Fulmer v. Fulmer

• Decision Date: 11 October 1974
• Docket Number: No. 54510,54510
• Citation: 301 So.2d 622
• Parties: Anna D. FULMER v. John A. FULMER, III.
• Court: Louisiana Supreme Court

Page 622

301 So.2d 622

Anna D. FULMER v. John A. FULMER, III.

No. 54510.

Supreme Court of Louisiana.

Oct. 11, 1974.

Rehearing Denied Nov. 6, 1974.

Roger I. Dallam, Greenberg, Cohen & Dallam, Gretna, for defendant-applicant.

Robert A. Keily, New Orleans, for plaintiff-respondent.

TATE, Justice.

The husband complains of a decree holding his wife to be entitled to alimony after final divorce. Previously, the wife had obtained a judicial separation on the ground of the defendant's fault (abandonment). After a year and sixty days had elapsed, the husband filed suit for final divorce, based upon the expiration of this period following judicial separation, without reconciliation. See La.R.S. 9:302 (1960). These alimony proceedings are incidental to that divorce action.

The question before us is whether, under these circumstances, the determination of marital 'fault' in the separation proceedings bars re-litigation of the 'fault' issue for purposes of an award of alimony following the final divorce.

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The trial court held that the pre-divorce separation judgment had conclusively determined marital fault as between the husband and the wife. Therefore, on the final divorce, the wife was not required to re-litigate the issue of fault before being held entitled to post-divorce alimony. The court of appeal affirmed this portion of the decree. 288 So.2d 398 (1974). ¹ We granted certiorari, 290 So.2d 907 (1974), to resolve a conflict in the holdings of the intermediate courts as to this issue.

The issue is essentially one of statutory interpretation. As amended in 1964, Civil Code Article 160 provides that, following a divorce: 'When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her * * * alimony * * *.' ² (Italics ours.)

In determining 'fault' under Article 160, the conflicting holdings of the circuits essentially arise in the present context--where the wife has obtained an earlier judicial separation on the ground of the husband's fault, and subsequently a final divorce is sought or obtained by reason of the expiration of the statutory period without reconciliation, La.R.S. 9:302; and the husband now contends that post-divorce alimony may not be awarded the wife unless there is an independent determination in the divorce proceedings itself that she is free of 'fault'.

The holdings vary as follows:

(1) Some decisions, such as the present, hold that the separation judgment in favor of the wife is a judicial determination that she is free of fault, which precludes relitigation of the issue and is conclusive as to her lack of marital fault. Cf., Gallagher v. Gallagher, 174 So.2d 262 (La.App.2d Cir. 1964) (dicta), annulled on other grounds, 248 La. 621, 181 So.2d 47 (1965). Likewise, decisions such as Richardson v. Richardson, 275 So.2d 845 (La.App.4th Cir. 1973) and Broussard v. Broussard, 275 So.2d 410 (La.App.3d Cir. 1973), similarly hold that a wife is precluded from receiving alimony following the divorce, where the separation judgment in favor of the husband had determined that she was at fault.

(2) Other decisions have indicated that, in the suit for final divorce, the wife may offer the judgment of separation in her favor as proof of her absence of fault, and then the burden shifts to the husband to prove fault on her part. Frederic v. Frederic, 295 So.2d 52 (La.App.4th Cir. 1974); Ballard v. Ballard, 283 So.2d 836 (La.App.2d Cir. 1973); Guarisco v. Guarisco, 271 So.2d 553 (La.App.1st Cir. 1972); Rayborn v. Rayborn, 246 So.2d 400 (La.App.1st Cir. 1971), writ refused 258 La. 775, 247 So.2d 868 ('. . . not final').

(3) Yet other decisions hold that, since the separation judgment in favor of the wife is not res judicata, the wife has the burden of proving her freedom from fault, in the cause of the separation, in order to entitle her to receive post-divorce alimony. Kratzberg v. Kratzberg, 286 So.2d 174 (La.App.4th Cir. 1973); Davidson v. Jenkins, 216 So.2d 682 (La.App.3d Cir. 1968); Gamino v. Gamino, 199 So.2d 202 (La.App.4th Cir. 1967). Cf. also, Randle v. Gallagher, 169 So.2d 224 (La.App.4th Cir. 1964).

