Sachse v. Sachse

• Decision Date: 18 January 1963
• Docket Number: No. 5680,5680
• Citation: 150 So.2d 772
• Court: Court of Appeal of Louisiana — District of US
• Parties: Elisabeth Fineberg SACHSE v. Victor A. SACHSE, III.

Page 772

150 So.2d 772

Elisabeth Fineberg SACHSE v. Victor A. SACHSE, III.

No. 5680.

Court of Appeal of Louisiana, First Circuit.

Jan. 18, 1963.

Watson, Blanche, Wilson, Posner & Thibaut by Harvey H. Posner, Baton Rouge, for appellant.

Durrett, Hardin, Hunter, Dameron & Fritchie, by Calvin E. Hardin, Jr., Paul M. Hebert, Maurice J. Wilson, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, HERGET, LANDRY and REID, JJ.

LANDRY, Judge.

This action (a suit for divorce on the ground of two years voluntary separation, alimony and custody of a minor child), instituted by plaintiff, Elisabeth Fineberg Sachse, wife, against her husband, Victor A. Sachse, III, defendant, is the fifth of a series of legal proceedings and counter proceedings between the litigants at bar.

In the instant case, judgment was rendered October 7, 1960, in favor of plaintiff, Elisabeth Fineberg Sachse, granting her an absolute divorce from defendant, Victor A. Sachse, III, care, custody and control of the minor, Victor Edward Sachse, issue of the marriage, and alimony in the sum of $150.00 monthly for the maintenance and support of said minor. Plaintiff's claim for alimony for her own support and maintenance was rejected. Defendant was granted visitation privileges consisting of the right to have the child away from plaintiff's residence on each week end from 5:00 o'clock P.M., Saturday to 6:00 P.M. on Sunday, and, for a period of one week during summer as well as the right of visitation at plaintiff's residence at other reasonable times. In addition, the learned trial judge prohibited plaintiff's removal of the child from the jurisdiction of the court for a period of more than ninety-six hours without prior approval of the court. Plaintiff has appealed and defendant has answered plaintiff's appeal.

Plaintiff-appellant maintains the lower court erred in: (1) Permitting defendant to file in evidence in this proceeding the records and testimony in the four previous actions; (2) Rejecting plaintiff's claim for alimony; and (3) Prescribing the aforesaid limitation upon plaintiff's right to remove the child from the custody of the court after having awarded plaintiff permanent care, custody and control of said minor.

On the other hand, defendant-appellee answered plaintiff's appeal maintaining the lower court erred in rejecting and denying his prayer for custody of the minor child of the marriage. In this regard defendant contends that plaintiff, by virtue of certain alleged personality deficiencies, is not a proper person to be entrusted care, custody and control of a two and one-half year old male child (the approximate age of the child at the time of rendition of the judgment herein appealed--the child being presently four and one-half years old). Defendant further contends that the pleadings, records and testimony in the four previous suits between these same parties were admissible in the instant proceeding for the purpose of showing (1) Plaintiff's alleged fault in causing the separation on which the present action for divorce is predicated considering plaintiff must establish freedom from fault as a condition precedent to her right to alimony; and (2) Plaintiff is not a proper person to be entrusted care, custody and control of the minor child born of the marriage.

A better understanding of the issues presented herein will be afforded by a brief resume of the legal maneuvering between plaintiff and defendant preceding institution of the present action for divorce.

Plaintiff and defendant were married February 19, 1956. The only issue of the marriage, a son, Victor Edward Sachse, was born February 4, 1958. On September 23, 1958, plaintiff, Elisabeth Fineberg Sachse, instituted suit in the Family Court, East Baton Rouge Parish, against defendant, for separation from bed and board on the grounds of abandonment and cruelty, contending primarily that defendant abandoned her August 8, 1958, on which date he allegedly left the matrimonial domicile taking the young child (then approximately six months of age) with him and refusing to return said child to her. Defendant answered said action for separation praying for its dismissal and, alternatively, for custody of the child. On March 18, 1959, following a lengthy trial which consumed approximately twenty trial days and resulted in compilation of a transcript of testimony of more than 2300 pages, judgment was rendered dismissing plaintiff's said suit for separation on the ground of mutual fault. From this judgment of dismissal plaintiff herein, Elisabeth Fineberg Sachse, took an appeal to the Supreme Court of this state. Meanwhile, however, after having heard approximately 50 hours of testimony in the aforesaid suit for separation, the trial court, on December 2, 1958, rendered an interlocutory judgment granting plaintiff herein provisional custody of the minor child pending said action. From this provisional order of custody defendant made application to the Supreme Court for supervisory writs which application was denied December 11, 1958. Upon completion of the aforesaid lengthy trial, the trial court, in anticipation of an appeal from its judgment rejecting plaintiff's claim for separation, rendered judgment granting plaintiff custody of the minor child pending the outcome of said separation action.

