Thomas v. Thomas

• Decision Date: 24 October 1983
• Docket Number: No. 15695-CA,15695-CA
• Citation: 440 So.2d 879
• Parties: J. Merlin THOMAS, Plaintiff-Appellant, v. Urslia P. THOMAS, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 879

440 So.2d 879

J. Merlin THOMAS, Plaintiff-Appellant, v. Urslia P. THOMAS, Defendant-Appellee.

No. 15695-CA.

Court of Appeal of Louisiana, Second Circuit.

Oct. 24, 1983.

Writ Denied Dec. 16, 1983.

Kidd & Kidd by Paul Henry Kidd, Monroe, for plaintiff-appellant.

McLeod, Swearingen, Verlander & Dollar by Robert P. McLeod, Monroe, for defendant-appellee.

Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.

SEXTON, Judge.

Plaintiff sued to terminate his obligation to pay permanent alimony, based upon his ex-wife's alleged open concubinage. The trial court found that plaintiff's ex-wife was not living in open concubinage, and dismissed plaintiff's claim. We affirm.

Plaintiff, J. Merlin Thomas, and defendant, Urslia Thomas, who both reside in Bastrop, were divorced by a judgment rendered on June 2, 1981. The judgment of divorce specifically found Urslia Thomas free of fault, and ordered Merlin Thomas to pay her permanent alimony in the amount of $100 per month. No children were born of the marriage.

On January 7, 1983, plaintiff Merlin Thomas filed a rule to terminate his obligation to pay permanent alimony on the grounds that Urslia Thomas was living in open concubinage with another man. The trial court concluded that defendant Urslia Thomas was not living in open concubinage with another man, and in an opinion rendered from the bench on February 15, 1983, dismissed plaintiff's motion to terminate permanent alimony.

The issue on appeal is whether the trial court erred in concluding that defendant Urslia Thomas was not living in open concubinage.

The statutory basis of plaintiff's motion to terminate permanent alimony is Civil Code Article 160, as newly amended by Act 580 of 1982. The new amendment to Article 160 provides that permanent alimony "terminates if the spouse to whom it has been awarded remarries or enters into open concubinage." Thus, for the first time in Louisiana's legal history, open concubinage on the part of an ex-spouse terminates his or her right to permanent alimony. To our knowledge, this appeal represents the first decision in which the new open concubinage provision of Article 160 has been interpreted. Moreover, Article 160 itself does not define the term "open concubinage."

In considering the term "open concubinage," however, this Court is not operating in a legal vacuum. The term open concubinage is used in Civil Code Article 1481, which states in pertinent part that, "Those who have lived together in open concubinage are respectively incapable of making to each other ... any donation of immovables." Moreover, the jurisprudence has for over a century ascribed a definitive meaning to the term "open concubinage."

It is our view that the definition of "open concubinage" operative in the jurisprudence interpreting Article 1481 is equally applicable in the interpretation of Article 160. In short, open concubinage has the same meaning under Article 160 as it does Article 1481. When a legislature utilizes a term with a well-known meaning, it is logical to conclude that they intend the term to convey the same meaning which has become inextricably intertwined with the term itself.

In defining and applying the term open concubinage, the courts have historically insisted that a definite meaning be ascribed to both the words "open" and "concubinage," before finding that the legal requisites of open concubinage have been proven. "Concubinage" is derived from the Latin term concubinatus. This term signified, in Roman civilization, a relationship or cohabitation in which the man and woman generally resided together as husband and wife without the benefit of the formalities, civil effects and legal consequences of a formal marriage. Succession of Jahraus, 114 La. 456, 38 So. 417 (1905). Thus to this day, concubinage has retained the signification of a relationship in which a man and woman live together as husband and wife without being legally married. Henderson v. Travelers Ins. Co., 354 So.2d 1031 (La.1978); Succession of Moore, 232 La. 556, 94 So.2d 666 (1957); Succession of Franz, 232 La. 310, 94 So.2d 270 (1957); Succession of Jahraus, supra; Succession of Keuhling, 187 So.2d 520 (La.App. 3d Cir.1966); Purvis v. Purvis, 162 So. 239 (La.App. 2d Cir.1935). It is crucial to the definition of open concubinage to note that it depicts a status or relationship, rather than an act or series of acts. Succession of Moore, supra; Succession of Franz, supra; Succession of Jahraus, supra; Succession of Keuhling, supra. Concubinage is not constituted merely by "acts of fornication or adultery, however frequent or even habitual." Succession of Jahraus, 38 So. at 418. Moreover, "the concubine must not be confounded with the courtezan, or even with what is ordinarily called a mistress. She is the wife without a title." Gauff v. Johnson, 161 La. 975, 109 So. 782, 783 (1926). Concubinage depicts a state of affairs in which the man and woman exercise with respect to each other the rights and privileges of marriage. Succession of Lannes, 187 La. 17, 174 So. 94 (1936). Thus, concubinage could be defined as a relationship of sexual content in which man and woman live together as husband and wife in a state of affairs approximating marriage. It should be noted, however, that although living together is important to a finding of concubinage, it is not absolutely essential. Succession of Filhiol, 119 La. 998, 44 So. 843 (1907); Succession of Jahraus, supra; Succession of Keuhling, supra; Succession of Hamilton, 35 La.Ann. 640 (La.1883); Paxton v. Paxton, 173 So. 488 (La.App. 1st Cir.1937).

