Jones v. Jones

• Decision Date: 25 May 1942
• Docket Number: 36424.
• Citation: 200 La. 911,9 So.2d 227
• Court: Louisiana Supreme Court
• Parties: JONES v. JONES.

9 So.2d 227

200 La. 911

JONES v. JONES.

No. 36424.

Supreme Court of Louisiana

May 25, 1942

Rehearing Denied June 29, 1942.

Joseph G. Dempsey, Jr., of New Orleans, for appellant.

Jacob J. Amato, of New Orleans, for appellee.

PONDER Justice.

Edward Louis Jones brought suit against his wife, Mary Frizard Jones, for a divorce under the provisions of Act 430 of 1938. He alleged in his petition that the defendant abandoned the matrimonial domicile without cause, and that he and the defendant have lived separate and apart for more than two years. The defendant, in her answer, admitted that she and the plaintiff have lived separate and apart for more than two years but denied that the separation was caused through her fault. She alleged that she was forced to leave the matrimonial domicile because of her husband's cruel treatment. By way of reconvention, she asked for judgment of divorce, permanent alimony at the rate of $13.50 per week, and attorney's fees in the sum of $300, which she had agreed to pay her counsel for representing her in these proceedings. Upon trial, the lower court gave judgment of final divorce in favor of the plaintiff, condemning the plaintiff to pay the defendant $30 per month alimony, and condemning the plaintiff to pay the attorney for the defendant $125 as attorney's fees. The plaintiff has appealed from the judgment only insofar as the alimony and attorney's fees are concerned. The defendant answered the appeal, asking for the judgment to be amended by increasing the amount of alimony allowed her from $30 per month to $13.50 per week and that the amount of the attorney's fees be increased from $125 to $300.

The testimony in this case, while somewhat conflicting, supports the wife's contention that the separation was not brought about by her fault but by the fault of the plaintiff. It is unnecessary to review the testimony with respect to the various disputes between the husband and wife, for the reason that the separation was caused by the last dispute between them. This dispute arose over an inconsequential matter and resulted in the plaintiff's slapping the defendant. The testimony of the plaintiff is to the effect that he dispute was not brought about through his fault but through the fault of the defendant. He denied slapping the defendant. The defendant testified that the plaintiff provoked the dispute and became so enraged that he choked and slapped her. The testimony of the defendant is corroborated by another witness. The testimony of this witness, who lived next door to the plaintiff and the defendant, is to the effect that she heard the defendant screaming and saying, 'he is choking me.' She also testified that shortly thereafter she saw marks on the fact and neck of the defendant. The testimony shows that the defendant called in a policeman, but no arrests were made. Under the circumstances in this case, we do not feel disposed to disturb the findings of the trial court that the defendant was not at fault.

From the testimony, it appears that the plaintiff is receiving wages of about $50 per week. Out of this amount, he has to pay room rent, board, laundry, and automobile expenses and union dues,...