Morrison v. Morrison

• Citation: 316 So.2d 453
• Decision Date: 03 July 1975
• Docket Number: No. 5012,5012
• Parties: Judy Areno MORRISON, Plaintiff-Appellant, v. Levi Burril MORRISON, Defendant-Appellee.
• Court: Court of Appeal of Louisiana (US)

Page 453

316 So.2d 453

Judy Areno MORRISON, Plaintiff-Appellant, v. Levi Burril MORRISON, Defendant-Appellee.

No. 5012.

Court of Appeal of Louisiana, Third Circuit.

July 3, 1975.

Rehearing Denied Aug. 28, 1975.

William L. McLeod, Jr., Lake Charles, for plaintiff-appellant.

Hunt, Godwin, Painter & Roddy by Fred R. Godwin, Lake Charles, for defendant-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

FRUGE , Judge.

Appellant, Judy Areno Morrison, filed suit against her husband, Levi Burril Morrison, for separation from bed and board based on his alleged abandonment of her. The appellee reconvened asking for separation based on the appellant's alleged abandonment, and judgment was rendered in favor of the appellee on his reconventional demand. Later the appellee filed suit for divorce based on the allegation that the appellant had committed adultery on several occasions. Judgment was rendered in favor of the appellee granting him a divorce, and it is this judgment from which this appeal has been perfected. We affirm the trial judge's decision.

On April 11, 1973, the appellant filed suit against the appellee for separation from bed and board. She alleged abandonment on the part of the appellee as the basis for her suit. She further alleged that both the children born of the marriage, Richard Burril Morrison and Brian Kelly Morrison, were at the time under her care and control and that she desired the temporary custody of these children, reserving to the appellee reasonable visitation rights. She further asked for child support payments in an amount totaling $250.00 per month and alimony Pendente lite in an amount of $125.00 per month. An answer and reconventional demand were filed by the appellee denying the allegations of the appellant's petition and asserting the appellee's right to a separation based on his wife's abandonment of him. He asked that he be granted custody of the two minor children. Following the taking of evidence in the matter, judgment was rendered on May 11, 1973 in favor of the appellee and against the appellant granting a separation from bed and board. Permanent custody of the two minor children was granted to the appellant subject to the appellee's right of reasonable visitation. An award for child support payments in the amount of $150.00 per month was also made. The appellant's suit for separation was dismissed with prejudice.

On July 27, 1973, the appellee filed suit for divorce based on the alleged adultery of his wife. He further alleged that though permanent custody of the minor children had been awarded to the wife in the judgment of separation, she had demonstrated that she was unfit to retain custody of the children and that it was detrimental for the children to remain in her custody. Therefore, he asked that custody be granted to him in the judgment of divorce.

A declinatory exception was filed by the appellant alleging that she was a domiciliary of the state of Texas and that she had the custody of the two minor children. She argued that the court had no jurisdiction over the custody of the said children. The exception was overruled by the trial court, and an answer was subsequently filed by the appellant. The answer generally denied the allegations of adultery committed on the part of the wife, and asked for an increase in child support payments in an amount totaling $300.00 per month. The answer further asked that permanent custody be maintained in the appellant.

The appellee alleged acts of adultery on the part of his wife taking place on the following dates and at the following places: Between May 29 and June 1, 1972 in Lafayette, Louisiana; on September 23, 1972, at Holbrook Park in Calcasieu Parish; between February 28 and March 1, 1973, in Oklahoma City, Oklahoma; on March 17, 1973 in the Orange--Port Arthur, Texas area; and between May 5 and June 3, 1973, in Grand Prairie, Texas. The trial judge reviewed the evidence submitted and found sufficient evidence of adultery on the part of the wife on her trip to Baton Rouge and Lafayette and on an overnight stay at the Holiday Inn at Orange, Texas and the Holiday Inn at Port Arthur--Groves, Texas. Reaching this conclusion, the trial judge rendered judgment on June 12, 1974, in favor of the husband granting a final divorce between the parties.

The second question dealt with by the trial judge was that of custody. He pointed out that both sides had admitted that the wife had been a good mother and had been properly caring for the children. He noted that the acts of adultery committed by the wife, given the proper circumstances, could be sufficient grounds for a change of custody. However, the court found that in this instance the wife had not engaged in indiscretions to the extent that the court felt it should uproot the children and change their custody. Liberal visitation rights were granted to the husband entitling him to have weekend visits with the children every other weekend, as provided by a Texas court order. ¹ He further ther provided that in the event the children's grandparents were in the Dallas area, and coming home to Lake Charles, that the children could be picked up and brought home for their father's weekend visit. He further provided that when the children were in Calcasieu Parish the mother was to grant the father reasonable visitation with the children.

The next issue dealt with by the court in its judgment was the amount of child support to be given. The trial judge pointed out that the evidence established that the husband made roughly $11,000 a year and that the mother made about $8,000 a year. The evidence further indicated that it took approximately $475.00 a month to care for the two children. After reviewing all of the facts surrounding the increase in the costs submitted by the wife of caring for the children, the court found that no increase in child support payments was justified except for an increase in child support for Kelly in an amount of $70.00 a month to pay for the child's private schooling until he is able to attend public school.

Applications for new trial on the part of both parties were denied by the trial judge, and the appeal by the wife followed. An answer to this appeal was filed by the husband.

The appellant alleges four specifications of error on the part of the trial court in this case. The first alleged error is that the trial court applied an erroneous standard of proof to the plaintiff, overlooking the fact that the law requires that the plaintiff establish the allegations of adultery to the extent that the evidence excludes all other reasonable conclusions but that adultery took place. The second alleged error is in the trial court's finding that it had jurisdiction to determine who should be given custody of the children. The third alleged error is the failure of the trial judge to increase child support payments. The fourth alleged error is that of increasing the visitation rights of the father.

The appellant argues that the trial judge applied an erroneous standard of proof of adultery in the present case. She argues that in any civil case the person asserting the cause of action bears the burden of proving the allegations. 'Speculation, conjecture mere possibility, and even unsupported probability are not sufficient to support a judgment'. Bynum v. Bynum 296 So.2d 382, at 385 (La.App.2nd Cir. 1974). She argues that a heavier burden is placed upon the plaintiff in adultery cases, citing the following language from the Bynum case:

'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.' 296 So.2d at 386, quoting from Karl v. Karl, 191 So.2d 674 (La.App.2nd Cir. 1966).

The appellant argues that the trial judge did not apply the proper standard of proof in this case and supports her argument by noting that the trial judge himself in his written reasons for judgment conceded that the evidence of adultery in this case is not overwhelming. The appellee argues that a standard of proof requiring overwhelming evidence of the commission of adultery is a far greater burden than that presently placed on the plaintiff in an adultery case by the jurisprudence. He submits that the only proof of adultery which would be overwhelming would be photographs of the parties in the act of intercourse.

We find merit in the appellee's argument. The jurisprudence of this state is to the effect that when circumstantial evidence is used to establish adultery, a Prima facie case may be made out by showing facts or circumstances that lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. Coston v. Coston, 196 La. 1095, 200 So. 474 (1941). The proof must be so convincing as to exclude all other reasonable hypotheses but that of guilt of adultery. Daigle v. Daigle, 222 So.2d 318 (La.App.1st Cir. 1969).

In connection with the discussion of this issue, we note the great weight which is given to the trial judge's findings of fact in Louisiana. The language found in the opinion of Justice Tate in Canter v. Koehring Co., et al., ...