Gormley v. Gormley

• Decision Date: 29 March 1926
• Docket Number: 27301
• Citation: 161 La. 121,108 So. 307
• Court: Louisiana Supreme Court
• Parties: GORMLEY v. GORMLEY

108 So. 307

161 La. 121

GORMLEY v. GORMLEY

No. 27301

Supreme Court of Louisiana

March 29, 1926

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.

Suit for separation by Mrs. Caroline H. Gormley against Francis T Gormley, in which defendant claimed separation by way of reconvention. Both demands were dismissed, and defendant appeals.

Affirmed.

H Payne Breazeale, of Baton Rouge, for appellant.

Shelby Taylor and Moise Thibodeaux, both of Baton Rouge, for appellee.

OPINION

ROGERS, J.

This is a suit in which husband and wife are claiming, reciprocally, a separation from bed and board -- she in the direct action, and he by way of reconvention. Plaintiff bases her demand upon the alleged habitual intemperance and cruel treatment on the part of her husband. Defendant, in turn, sets up cruel treatment on the part of his wife. The court below dismissed both demands. The parties then appealed. Defendant perfected his appeal. Plaintiff did not, filing, in lieu thereof, an answer to plaintiff's appeal.

Defendant has questioned the right of plaintiff to be heard on her demand in this court, on the ground that she has not appealed from the judgment dismissing that demand. It was not necessary that she should do so. Her answer to the appeal and her prayer for an amendment of the judgment appealed from is sufficient to authorize us to review said judgment on the main demand as well as on the demand in reconvention. Lange v. Baranco. 32 La.Ann. 697.

On the merits, we do not find any error in the judgment of the court below. Plaintiff utterly failed to prove the habitual intemperance of defendant, and the evidence offered to support her allegations of the cruel treatment which she suffered at the hands of her husband is very vague and most unsatisfactory. The parties appear, at one time during their matrimonial life, to have quarrelled and abused each other a good deal, but it is not so clear who was to blame. Plaintiff herself testified that, while her husband used strong language towards her, she retaliated in kind. At one point in her testimony she states: "We both had good tempers, and we said plenty."

Under our law, disappointment in the marriage relation and mere incompatibility of temper are not causes for a judicial separation between the spouses; excesses, outrages, and cruel treatment are, but always with the qualification that the complainant must be comparatively free from wrong.

Where the faults of husband and wife are nearly balanced and are of a similar nature, neither party can be heard to complain in a court of justice. Durand v. Her Husband, 4 Mart. (O. S.) 174; Rowley v. Rowley, 19 La. 557; Naulet v. Her Husband, Dubois, 6 La.Ann. 403; Trowbridge v. Carlin, 12 La.Ann. 882; Castanedo v. Fortier, His Wife, 34 La.Ann. 135; Amy v. Berard, 22 So. 48, 49 La.Ann. 897; Ducros v. Ducros, 101 So. 407, 156 La. 1033; Snell v. Aucoin, 104 So. 709, 158 La. 767.

With respect to the demand in reconvention, we are of opinion that the facts alleged and proved are not sufficient for us to grant defendant any relief. Defendant is now, and has been for many years, the coach and trainer of the athletic team of the state university. His main cause of complaint against his wife is that she objected to the European trip for the purpose of attending the Olympic Games offered him in the year 1924 by the students and others interested in the university. She not only threatened to leave him if he went on the trip, but actually did so upon his refusal to accede to her wishes. Under these circumstances, defendant's action, if he has any at all arises under the articles of the Civil Code (art. 138 et seq.), specifically permitting one of the spouses to obtain a separation from bed and board upon the ground of the abandonment of...