Eppling v. Eppling

• Decision Date: 18 January 1989
• Docket Number: No. 88-CA-513,88-CA-513
• Citation: 537 So.2d 814
• Parties: Patricia Ann Daly EPPLING v. Irvington Joseph EPPLING. 537 So.2d 814
• Court: Court of Appeal of Louisiana — District of US

Page 814

537 So.2d 814

Patricia Ann Daly EPPLING v. Irvington Joseph EPPLING.

No. 88-CA-513.

537 So.2d 814

Court of Appeal of Louisiana Fifth Circuit.

Jan. 18, 1989.

Writ Denied March 3, 1989.

Lanny R. Zatzkis, Karen D. McCarthy, Lawrence E. Mack, New Orleans, for plaintiff/appellant.

Wayne M. Le Blanc, Metairie, for defendant/appellee.

Before BOWES, WICKER and GOTHARD, JJ.

WICKER, Judge.

Patricia Ann Daly Eppling appeals simultaneous judgments of separation and divorce and a finding of mutual cruel treatment. Irvington Joseph Eppling cross appeals the judge's failure to consider constructive abandonment and his finding of mutual fault. He also claims his wife's appeal is frivolous. The issues before us are the sufficiency of evidence of cruel treatment of the parties, mental illness as a defense to an action based upon cruel treatment, condonation as a defense to a separation action, the existence of evidence of abandonment or constructive abandonment, the sufficiency of evidence of living separate and apart for one year, and the propriety of rendering simultaneous judgments of divorce and separation. We affirm.

Mr. and Mrs. Eppling married in 1965. They separated late in 1985, agreeing not to sue each other for abandonment. Mrs. Eppling initiated this proceeding by filing for a separation in March 1986 based upon the grounds of Mr. Eppling's cruel treatment. Mr. Eppling reconvened alleging cruel treatment, constructive abandonment, and living separate and apart in excess of one year.

During this time, there were hearings on the issues of custody, child support, and alimony pendente lite. Mr. Eppling sought sole custody of the couple's minor children on the grounds that Mrs. Eppling's mental illness made her an unfit parent. A previous judge awarded custody of their son to Mrs. Eppling and their daughter to Mr. Eppling.

Trial of the fault issues took three days; and each party had both lay and expert witnesses. The trial judge concluded that the competing claims of mental cruelty of Mr. and Mrs. Eppling had been proven by a preponderance of the evidence and found the parties mutually and reciprocally at fault. He dismissed Mr. Eppling's claim of constructive abandonment. He also determined that the parties had, at the time of the trial, been living separate and apart for more than a year and granted a divorce to Mr. Eppling. The judge's twenty pages of reasons are persuasive.

Constructive Abandonment

The facts indicate that the parties were married on August 25, 1965. They raised four children of the marriage, two of whom are now majors. Over the course of the marriage they experienced frequent and unresolved conflicts over money matters. Mrs. Eppling insisted that her husband did not adequately financially provide for her and the family. Mr. Eppling insisted he adequately provided for his wife and family and maintained his wife's position was simply unreasonable. Throughout the twenty-one years of marriage, this couple had previously separated on three occasions. They had attended marriage counselling on six occasions. Their final separation occurred in October of 1985.

On October 17, 1985, Mr. Eppling attended a reconciliation discussion with Attorney Vincent LoCoco. Mrs. Eppling attended represented by Attorney Evangeline Vavrick. The primary purpose of this discussion was not to discuss a separation, rather was for the purpose of reconciling the differences which existed between the parties and in particular to identify and solve the marital problems, particularly as they related to money matters. Mr. LoCoco testified that during the meeting discussions broke down because Mrs. Eppling persisted in concluding that Mr. Eppling made more money than he allocated to provide for his family. She also insisted that he caused unidentified problems with the children. Mrs. Eppling became very upset, and made threats of physical violence to Mr. Eppling which resulted in an agreement between all parties present that Mr. Eppling would not return to the matrimonial domicile, but that his actions in not returning would not be construed as an abandonment.

Thereafter, all parties met on a second occasion in approximately late January of 1986. This follow-up meeting was again over money matters. Mr. Eppling brought various financial records in an attempt to illustrate his financial position and to balance his financial ability to pay with his family's needs. This meeting, like the first, was ended when Mrs. Eppling stormed out and took Mr. Eppling's car.

The parties have remained separate and apart since that time.

The respective suit and counter-suit followed almost immediately thereafter.

