Estopinal v. Estopinal

• Decision Date: 01 June 1953
• Docket Number: No. 40718,40718
• Citation: 223 La. 485,66 So.2d 311
• Parties: ESTOPINAL v. ESTOPINAL.
• Court: Louisiana Supreme Court

Page 311

66 So.2d 311

223 La. 485

ESTOPINAL v. ESTOPINAL.

No. 40718.

Supreme Court of Louisiana.

June 1, 1953.

Claude F. Kammer, New Orleans, for plaintiff-appellant.

Bentley G. Byrnes and Edward A. Wallace, New Orleans, for defendant-appellant.

LE BLANC, Justice.

This is a suit for absolute divorce based on the ground of adultery. The plaintiff is the husband who charges the wife with having committed adultery at various times, and particularly on November 17, 1950.

A child was born of the marriage on May 12, 1950 and plaintiff alleges that because of the shameful conduct of the defendant and the dishonor which she has brought upon him and their child, he desires and is entitled to secure a divorce from her and obtain the permanent care, custody and control of the child. He prays accordingly.

In her answer defendant admits her marriage to plaintiff and the birth of their child but she denies all allegations relating to any alleged adultery. She avers that the child is presently under her care, custody and control which she is entitled to during the pendency of the suit and permanently thereafter. With her answer she couples a rule nisi for alimony which she asks for the support and maintenance of the child, in the sum of $50 per month.

After trial in the district court there was judgment in favor of the plaintiff granting him an absolute divorce; however custody of the minor child was awarded to the defendant with certain rights of visitation granted to the plaintiff who was condemned to pay alimony for its support in the sum of $50 per month, payable semimonthly in installments of $25. The defendant appealed from that part of the judgment granting plaintiff a divorce and plaintiff appealed from that part which awarded the custody of the child to the defendant.

The only direct proof of the adultery charged came from the lips of the corespondent, one Frederick Turpin, whose testimony is strongly assailed by counsel for defendant. Counsel complains that it was given too much weight by the trial judge. Such testimony is generally considered to be of a rather reprehensible nature and the general rule is that it should be weighed with great caution before being accepted as true. In Mouille v. Schutten, 190 La. 841, 183 So. 191, 195, it is stated: 'There is no law which disqualifies a corespondent from testifying as a witness for or against the alleged wrongdoer. * * * While he [the trial judge] had the right to disbelieve the witness for any reason which, in his opinion, affected his credibility or showed that he was untruthful and unreliable, he had no right to decline to hear and consider his testimony solely because it is unusual and reprehensible for a man to tell of his intimacies with a woman. * * * Whether or not the testimony is voluntary or involuntary, the reasons that prompted it, and all the facts and circumstances surrounding the case should be carefully considered and if it then appears that the witness has told the truth the judge cannot arbitrarily reject this type of evidence.'

Clark v. Clark, 207 La. 606, 21 So.2d 758, 760, is a case in which, for the reasons stated, the testimony of a corespondent was rejected but the Court nevertheless stated that in considering such testimony, '* * * we need only to say that while a corespondent is not disqualified by law from testifying with reference to his intimacies with the erring spouse, the statements made by him must be corroborated and weighed with great caution before being accepted as true * * *.'

In this case the trial judge appears to have been extremely cautious in receiving and in weighing the corespondent's testimony. Indeed, while it was being given he interrupted the proceeding to state that it was 'rather distasteful' for him to have to listen to the witness testify and attach such credibility to his testimony as he saw fit. He indicated that it was only out of deference to the ruling of this Court that he would do so. In a short statement which he dictated in the record and in which he reviewed the evidence before announcing his decision, he again referred to the care with which he had received and weighed the testimony of this witness but nevertheless concluded that it was supported by several circumstances which appeared in the case, and by the defendant's apparent evasiveness or her inability to explain any of them to his satisfaction.

The particular act of adultery alleged on November 17, 1950 was testified to...