One year following defendant's alleged abandonment of plaintiff, namely, August 8, 1959, plaintiff's appeal from the judgment rejecting her aforesaid action for separation was still pending before the Supreme Court. August 8 and 9, 1959, however, fell on Saturday and Sunday, respectively. The next day, August 10, 1959, both husband and wife filed actions for judicial separation on the ground the parties had voluntarily lived separate and apart for more than one year. The husband's suit was served first and on his exception of lis pendens, plaintiff's suit was dismissed. In defendant's aforementioned suit for separation, judgment was rendered February 4, 1960, decreeing the requested judicial separation, granting plaintiff herein (the wife) custody of the child and awarding alimony for the wife and child in the sum of $150.00 monthly each. Neither party appealed said judgment. The judgment of separation in favor of present defendant, having rendered moot plaintiff's appeal from the judgment rejecting her initial suit for separation based on abandonment and cruelty, plaintiff dismissed her said appeal on April 8, 1960.

Subsequently, on August 8, 1960, both husband and wife filed suit in the court below praying for an absolute divorce on the ground the parties had voluntarily remained separate and apart continuously for a period of more than two years. This time, however, service of process in the wife's suit (the cause presently before us on appeal) was accomplished first and defendant's suit dismissed on present plaintiff's exception of lis pendens.

We are not here concerned with the rights of either litigant to a divorce. The voluntary separation of these parties for more than two years is not only conceded but conclusively established by the evidence of record.

Plaintiff's contention that the trial court improperly permitted the records and testimony in the previous trials to be introduced in evidence herein is predicated solely upon the proposition that plaintiff's alleged fault in causing the separation is not and cannot be an issue in the instant cause. More specifically, learned counsel for plaintiff contends that under the express provisions of Article 160, LSA-R.C.C. the only instance in which the alleged fault of the wife is material and relevant quoad alimony upon final divorce is when the husband obtains the divorce on grounds of two years separation. From the foregoing learned counsel for plaintiff reasons that since plaintiff instituted the present suit and obtained the divorce she is entitled to alimony as a matter of right, irrespective of fault, upon the mere establishment of her necessitous circumstances and, consequently, her alleged fault is immaterial and irrelevant. It is conceded by worthy counsel for plaintiff that if plaintiff's alleged fault is material and relevant to the issue of alimony that the question is to be decided upon the testimony taken in the prior trials.

Article 160, LSA-R.C.C., as amended by Act 21 of 1928, presently reads as follows:

'Art. 160. Wife's alimony after divorce

'Art. 160. If the wife who has obtained the divorce has not sufficient means for her maintenance, the Court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income; provided, however, that in cases where, under the laws of this State a divorce is granted solely on the ground that the married persons have been living separate and apart for a certain specified period of time, and the husband has obtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the Court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income. * * *'

Prior to the aforesaid 1928 amendment, Article 160, R.C.C., as incorporated into our Revised Civil Code of 1870 provided:

'If the wife who has obtained the divorce has not sufficient means for her maintenance, the Court may allow her in its discretion, out of the property of her husband, alimony which shall not exceed one-third of his income.'

It must be recalled that at the time of adoption of our civil code of 1870, our law contained no provisions for divorce predicated upon voluntary separation of spouses for a specified period of time. Article 160 of the Revised Civil Code of 1870, was, from the beginning, interpreted as providing the wife a pension or gratuity since there was no obligation on the part of the husband to support his former wife after dissolution of the marriage by absolute divorce. State ex rel. Hill v. Judge, ...