Karl v. Karl

• Decision Date: 31 October 1966
• Docket Number: No. 10639,10639
• Citation: 191 So.2d 674
• Parties: Richard H. KARL, Plaintiff-Appellant, v. Hazel Pauline Swearingen KARL, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 674

191 So.2d 674

Richard H. KARL, Plaintiff-Appellant, v. Hazel Pauline Swearingen KARL, Defendant-Appellant.

No. 10639.

Court of Appeal of Louisiana, Second Circuit.

Oct. 31, 1966.

Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for plaintiff-appellant.

Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for defendant-appellant.

Before GLADNEY, AYRES and BOLIN, JJ.

AYRES, Judge.

This is an action by a husband for divorce on the grounds of adultery wherein, in the alternative, he seeks a separation from bed and board form his wife on grounds of cruel and inhuman treatment. The defendant denied the charges directed against her and, in reconvention, charged plaintiff with acts of cruelty, and sought a separation in her behalf, as well as custody of her minor child, and alimony for herself and support of the child.

In giving consideration to the evidence at the conclusion of the trial, the trial court found that neither party had established his or her demands by a legal preponderance of evidence. Hence, there was judgment rejecting the demands of both parties, from which each prosecutes an appeal to this court.

The evidence with reference to plaintiff's demands for a divorce consists of testimony that, at various times during plaintiff's absence of approximately five years as a member of the U.S. military forces in the Far East, defendant had rented a room to Olin Darwin Duvall, first in Temple, Texas, where she and her four daughters resided, and later in Shreveport where she and Duvall had found employment. This fact was readily admitted by defendant and Duvall, both of whom testified additionally as to two or three visits which they made together to his mother's home at Boswell, Oklahoma. On these occasions, it was testified, defendant was accompanied by one of her daughters. Both defendant and Duvall denied the commission of any wrongful acts.

The rule is well established in the jurisprudence of this State that a wife's innocence of immoral acts is presumed; that the burden is upon the husband, in charging her with immorality, to establish the adulterous relationship by either direct or circumstantial evidence; and that, if circumstantial evidence is alone relied upon, the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt. Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954); Coston v. Coston, 196 La. 1095, 200 So. 474 (1941); Gastrell v. Gastrell, 176 La. 515, 146 So. 40 (1933); Fister v. Fister (La.App.) 131 So.2d 103 (3d Cir. 1961).

Suspicion of guilt arising even to a high degree is nonetheless suspicion and insufficient to establish lack of chastity in view of the rule that, where the chastity of a female is involved, a court of justice must be guided by only clear-cut evidence. Olivier v. Abunza, 226 La. 456, 76 So.2d 528 (1954); Fister v. Fister, supra.

The absence of other circumstances of such nature as to make fairly certain the conclusion that the parties not only had the opportunity to commit adultery but that they did so is insufficient to establish such act. Hayes v. Hayes, supra; Savin v. Savin, 218 La. 754, 51 So.2d 41, 45 (1951).

In this regard, it may be pointed out there was no other incriminating fact or circumstance established than that Duvall rented a room in defendant's home and that he and defendant visited his mother in Oklahoma. On these occasions defendant was accompanied by a daughter. The evidence to which we have referred may create suspicion of wrongdoing, but it does not constitute proof to that degree of legal certainty upon which a judgment may be based .

Plaintiff urges that, in the event the evidence is found insufficient to justify a divorce, this cause be remanded in order that additional testimony of Duvall, the alleged corespondent, may be taken and incorporated in the record. While Duvall denied, during the original trial, any wrongdoing with defendant, he has, by affidavit attached to plaintiff's motion, sworn that since he testified he has been shot by defendant and that 'he is now ready to testify as to their sexual relationship.'

The rule is that while a corespondent is not disqualified by law from testifying with reference to his intimacies with an erring spouse, the statements made by him must not only be corroborated but received and weighed with great caution before being accepted as true. Olivier v. Abunza, supra; Clark v. Clark, 207 La. 606, 21 So.2d 758 (1945); Mouille v. Schutten, 190 La. 841, 183 So. 191 (1938).

Conceding that the corespondent would testify as his affidavit indicates, such proffered testimony would not be of consequence when viewed in the light of the rule established by the jurisprudence. There is nothing in the record which would corroborate it. The testimony, if received, would only establish that the witness would have committed perjury on at least one occasion. Moreover, the reprehensible character of the evidence offered and the caution with which it must be received and weighed mitigate the effect of the testimony, even if it were considered.

The motion to remand is, for these reasons, without merit and must be overruled.

Remaining for consideration are the charges and countercharges of cruelty, together with defendant's additional charge of abandonment, upon which the parties rely for a judgment of separation. On these issues the court concluded neither party had borne the burden of proof imposed upon him. In this regard it was observed there was no evidence in the record to corroborate the testimony of either party.

The undisputed facts are that plaintiff and defendant were married February 14, 1941, and 20 years later established their matrimonial domicile in Caddo Parish, where it has since been maintained. Plaintiff, at the time of his marriage to defendant, had entered the military service of the United States as a career. During April, 1960, plaintiff went overseas for a period of 18 months. This service was extended, by voluntary requests, for periods of six months thereafter until May 17, 1965, when he returned home.

The gist of Mrs. Karl's complaints, according to her testimony, consisted of the fact that plaintiff extended his overseas assignments without consultation with her and without consideration of his obligations as a husband and father; that he failed or neglected to take his family with him, particularly to the Philippines where he was first stationed; that, during the past two years of plaintiff's assignments overseas, she received only three letters from him, one of which was written as a result of her appeal to his chaplain; that she was not informed of his return until after his arrival at a local airport; that, upon reaching their home, his greeting was very perfunctory; and that he refused to resume any marital relationship and told her that his love and care for her had been extinguished.

With reference to the matters of which defendant complained, plaintiff explained that when he went to the Philippines it was most difficult to obtain housing accommodations for his family and there was a long waiting priority list of applications; that his extensions of assignments overseas were made to enable him to advance in military grade which, as he...