Chapman v. Chapman

• Decision Date: 22 May 1961
• Docket Number: No. 263,263
• Parties: Cliff L. CHAPMAN, Plaintiff and Appellant, v. Lillie CHAPMAN, Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 811

130 So.2d 811

Cliff L. CHAPMAN, Plaintiff and Appellant, v. Lillie CHAPMAN, Defendant and Appellee.

No. 263.

Court of Appeal of Louisiana, Third Circuit.

May 22, 1961.

Rehearing Denied June 13, 1961.

Cavanaugh, Hickman, Brame & Holt, by Frank M. Brame, Lake Charles, for plaintiff-appellant.

Nathan A. Cormie, Lake Charles, for defendant-appellee.

Before TATE, HOOD and CULPEPPER, JJ.

HOOD, Judge.

This is an action for divorce instituted by Cliff L. Chapman against his wife, Lillie Chapman, based on allegations that the parties had been living separate and apart for more than two years. LSA-R.S. 9:301. Defendant filed an answer, admitting that she and her husband had been living separate and apart as alleged. She also filed a reconventional demand in which she alleges that she was without fault, and she demands alimony, attorney's fees and a decree recognizing her as owner of one-half of the community estate.

After trial of the case, judgment was rendered by the district court (1) granting the divorce, (2) dissolving the community and recognizing each of the parties as the owner of an undivided one-half of the community property, 'subject to the debts contracted prior to February 7, 1958,' (3) awarding Mrs. Chapman alimony in the sum of $100 per month, and (4) granting judgment in favor of Mrs. Chapman and against the community for the sum of $500 as attorney's fees. Mr. Chapman, the original plaintiff in the suit, has appealed from that judgment, and Mrs. Chapman has answered the appeal praying that the amount awarded as alimony be increased.

The evidence establishes that the parties to this suit were married on January 21, 1957, and that they have lived separate and apart from each other since February 1, 1958. This suit was instituted on March 10, 1960. Since the parties have lived separate and apart for more than two years, the trial judge correctly decreed an absolute divorce between them.

The trial court also ordered that the community of acquests and gains formerly existing between the parties be dissolved, and decreed that each of the parties be recognized as owners in indivision of an undivided one-half interest in all of the community property, subject to the debts contracted prior to February 7, 1958. (The parties apparently stipulated that the community should be dissolved as of this last mentioned date, being the date on which Mrs. Chapman had previously instituted a separation suit against her husband.) Appellant does not complain of this portion of the trial court's judgment, so it will not be disturbed.

The sole issues presented on this appeal, therefore, relate to the award of alimony and the award of attorney's fees to the wife in response to her reconventional demand.

The evidence shows that both parties had been previously married and that Mr. Chapman was the father of three children, all of whom are issue of a previous marriage. On February 1, 1958, while Mr. and Mrs. Chapman were riding in the latter's car, they became involved in an argument. During the course of this argument, Mrs. Chapman referred to one of Mr. Chapman's children in a derogatory manner, whereupon Mr. Chapman forced his fist against Mrs. Chapman's mouth and made a statement which Mrs. Chapman interpreted as a threat. The evidence shows that although plaintiff did not strike his wife with his fist, he did press it against her mouth with sufficient force to cut her lip and to cause it to bleed. Mrs. Chapman testified that her husband at that time made a statement to the effect that he ought to stop the car and break her neck, while plaintiff testified that he merely said, 'Lady, I don't know what I could do with you.'

Mrs. Chapman then endeavored to strike or scratch her husband, and thereafter she jumped from the car and ran to a nearby house. The car was moving very slowly at the time Mrs. Chapman jumped from it, and the evidence does not establish that she sustained any injuries in leaving the vehicle. Mr. Chapman stopped the car, went to the same house to which Mrs. Chapman had gone and asked her to return home with him. Mrs. Chapman refused to leave the house, so Mr. Chapman left the car at that address and secured a taxi to take him to his home. After remaining in this house for about 30 minutes, Mrs. Chapman then drove her car to her mother's home in Lake Charles and she has lived with her mother since that date. Mr. Chapman has called her on several occasions by telephone in an effort to persuade her to return to live with him, but she has refused to do so.

