Jones v. Floyd

• Decision Date: 18 June 1963
• Docket Number: No. 873,873
• Citation: Jones v. Floyd, 154 So.2d 604 (La. App. 1963)
• Parties: Harris JONES, Plaintiff-Appellant, v. Mabel FLOYD, Defendant-Appellee.
• Court: Court of Appeal of Louisiana

Page 604

154 So.2d 604

Harris JONES, Plaintiff-Appellant, v.Mabel FLOYD, Defendant-Appellee.

No. 873.

Court of Appeal of Louisiana, Third Circuit.

June 18, 1963.

Bean & Rush, by Warren D. Rush, Lafayette, for plaintiff-appellant.

Piccione & Piccione, by Joseph J. Piccione, Lafayette, for defendant-appellee.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

The plaintiff husband brings this suit for divorce on the ground that he and his wife have lived separate and apart without reconciliation for a period exceeding one year and sixty days following a previous judgment of separation.LSA-R.S. 9:302.The defendant wife reconvenes, praying the divorce be rendered in her favor on the ground of the husband's adultery following the judicial separation.

The trial court rendered judgment in favor of the wife on her reconventional demand, granting her a divorce on the ground of the husband's adultery.

The husband appeals, alleging that he is entitled to the divorce instead on the ground alleged in his petition.The defendant wife answers the appeal, praying for an affirmance of the judgment of divorce in her favor and, further, for an increase in the amount of alimony awarded for the support of herself and the minor children of the marriage.

The principal issue, then, is whether the plaintiff husband's right to obtain the final divorce on the ground alleged in his petition--namely, non-reconciliation for the requisite time following a judgment of judicial separation--, should have been recognized by the trial court, in preference to the prayer for the final divorce on the ground of adultery asserted by the wife's reconventional demand.

It is conceded that, since the wife obtained the judgment of separation, the wife's right to the custody of the children and to alimony for herself and the children is the same if the divorce is granted on either ground.See, e.g., LSA-R.S. 9:302, quotedat Footnote 1 below.The principal practical difference in effect is that the husband may not, when a divorce has been rendered on account of his adultery, thereafter legally marry his accomplice in adultery.LSA-Civil Code Article 161.

The record shows that the wife had in 1961 obtained a judgment of judicial separation on the ground of the husband's desertion.There being no reconciliation between the spouses and the wife having failed to file suit for a final divorce, the plaintiff husband himself seeks a final divorce by the present action.

By this suit the husband prays for a final divorce upon the cause of action granted him by LSA-R.S. 9:302, which pertinently provides:

'When there has been no reconciliation between the spouses for a period of one year or more from the date the judgment of separation from bed and board became final, the spouse who obtained this judgment may sue for and obtain a judgment of absolute divorce.If no such divorce action is instituted within a year and sixty days from the date the judgment of separation from bed and board became final, the other spouse may sue for and obtain a judgment of absolute divorce. * * *'¹(Italics ours.)

At the trial, the plaintiff husband first proved that there had been no reconciliation subsequent to the judgment of separation obtained by the wife some sixteen months before he filed the present suit for divorce during which interval the wife herself had never filed suit for final divorce.When the defendant wife then attempted to educe testimony of the husband's adultery, his attorney objected to same and then moved that the judgment of final divorce be granted to the husband under LSA-R.S. 9:302, since the uncontradicted evidence (as well as his wife's admissions in her answer and on the witness stand) proved that there had been no reconciliation following the judgment of separation from bed and board.

The trial court stated that the plaintiff had sufficiently proved his case for the divorce based on the prior judicial separation, but the court further felt that, unless furnished with authority to the contrary, it must hear evidence on the wife's reconventional demand for the divorce on the ground of adultery.

The only legal authority called to the attention of our trial brother at the time was jurisprudence under Article 375 of the now-repealed Code of Practice of 1870, which held that a reconventional demand was not permitted under the present circumstances, since it was not regarded as necessarily connected with or incidental to the main demand as required by the code article.See, e.g., Dowie v. Becker, 149 La. 160, 88 So. 777;see also13 La.L.Rev. 310(1953)and 9 La.L.Rev. 239(1949).Our trial brother properly regarded such jurisprudence as no longer applicable, because Article 1061 of the new LSA Code of Civil Procedure of 1960 now permits a defendant to assert by reconventional demand any cause of action he may have against the plaintiff, regardless of connexity.

The trial court therefore overruled the plaintiff husband's objection.Evidence was admitted proving the husband's adultery with a named accomplice after the judgment of separation.

The trial court then rendered the judgment of final divorce in favor of the wife on her reconventional demand, which was based on the husband's adultery.As previously noted, the husband by his appeal contends that instead the trial court should have awarded the husband the judgment for the final divorce on the statutory ground asserted by his petition based upon the non-reconciliation for the requisite period of time following the finality of the judicial separation.

The plaintiff-appellant's position is sustained by the Supreme Court's decision in Tortorich v. Maestri, 146 La. 124, 83 So. 431, which unfortunately was not called to the attention of our trial brother prior to judgment below.Therein, in a situation identical to the present, our Supreme Court held that the husband was entitled as of right to a judgment of divorce upon proof on non-reconciliation for the requisite period of time following the judicial separation, where his wife (with the prior right under the statute to obtain a divorce) had not filed suit for divorce prior to him; and the court further affirmed the dismissal, after such showing, of the wife's reconventional demand for adultery.

The holding in this decision, unlike those in the cases cited to the trial court, was not based upon the now-repealed Code of Practice Article 375, nor so far as we can ascertain has it been affected by the enactment of the new Code of Civil Procedure or by any subsequent decisions.See also: August v. Blache, 200 La. 1029, 9 So.2d 402;...