the woman who was with Dr. Mullen from the time he was in Birmingham until the day before the trial. On that date, Eddings saw a woman in the district courtroom who he claimed was the woman he had seen with Dr. Mullen in Birmingham. He was informed by plaintiff's counsel that this woman was Mrs. Bynum. However, he did not, of his own knowledge, know that she was Mrs. Bynum. Otherwise, the record is barren of testimony by anyone who knew Mrs. Bynum that she was the woman whom Eddings saw in Birmingham or in the courtroom.

We are impressed that Eddings' experience in investigating matters of this kind was, according to his own testimony, very limited. During the last five years, he stated, the instance in Birmingham was the only domestic matter that he had investigated--not more than two. This was not his particular type of work. His training was that of an investigator in the United States military service.

Nor are we impressed with the accuracy of the witness' observations, which were lacking in important details. He observed no distinguishing physical characteristics of the female in question, nor the color of her eyes, nor her eyebrows or ears. The witness did testify, however, that the woman did not wear glasses. He did not know if she wore contact lenses, nor if her eyes blinked excessively, which was said to be indicative of that fact. Nor did he observe whether she limped in her walk or know whether she wore a wig. The total elapsed time over which the witness observed the woman in Birmingham was probably, so he stated, two-and-a-half or three minutes. The woman's age was estimated by the witness to be in the late 20s, although the oldest of Mrs. Bynum's four children was approaching the age of 20 years. No observation was made as to the woman's height.

The evidence, when considered as a whole, fails to support plaintiff's claim by the requisite preponderance that the female with Dr. Mullen in Birmingham on the occasions and dates referred to was Mrs. Bynum. The establishment of that fact was crucial to plaintiff's entitlement to recovery. The most that can be said in support of plaintiff's position is that he established a mere possibility that the person involved was Mrs. Bynum.

The rule is incontrovertibly established in the jurisprudence of every appellate court of this State that a plaintiff in civil matters such as this bears the burden of proof. He is required to establish his claims to a legal...