Creel v. Creel
| Decision Date | 06 November 1950 |
| Docket Number | No. 39503,39503 |
| Parties | CREEL v. CREEL. |
| Court | Louisiana Supreme Court |
Edwin F. Gayle, Lake Charles, Benjamin Y. Wolf, New Orleans, for defendant-appellant.
Thos. Arthur Edwards, Lake Charles, for appellee.
Plaintiff brought this suit for an absolute divorce under Act No. 430 of 1938 on the ground that he and defendant had been living separate and apart for more than two years. He alleged that he married defendant at Oakdale, Louisiana on June 3rd 1933; that they moved to Lake Charles in June 1942, where a matrimonial domicile was established and has since been maintained; that they voluntarily separated on November 22nd 1946; that he remained in Lake Charles and defendant went to New Orleans and that they have continuously lived separate and apart since that time.
The defendant answered, admitting the establishment of the matrimonial domicile in Lake Charles, but denied that she and plaintiff had been living separate and apart for two years. She averred that, following a previous separation, she returned to Lake Charles on November 10th 1946, at plaintiff's request, and lived with him there until November 22nd 1946, at which time she was sent by plaintiff (due to their inability to obtain permanent quarters in Lake Charles) to the home of his sister at Lottie, Louisiana where she lived until December 20th 1946 and that, thereafter, she returned to her parents' home in New Orleans where she has since resided. In a supplemental answer, defendant prayed that plaintiff's suit be dismissed as premature and, by way of reconvention, sought a divorce under the 1938 act on the ground that more than two years had elapsed between the date (December 20th 1946) when the real separation occurred and the date (December 31st 1948) of the filing of the reconventional demand. Alternatively, she set forth that, in any event, she was entitled to alimony at the rate of $20 per week being in necessitous circumstances and because she was without fault in the premises.
After a trial on these issues, there was judgment in favor of plaintiff granting him a divorce and rejecting defendant's demand for alimony as well as her plea in reconvention. She has appealed.
There can be little dispute respecting the salient facts of the case, which we find to be as follows: In 1942, the parties established a matrimonial domicile in Lake Charles and lived there together until December 16th 1945, when defendant deserted plaintiff. Thereafter, suit was brought by plaintiff in the Fourteenth Judicial District Court for a separation from bed and board on the ground of abandonment. Defendant appeared and admitted the allegations of the petition and judgment in plaintiff's favor was rendered on these pleadings and other evidence on March 20th 1946. More than a year later, on March 24th 1947, plaintiff filed a petition for an absolute divorce, alleging that no reconciliation had taken place since the decree of separation from bed and board. This demand was contested by defendant and she filed an answer asserting that she and plaintiff had become reconciled on November 10th 1946, at which time she returned to Lake Charles at his request and lived with him at the home of W. M. Floyd where the marital relationship was reestablished and that, after remaining there for a week, her husband sent her to Lottie to stay with his sister because of inability to obtain permanent quarters in Lake Charles. Shortly after defendant filed this answer (in which she made a demand for alimony), plaintiff appeared in court and, with defendant's consent, moved and obtained an order to dismiss the suit for final divorce based on one year separation. Subsequently, he was charged and found guilty of non-support of defendant and ordered to pay alimony. Then, on November 29th 1948, he filed this suit for an absolute divorce under the two year law, which defendant is opposing.
The only issue with respect to plaintiff's demand for a divorce is whether it is premature, it being defendant's contention that the parties did not separate until December 20th 1946, when she left his sister's residence to go to her parent's home in New Orleans. She further maintains that she is entitled to a divorce under her reconventional demand, which was filed more than two years after December 20th 1946.
In support of her claim, defendant testified that, after she and her husband became reconciled on November 10th 1946 and were living in the Floyd home, he sent her to his sister's home on November 21st, because he was having difficulty with another woman with whom he had been friendly following the first separation; that he asked her to wait there for him and that he would come and get her as soon as he could; that, while she was staying at his sister's house in Lottie, her husband visited and cohabited with her on two occasions but that he did not bring her back to Lake Charles as he had promised and that, after remaining in his sister's home for four weeks, or until December 20th 1946, she returned to her parents' domicile in New Orleans as she 'knew he wasn't going to come after me after I stayed there that long'.
The evidence of defendant is not contradicted by plaintiff other than the portion respecting his visits to and cohabitation with defendant at his sister's home in Lottie. He asserts that he and defendant separated on November 21st 1946 at the Greyhound Bus Station in Lake Charles when she went to Lottie to visit his sister; that he brought her to the station; that he knew she was going to his sister's home but that he did not send her there and did not know why she was going. Plaintiff's sister, Mrs. J. E. Prather, testifying in his behalf, affirms the fact that defendant was a visitor in her home from November 21st to December 20th 1946 but denies defendant's statement that plaintiff came to see defendant during that period and she does not know whether there was any trouble between plaintiff and defendant or why defendant was visiting her home.
The testimony of plaintiff and his sister is not impressive. It seems very unlikely that plaintiff is telling the truth when he says that he did not know why defendant went to his sister's house for a...
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