In applying the concept of "open concubinage," the Louisiana courts have also ascribed a definite and distinct meaning to the term "open." Thus, it is not enough that concubinage be proven. The courts have additionally required that concubinage be "open." Concubinage is said to be open, when the illicit relationship is not disguised, concealed, or made secret by the parties. Concubinage is open when the parties involved avow their illicit relationship by words or conduct. Succession of Keuhling, supra. Succession of Jahraus, supra; Succession of Keuhling, supra; Paxton v. Paxton, supra. A finding of "openness" clearly does not require that the parties verbally acknowledge their illicit relationship: "[M]en of position do not proclaim from the housetops their illicit connections." Succession of Filhiol, supra, 44 So. at 847. See also Jones v. Kyle, 168 La. 728, 123 So. 306 (1929); Succession of Jahraus, supra. However, efforts taken by the parties to conceal their illicit relationship militates against a finding of openness. Moreover, it is not sufficient that an illicit relationship be "notorious" or widely known in order for it to be "open." Succession of Jahraus, supra; Succession of Keuhling, supra. Openness constitutes a distinct and less easily achieved standard, involving the absence of any pretense or disguise which would provide a morally acceptable cloak for their illicit relationship.

Urslia Thomas, at the time of trial, was 54 years old. Ray Rachell, with whom she was allegedly living in open concubinage, was 52 years of age. Ms. Thomas lives in a two bedroom house in Bastrop and Mr. Rachell maintains a residence at a rented trailer in nearby Crossett, Arkansas.

The testimony of Merlin Thomas--who conducted regular surveillance of his ex-wife's house and compiled detailed notes of his day-by-day observations--indicates that Ray Rachell spent the night at Ms. Thomas' home about 85 percent of the nights between October 22, 1982 and the date of trial on February 15, 1983. There were several periods of three to four days apiece during that nearly four month span that Ray Rachell or the vehicle driven by him was not sighted late at night and early in the morning at Urslia Thomas' home. However, the testimony reflects that during these infrequent absences by Ray Rachell from Ms. Thomas' home, Ms. Thomas herself was not at home. On several of these occasions, Ms. Thomas was spotted either in Crossett, or on the road between Bastrop and Crossett. Moreover, Ms. Thomas and Mr. Rachell were often sighted returning to her house together or in separate vehicles at closely intervening times, subsequent to these absences.

Neither Ray Rachell nor Ms. Thomas denied that he was a frequent overnight guest at Ms. Thomas' Bastrop home, and Mrs. Thomas admitted the day of the trial that he had in fact spent the previous night at her house.

There were three other persons that resided at Ms. Thomas' home during most of the four month period preceding trial. These were Ms. Thomas' 33 year old son, Freddie Bryan, Ms. Thomas' aged and ailing mother, and a young woman named Sheila Wade who was paid to look after Ms. Thomas' mother, and who Freddie Bryan referred to as a girlfriend. Defendant, her son, and Sheila Wade testified that Ms. Thomas and her mother slept in one bedroom, that Ray Rachell slept in the other bedroom, and that Sheila Wade and Freddie Bryan slept in the living room on a couch and roll away mattress, respectively. Both Ms. Thomas and Ray Rachell denied having sexual relations, or ever sleeping with each other. However, Ms. Thomas referred to Ray Rachell as a "close friend" and a "boyfriend." Ray Rachell admitted that he was "dating" Ms. Thomas, and the trial court found as a fact that the parties' relationship included sexual relations. It appears, moreover, that during the four month period here at issue, Ms. Thomas and Ray Rachell dated each other exclusively.

Several other facts are important in assessing the character of the parties' relationship. Ray Rachell maintains a separate residence in Crossett, Arkansas. With the exception of a suit of clothes which he sometimes leaves at Ms. Thomas' Bastrop residence, it appears that he does not keep his clothes at the Thomas residence. He does not keep his toiletries there, but carries his shaving kit with him when he comes over. Mr. Rachell generally goes by...