Gray v. Gray

• Decision Date: 30 April 1984
• Docket Number: Nos. 15962-C,16211-CA,s. 15962-C
• Citation: 451 So.2d 579
• Parties: Cecil Thomas GRAY, JR., (Plaintiff-Appellant), v. Doris Patricia Barker GRAY, (Defendant-Appellee).
• Court: Court of Appeal of Louisiana — District of US

Page 579

451 So.2d 579

Cecil Thomas GRAY, JR., (Plaintiff-Appellant), v. Doris Patricia Barker GRAY, (Defendant-Appellee).

Nos. 15962-CA, 16211-CA.

Court of Appeal of Louisiana, Second Circuit.

April 30, 1984.

Rehearing Denied May 25, 1984.

Nelson, Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.

Sockrider & Bolin by H.F. Sockrider, Jr., Shreveport, for defendant-appellee.

Before HALL, JASPER E. JONES and SEXTON, JJ.

SEXTON, Judge.

Plaintiff filed suit to terminate his obligation to pay permanent alimony to defendant on the grounds that defendant was living in open concubinage. Plaintiff additionally sought to terminate his alimentary obligation on the grounds that a change in his ex-wife's financial circumstances rendered his support unnecessary. The trial court rejected plaintiff's claims on both counts. We affirm.

Plaintiff in this cause is Cecil Thomas Gray, Jr., a former resident of Natchitoches, Louisiana. Defendant herein is Patricia Gray, Mr. Gray's former wife. These two parties were married on February 17, 1977, and were divorced by a judgment filed November 15, 1982. There were no children born of their marriage. The judgment of divorce ordered Cecil Gray to pay Patricia Gray permanent alimony at the rate of $500 per month.

On May 12, 1983, Cecil Gray filed a rule to terminate his obligation to pay permanent alimony to Patricia Gray, on the grounds that the "defendant in rule [Patricia Gray] [had] entered into open concubinage" with another man. The trial court rejected plaintiff's demand on May 25, 1983, finding that plaintiff had not proven open concubinage. The plaintiff appealed.

On July 14, 1983, plaintiff again filed a rule to terminate permanent alimony. Plaintiff again contended that the defendant, Patricia Gray, was living in open concubinage, and also asserted that she had experienced a change in her financial circumstances which rendered continued alimony unnecessary. The trial court rejected plaintiff's demand to terminate permanent alimony in a judgment rendered October 17, 1983, finding that plaintiff had proven neither open concubinage, nor a change in financial circumstances sufficient to justify a reduction or termination of permanent alimony. The plaintiff Cecil Gray has also appealed this judgment. The appeals of these two judgments are consolidated here.

The first issue to be addressed herein is whether the trial court erred in finding that the plaintiff had not proven that the defendant Patricia Gray was living in open concubinage with another man subsequent to the judicial dissolution of her marriage to the plaintiff. The remaining issue is whether the trial court erred in finding that defendant Patricia Gray's financial circumstances had not changed sufficiently--since the judicial setting of permanent alimony--to justify a reduction or termination of permanent alimony.

I. Open Concubinage Claim

The definition of "open concubinage," as that term is employed in Article 160, ¹ was presented as a matter of first impression to this Court in Thomas v. Thomas. This Court determined in Thomas that the term of "open concubinage" possesses the same meaning under Article 160 that it does under Civil Code Article 1481 which prohibits those living in open concubinage from donating immovable property to each other. Our adherence to the position articulated in Thomas is fundamentally based on the consideration that the term "open concubinage" has possessed a definitive legal meaning in Louisiana "for over a century," ² and a judicial distortion or displacement of that meaning would constitute judicial legislation. We remain of the view that, having failed to supply a different term, the legislature simply did not desire or mandate that a different concept be operative in the termination of alimony.

"The term open concubinage has a well-established legal significance, and we believe that in employing this term, the legislature intended that it be accorded its traditional and firmly established meaning; had they intended otherwise, they could have employed a different precept which emphasized habitual sexual acts, rather than quasi-marital status." Thomas, supra, at 884.