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Ultimately, as we will explain more fully, we reject or modify the second and third line of decisions, since we have concluded that the first position represents the correct interpretation of Article 160--that the judicial determination, in the separation proceeding, of the party at fault in the separation bars re-litigation, in the subsequent divorce proceeding, of the fault which caused the separation, when such need be determined for the purpose of awarding post-divorce alimony under the code article. We do so, as we will explain, on the basis of what we believe to be the legislative intent as deduced from the legislative history of the article.

We assume that the legislative choice is based on the judicial economy and consistency represented by having the separation-causing fault determined once and in the separation proceedings itself, rather than litigating (or re-litigating) it in the much later divorce proceedings--where, with different testimony or less recent recollection, the separation-causing fault might even be determined contrary to that determined at an earlier well-tried and hotly-contested separation adjudication.

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However, we must frankly admit the forcefulness of the contrary arguments, so persuasively set forth in brief in this case and as adopted by the second and third line of decisions. These include:

Since under Article 148 alimony in a judicial separation is not based upon fault, the husband desiring to contest post-divorce alimony should not be required to litigate 'fault' in the separation proceeding. In addition, since (a) either reconciliations often moot the separation judgment or (b) else, when the time for a final divorce nears, the wife often desires to re-marry, a policy of avoiding the Necessity to litigate fault at the time of the judicial separation may (a) contribute to more reconciliations and (b), where re-marriage rather than reconciliation results, avoid ever washing the couple's dirty fault-linen in public in court.

Also, since under the doctrine of comparative rectitude a wife may be awarded a judicial separation if her husband's fault is greater than her own, a judgment of separation in her favor does not really determine that she is free of fault contributing to the separation.

Further, as these decisions point out, the determination of 'fault' in the separation proceedings is not res judicata in subsequent divorce proceedings, if only because the cause of action and the thing demanded are not the same, as required by Civil Code Article 2286. Lloveras v. Reichert, 197 La. 49, 200 So. 817 (1941). See Smith v. Smith, 179 So.2d 433 (La.App.3d Cir. 1965). (Nevertheless, although not res judicata, the marital fault as determined in the separation proceedings is, for the reasons of legislative intent to be stated, also decisive of the 'fault' or freedom from it which determines the wife's post-divorce right to alimony under Article 160--that is, at least when the final divorce is sought on the basis of the judicial separation and the statutory period following it without reconciliation, as authorized by La.R.S. 9:302, the basis for the present final divorce.)

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The legislative history of Article 160 shows the following, up to the 1964 amendment: ³

When Article 160 was originally enacted in 1870, only a plaintiff spouse who could prove one of the statutory faults for judicial separation or divorce could obtain a divorce. Civil Code Articles 138, 139 (1870). Article 160 allowed alimony to 'the Wife who has obtained the divorce', if she had not sufficient means. The clear meaning of the original code article, in this statutory context, was that the wife who had obtained the judicial separation on the ground of her husband's fault could obtain post-divorce alimony, if she needed it.

In 1898, the legislature for the first time provided that a party Against whom a separation judgment was obtained could also demand a divorce after a period of non-reconciliation. Act 25 of 1898. The spouse who obtained the judicial separation could apply for divorce after one year expired following the separation judgment, while the spouse Against whom the judgment was rendered could not do so until Two years had expired. Nevertheless, the act specifically provided that in the latter case the wife who had obtained the separation judgment 'shall have the same rights for recovering alimony from the said husband as are now provided by law for cases in which the wife is plaintiff.'

Thus, again the plain legislative intent was to provide that a wife who obtained the judicial separation on the ground of the husband's fault was entitled to post-divorce alimony, if she was in need. The husband was afforded a new right to sue for final divorce himself, even if his wife had prevailed in the separation judgment; but the wife's right to receive alimony on the ground of the husband's fault, as determined in the separation proceeding, was expressly not curtailed.

The 1898 act is the essential basis of La.R.S. 9:302 (1960) ⁴, upon which the present husband's cause of action for final divorce is founded. (A 1932 amendment reduced to one year and sixty days the period of waiting to apply for absolute divorce by the spouse against whom the separation judgment was rendered.) Thus, if a husband seeks a divorce by reason of this statutory ground (the expiration of a period without reconciliation, after his wife has obtained a judgment of separation on the ground of his fault), the original and never-changed intent of the statutory provision was to provide that the husband's separation-determined fault entitled the wife to alimony, if in need.

By reason of the amendment by Act 21 of 1928, Article 160 first referred to the wife's freedom from fault as a pre-requisite to her post-divorce alimony. ⁵

The reason for the amendment...