Felger v. Doty
| Decision Date | 24 April 1950 |
| Docket Number | No. 39307,39307 |
| Citation | 217 La. 365,46 So.2d 300 |
| Parties | FELGER v. DOTY. |
| Court | Louisiana Supreme Court |
Maizza & Drury, New Oreleans, for plaintiff-appellant.
Dudley Yoedicke, New Orleans, for defendant-appellee.
Plaintiff instituted this divorce suit against his wife on April 26, 1948, praying for a judgment dissolving their marriage. As a ground therefor he alleged a continuous living separate and apart since July 5, 1945.
Answering, the wife admitted the alleged separation and that there had been no reconciliation. Further, she averred that the continuous living separate and apart was caused entirely by the actions of plaintiff. She prayed for a judgment awarding her alimony and attorney's ffes.
After a trial the district judge, as shown by his assigned written reasons, concluded that the separation had endured for more than two years and that the defendant was without fault in causing it. Whereupon, he granted a divorce in favor of plaintiff, but condemned him to pay unto defendant alimony, pursuant to the provisions of Civil Code Article 160, of $140 per month and also attorney's fees of $150.
Plaintiff appealed suspensively and devolutively from that part of the judgment which awarded alimony and attorney's fees. Since appealing, however, he has abandoned his opposition to the award of attorney's fees. Hence, there remains for our consideration only the question of whether the defendant is entitled to alimony (the amount allowed is not disputed).
Civil Code Article 160, which authorizes an allowance to a wife on divorce, recites in part: '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.'
Thus, when the bonds of matrimony are dissolved by a judgment of divorce rendered on the ground 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, 109 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.
With this interpretation in mind we have carefully examined the evidence in the record. It discloses that the litigants were married in Memphis, Tennessee, on October 14, 1924. Of the union two sons were born, their ages at the time of the institution of this action in 1948 being 21 and 19 years, respectively. In 1925 plaintiff and defendant moved to Louisiana, establishing a domicile in Alexandria and living there until 1942. Since the latter year they have resided in New Orleans.
In November, 1943, the parties became separated; but they lived apart then only some three or four months, a reconciliation having been effected. The continuous separation upon which the instant action is predicated commenced July 5, 1945.
Plaintiff alleged in the petition, and he so testified, that he left the defendant because he could no longer withstand her cruelty toward him, it consisting of constant nagging, quarreling, and bickering, of innumerable false accusations of his paying attentions to other women, and of physical violence inflicted on him.
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Chapman v. Chapman
...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......
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