The facts and evidence clearly demonstrate that the October, 1985 meeting, and the January, 1986 meeting, were for the purpose of attempting to identify and address the marital problems which existed between the parties. This reconciliation could not be accomplished. It is clear, however, that Mr. Eppling left the matrimonial domicile with the express understanding that his actions in doing so would not subject him to a suit for abandonment. I find that it is equally clear that it was tacitly implied, if not understood, that in such arrangement there was a like understanding that neither would sue the other for abandonment. Accordingly, at the outset I dismiss Mr. Eppling's claim for constructive abandonment as the facts fully support a finding that under the circumstances then existing the parties knowingly acquiesced in, and agreed to live separate and apart.

We agree with the trial court's conclusion on the abandonment issue that Mr. and Mrs. Eppling voluntarily began living separate and apart. We affirm his ruling in this regard.

Mental Cruelty

A consideration and study of all of the testimony and evidence as it relates to mental cruelty on the part of Mr. Eppling, establishes as a fact that his conduct throughout a substantial number of years of this marriage was one of extreme indifference, coldness and lack of caring, and even rebuking the affection of his wife. It is clearly established that throughout Mr. Eppling's earlier affair with Annette Roberts, Mrs. Eppling knew in her own mind (albeit without legal sufficient proof) that such an affair was occurring. Mrs. Eppling, being forced to constantly be in the presence of Mrs. Roberts, experienced the emotional humiliation and mental suffering which would naturally follow. Though this affair was ultimately admitted by Mr. Eppling, and the parties reconciled their differences and continued to live together for ten years thereafter, Mr. Eppling's conduct in the following ten years demonstrates little, if any, affection toward his wife. His attitude and conduct in the presence of their close friends, Mrs. Mackie and Mrs. Doody, as well as his decision to visit Mrs. Kilpatrick [a recently-widowed former girlfriend], are examples of further actions on Mr. Eppling's part which illustrate his general indifference toward her. The facts further establish that shortly after the separation, Mr. Eppling, while in Baton Rouge, made a call to another "old girlfriend", Gretchen Rothchild, and has since shortly thereafter, been living and residing with Mrs. Rothchild.

The evidence as a whole is sufficient to support Mrs. Eppling's claim of mental cruelty on the part of Mr. Eppling. Kuchta vs. Kuchta, 296 So.2d 326 [La.App. 4th Cir.1974].

With regard to Mrs. Eppling, the record shows much evidence of mental cruelty which, if not excused by mental illness, would constitute fault. Particularly, there were several instances of outrageous and humiliating public behavior toward Mr. Eppling: cursing, berating, and accusing starting prior to their physical separation and continuing for months afterward.

He described an incident which occurred at Tony Angelo's Restaurant wherein Mr. Eppling and clients were going to dinner with a bank officer after just closing a loan. Mrs. Eppling was invited to join those involved for dinner. Enroute to Tony Angelo's Mr. Eppling states he suggested that he and his wife drive to Tony Angelo's together in the same car, but she elected otherwise. The result of them going in different cars caused Mrs. Eppling to arrive first and upon doing so, could not find Mr. Eppling and the bank officers. She then left but returned, and on returning found Mr. Eppling and the bank officers seated at a table in Tony Angelo's restaurant. Mrs. Eppling approached the table and without explanation or warning, approached her husband and stated "fuck you, Irving Eppling."

Mr. Eppling described the astonishment of those in attendance, as well as his humiliation.

Mr. Eppling also described an incident which occurred in September of 1985 at an occasion described as the "Nagle Party". During September of 1985, Mr. Eppling states that he and his wife had already been in the process of mediation and consideration as to whether or not divorce was necessary. This incident occurred just prior to the meeting with Attorneys LoCoco and Vavrick. Mr. Eppling was to attend a party at the Nagle home. Mrs. Eppling asked if she could attend. Toward the end of the party at approximately 5:00 P.M. in the afternoon, and while in the presence of several guests, including a 4 year old child, Mrs. Eppling asked Mr. Eppling to tell everybody why he "fucked his secretary for 4 or 5 years". One of the guests immediately removed the minor from Mrs. Eppling's presence and Mrs. Eppling re-started, then persisted in her accusations and cursing. She did not appear to be intoxicated.

Later, Mrs. Eppling was calmed down and she and Mr. Eppling left the Nagle party. On arriving at their car, Mrs. Eppling got behind the wheel, started the car before Mr. Eppling could enter. At the time he was toward the right front of the car. Mrs. Eppling immediately put the car in motion and Mr. Eppling claimed she tried to run over him. Mrs. Eppling claims she told Mr. Eppling that if he didn't move "I'll have...