Davieson v. Trapp

• Decision Date: 03 July 1953
• Docket Number: No. 40291,40291
• Court: Louisiana Supreme Court
• Parties: DAVIESON v. TRAPP.

Page 804

66 So.2d 804

223 La. 776

DAVIESON v. TRAPP.

No. 40291.

Supreme Court of Louisiana.

July 3, 1953.

Richard Dowling, New Orleans, for appellant.

Joseph F. Deynoodt, New Orleans, for appellee.

LE BLANC, Justice.

Plaintiff instituted this suit against his wife asking for an absolute divorce on the ground that they had lived separate and apart for more than two years, as is provided for by the statutes of Louisiana, LSA-R.S. 9:301. The defendant wife promptly filed a rule for alimony pendente lite, and alleging also that she was destitute and did not have cash funds with which to defend the suit, asked that plaintiff deposit a sum necessary to pay costs of court and that he be made to pay the fee of the attorney she had to engage in her defense.

She subsequently filed an answer in which she set forth that the separation between them was not caused through any fault on her part but solely and exclusively as a result of plaintiff having abandoned her from the matrimonial domicile at 1139 Bourbon Street, in the City of New Orleans and having gone to live with his mother in Algiers. Further she avers in her answer that she is destitute and is unable to work and that in view of the fact that the separation between them has been caused solely and exclusively through the fault of her husband she is entitled to permanent alimony which should be fixed by the Court at a sum no less than one-third of his income. She prays accordingly and also asks for judgment against her husband in the sum of $100 for the fee of her attorney.

On trial of the rule there was judgment ordering the plaintiff to pay counsel for defendant $20 for costs of filing her answer and also ordering him to pay defendant alimony at $10 per week pendente lite. After trial on the merits judgment was rendered in favor of plaintiff decreeing a divorce 'a vinculo matrimonii' between him and his wife and also ordering him to pay permanent alimony to her in the sum of $10 weekly. Plaintiff has appealed and the only contested issue before this Court is the one which relates to the alimony decreed in the judgment.

A part of Art. 160 of the LSA-C.C. provides '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.' (Italics ours.)

We have before us a case in which the husband has obtained a divorce under the present two year separation law of this State and the wife is asking for alimony under that Article of the Code, claiming that the separation was brought about solely and exclusively by the fault of the husband, from which, of course, the only logical inference to be drawn is that she was not at fault, or, as is stated in some of the cases, that she was 'free from fault.' In referring to permanent alimony in cases of this kind the Court stated in Hawthorne v. Hawthorne, 214 La. 905, 906, 39 So.2d 338, 339: 'Here the element essential for the obtaining of permanent alimony is that the wife must show that she was free from fault and she must prove her allegations with reasonable certainty.' The issue therefore becomes one which is more or less factual and that is the nature of the one we are confronted with in this case.

The testimony reveals a rather ill-mating between a healthy, robust young man, 34 years of age, with an apparently frail woman, according to the trial judge's statement, and...