On February 7, 1958, or six days after the above described incident occurred, Mrs. Chapman instituted a suit against her husband for separation from bed and board, and that suit was still pending at the time the present action for divorce was filed. At the time the divorce suit came up for trial, counsel for both parties stipulated that all issues that were raised in the separation suit would also be at issue in the suit for divorce, so in view of that stipulation counsel for Mrs. Chapman dismissed the separation suit as of non-suit.

The right of a wife to obtain alimony after divorce is governed by the provisions of Art. 160 of the LSA-Civil Code, which provides:

'If the wife who has obtained the divorce has not sufficient means for her maintenance, the Court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income; provided, however, that in cases where, under the laws of this State a divorce is granted solely on the ground that the married persons have been living separate and apart for a certain specified period of time, and the husband has obtained a divorce upon the ground of such living separate and apart, And the wife has not been at fault, then the Court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income.

'This alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage.' (Emphasis added.)

In an action for permanent alimony, following the granting of a divorce in favor of the husband on the ground that the parties have been living separate and apart for two years or more, the burden of proving that the wife has not been at fault rests upon the wife. Hawthorne v. Hawthorne, 214 La. 905, 39 So.2d 338; Davieson v. Trapp, 223 La. 776, 66 So.2d 804; Rogers v. Rogers, 239 La. 877, 120 So.2d 462. It also is settled that the word 'fault,' as employed in LSA-C.C. Art. 160, does not mean merely the wife's engaging in quarrels more or less of a trivial nature, but contemplates conduct or substantial acts of commission or omission on the part of the wife, violative of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart. Felger v. Doty, 217 La. 365, 46 So.2d 300; Creel v. Creel, 218 La. 382, 49 So.2d 617; Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457; Davieson v. Trapp, supra; Rogers v. Rogers, supra; Richards v. Garth, 223 La. 117, 65 So.2d 109; Vinot v. Vinot, 239 La. 587, 119 So.2d 474.

In Felger v. Doty, supra, the following pertinent language was used by the Supreme Court (217 La. 365, 46 So.2d 301):

'Thus, when the bonds of matrimony are dissolved by a judgment of divorce rendered on the grounds that the parties have been living separate and apart for the statutory period, the wife will be denied alimony if she has been at fault. But the word 'fault' as employed in the quoted codal provision, Does not mean merely the wife's engaging in quarrels more or less of a trivial nature; for as said in Armstrong v. Whalen, 161 La. 613, 190 So. 140, such experiences, which momentarily jar and disturb the peace and harmony of matrimony, are not unusual or exceptional as between a husband and his wife. Rather the word 'fault' as so used contemplates Conduct or substantial acts of commission or omission on the part of the wife, violative of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart, the ground for the divorce.' (Emphasis added.)

In the recent case of Vinot v. Vinot, supra, the court said (239 La. 587, 119 So. 475):

'* * *. 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 to terminating the marital relationship she is considered to be herself free from fault within the meaning of Article 160 for the purpose of awarding alimony. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707.' (Emphasis added.)

Also, in Richards v. Garth, supra, with Chief Justice Fournet as organ of the Court, the Supreme Court said (223 La. 117, 65 So.2d 110) 'The fact is that The wife left the matrimonial domicile to go to her mother's home in Virginia and never returned, in violation of her marital duties under our civil law which requires that she 'live with her husband and * * * follow him wherever he chooses to reside'. Article 120 of the L.S.A. Civil Code. Consequently, she cannot claim 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. Pitre v. Burlett, 190 La. 127, 182 So. 123; Alexander v. Jackson, 195 La. 808, 197 So. 510; Lloveras v. Reichert, 197 La. 49, 200 So. 817; Abbott v. Abbott, 199 La. 65, 5 So.2d 504; White v. Broussard, 206 La. 25, 18 So.2d 641; Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43; Reich v. Grieff, 214 La. 673, 38 So.2d 381; Felger v. Doty, 217 La. 365, 46 So.2d 300; and Creel v. Creel, 218 La. 382, 49 So.2d 617.

'In arguing before this court t...