The legal content of the term open concubinage was articulated in detail in Thomas:

[T]he courts have historically insisted that a definite meaning be ascribed to both the words "open" and "concubinage," before finding that the legal requisites of open concubinage have been proven. "Concubinage" is derived from the Latin term concubinatus. This term signified, in Roman civilization, a relationship or cohabitation in which the man and woman generally resided together as husband and wife without the benefit of the formalities, civil effects and legal consequences of a formal marriage. Succession of Jahraus, 114 La. 456, 38 So. 417 (1905). Thus to this day, concubinage has retained the signification of a relationship in which a man and woman live together as husband and wife without being legally married. Henderson v. Travelers Ins. Co., 354 So.2d 1031 (La.1978); Succession of Moore, 232 La. 556, 94 So.2d 666 (1957); Succession of Franz, 232 La. 310, 94 So.2d 270 (1957); Succession of Jahraus, supra; Succession of Keuhling, 187 So.2d 520 (La.App. 3d Cir.1966); Purvis v. Purvis, 162 So. 239 (La.App. 2d Cir.1935). It is crucial to the definition of open concubinage to note that it depicts a status or relationship, rather than an act or series of acts. Succession of Moore, supra; Succession of Franz, supra; Succession of Jahraus, supra; Succession of Keuhling, supra. Concubinage is not constituted merely by "acts of fornication or adultery, however frequent or even habitual." Succession of Jahraus, 38 So. at 418. Moreover, "the concubine must not be confounded with the courtezan, or even with what is ordinarily called a mistress. She is the wife without a title." Gauff v. Johnson, 161 La. 975, 109 So. 782, 783 (1926). Concubinage depicts a state of affairs in which the man and woman exercise with respect to each other the rights and privileges of marriage. Succession of Lannes, 187 La. 17, 174 So. 94 (1936). Thus, concubinage could be defined as a relationship of sexual content in which man and woman live together as husband and wife in a state of affairs approximating marriage. It should be noted, however, that although living together is important to a finding of concubinage, it is not absolutely essential. Succession of Filhiol, 119 La. 998, 44 So. 843 (1907); Succession of Jahraus, supra; Succession of Keuhling, supra; Succession of Hamilton, 35 La.Ann. 640 (La.1883); Paxton v. Paxton, 173 So. 488 (La.App. 1st Cir.1937).

In applying the concept of "open concubinage," the Louisiana courts have also ascribed a definite and distinct meaning to the term "open." Thus, it is not enough that concubinage be proven. The courts have additionally required that concubinage be "open." Concubinage is said to be open, when the illicit relationship is not disguised, concealed, or made secret by the parties. Concubinage is open when the parties involved avow their illicit relationship by words or conduct. Succession of Keuhling, supra; Succession of Jahraus, supra; Paxton v. Paxton, supra. A finding of "openness" clearly does not require that the parties verbally acknowledge their illicit relationship: "[M]en of position do not proclaim from the housetops their illicit connections." Succession of Filhiol, supra, 44 So. at 847. See also Jones v. Kyle, 168 La. 728, 123 So. 306 (1929); Succession of Jahraus, supra. However, efforts taken by the parties to conceal their illicit relationship militates against a finding of openness. Thomas, supra, at 881.

As indicated in Thomas, the requirement of openness does not require that a person explicitly refer to a concubine as a spouse; the requirement of openness may be satisfied by the mere absence of concealment, by the parties, of the illicit relationship.

Plaintiff's open concubinage allegation is centered upon the contention that the defendant Patricia Gray is presently living in open concubinage with Andrew Maggio. Patricia Gray was married to Andrew Maggio from 1954 until 1976. Four sons and one daughter were born of this marriage. At the time of trial, one of the sons was a minor, and the four remaining children were of the age of majority.

Plaintiff established that Patricia Gray currently lives in a home owned by Andrew Maggio at 605 Royal Street in Natchitoches. Moreover, Mr. Maggio pays the monthly note on said house, pays Mrs. Gray's grocery and utility bills, pays her insurance premiums, and provides her with an automobile and spending money. Mr. Maggio frequently eats at the house and keeps some of his clothes and toiletries there. Mr. Maggio periodically visits the household in the morning and at evening. It is uncontroverted that Mr. Maggio took a four day trip to Las Vegas with Mrs. Gray subsequent to her divorce from the plaintiff.

Plaintiff's claim that Patricia Gray was living in open concubinage with Andrew Maggio prior to trial was predicated principally upon the testimony of private investigator Howard Malpass. Plaintiff attempted to establish, through the testimony of Mr. Malpass, that Mr. Maggio frequently spent the night at the Royal Street residence. Mr. Malpass surveilled the Royal Street residence on several separate occasions in June of 1983. He testified as to Mr. Maggio's presence at the residence, and the written investigative report compiled by him on a day-by-day basis was also admitted into evidence.

Mr. Malpass's testimony indicates that on six of the seven occasions that Mr. Malpass "staked out" the Royal Street residence owned by Mr. Maggio, and occupied by Patricia Gray, Mr. Maggio spent the night at this residence. Mr. Malpass's testimony further reflects that the sole occasion during the surveillance period that Mr. Maggio did not stay at the Royal Street residence occurred on the night of June 15 when a...