More Jurisprudence
re
Breach of the Duty of “Positive” Fidelity
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Dickinson v. Dickinson,
399 So. 2d 651 (La. App. 1st Cir. 1981)
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The husband, Joel B. Dickinson, sought a judgment of separation from his wife, Jeanelle M. Dickinson, based on specifically alleged acts of cruel treatment. Mrs. Dickinson reconvened for a judgment of separation based on abandonment and acts of mental cruelty. From a judgment in favor of the plaintiff granting a separation between the parties and dismissing the defendant's reconventional demand, Mrs. Dickinson appeals. We affirm.
At the trial . . . . The evidence reveals that the wife, for a period of several years, and without the husband's consent, unjustifiably refused to have sexual relations with her husband.
It is settled that cruel treatment by one spouse of the other, in any form which renders living together insupportable, is a proper legal ground for separation from bed and board. LSA-C.C. art. 138; Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4 Cir.1976). Thus, a persistent refusal to engage in sexual union, inthe absence of consent or sickness or grave fault may constitute cruel treatment. Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4 Cir.1973), writ refused, 288 So.2d 643 (La.1974); see also Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980); Denbo v. Denbo, 345 So.2d 1257 (La.App. 1 Cir.1977).
Based on the totality of the circumstances, the trial court found Mrs. Dickinson was guilty of cruel treatment. In such situations as this, the findings of the trier of fact should be left undisturbed in the absence of manifest error. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1 Cir.1976); Gurtner v. Gurtner, 258 So.2d 148 (La.App. 4 Cir.1972). We cannot state that manifest error is present here.
Accordingly, for the above reasons, we affirm the judgment decreeing a separation from bed and board in favor of plaintiff, Joel B. Dickinson, and against defendant, Jeanelle M. Dickinson . . . .
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Taddonio v. Kinney-Taddonio,
428 So. 2d 486 (La. App. 4th Cir. 1983)
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Plaintiff and defendant were married in April, 1975 in Alabama and, subsequently, moved to New Orleans, Louisiana. On April 18, 1980, the plaintiff, Dr. Taddonio, left the matrimonial domicile. In May of 1980, he filed suit for separation from bed and board alleging cruel treatment by his wife of such anature as to render their living together unsupportable. . . .
In his petition, Dr. Taddonio alleged cruel treatment in that his wife had refused to engage in any conjugal relations for a period of nine to ten months prior to his departure from the marital domicile. The evidence attrial proved to the court's satisfaction that Mrs. Taddonio did deny her husband sexual relations during the nine or ten months prior to their separation. The trial judge, in his Reasons for Judgment, stated he believed that Mrs. Taddonio persisted in this denial without justification.
. . .
Mrs. Taddonio appeals contending that the trial judge was manifestly erroneous in finding her at fault for the initial separation. We can find no manifest error and accordingly affirm.
. . . The specific, and only, fault which the trial judge assessed to the defendant, was that she did deny her husband sexual relations during the nine or ten months prior to their separation.
A determination of her fault is based upon the factual findings of the trial court, and the determination will not be disturbed absent manifest error. Pearce v. Pearce, 348 So.2d 75 (La.1977); Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir.1972). An examination of the record indicates that the trial court's specific finding that the wife unjustifiably denied her husband sexual relations is supported by the evidence.
Dr. Taddonio testified that his wife had refused to engage in sex with him for nine months prior to their separation. Mrs. Pat Blanchard, a neighbor and close friend of the Taddonios, testified concerning the marital problems between the plaintiff and the defendant. Mrs. Blanchard stated that Mrs. Taddonio told her that it had been nine months to a year since she (Mrs. Taddonio) had sex with her husband. Mrs. Taddonio also related to Mrs. Blanchard that she was having problems and was not interested in sex at all.
In addition to the testimony, Dr. Taddonio introduced into evidence a letter dated May 22nd, 1980, which was written to him by his wife. In this letter, Mrs. Taddoniorefers to "problems" existing between her and her husband for the ten months prior to the date of the letter. Although the letter did not specifically refer to any sexual problems, the trial court viewed the letter as damaging to Mrs. Taddonio because she mentioned the same time period referred to by Dr. Taddonio in his petition for separation.
The allegation that she refused to have sex with her husband was denied by Mrs. Taddonio. She testified that she and her husband engaged in sexual intercourse on numerous occasions throughout 1979, and that she had attempted to engage in sexual relations with her husband after January, 1980, but without success.
The trial court chose to believe the testimony of Dr. Taddonio concerning the denial of sexual relations. In its Reasons for Judgment, the trial court stated that the proof offered by Dr. Taddonio was adequate. In reaching this decision, the trial judge stated that he relied heavily upon the testimony of Mrs. Blanchard and upon the letter which Mrs. Taddonio had written to her husband.
La.Civ.Code art. 141 which authorizes a separation in cases of mutual fault presupposes that each party has committed fault constituting an independent ground for separation under La.Civ.Code art. 138. Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir.1978). To be considered as fault, the spouses' conduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (La.1958). The denial of sexual intercourse to one's spouse unjustifiably and persistently constitutes ill treatment within the meaning of C.C. art. 138 and is a legal ground for separation. Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4thCir.1973), writ refused 288 So.2d 643 (La.1974). See also Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980).
The defendant contends that the evidence adduced at trial did not show that she persistently and unjustifiedly refused to engage in sexual relations with her husband. The jurisprudence of Louisiana wisely does not enunciate a rule for the minimum frequency of sexual intercourse required to constitute cruel treatment. Each case must of necessity be judged on its own merits. The evidence at trial indicates that Mrs. Taddonio refused her husband sex for a minimum period of nine months. Also, the record is absent any justification for the actions of Mrs. Taddonio. . . .
Though a factual dispute exists in the record regarding the wife's refusal of sexual relations, the trial judge chose to believe the husband's testimony. In the area of domesticrelations, much discretion must be vested in the trial judge particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. Pearce v. Pearce, supra. The factual findings of the trial court are to be accorded substantial weight on review Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976).
Our examination of the totality of the circumstances in the case leads us to conclude that the trial court's findings that the wife unjustifiably denied her husband sexual relations is supported by the evidence.
For the foregoing reasons, the judgment of the trial court in Case No. CA-0261 is affirmed at appellant's costs.
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Coleman v. Coleman,
541 So. 2d 1003 (La. App. 3d Cir. 1989)
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Plaintiff, Jerry Coleman, filed suit for separation from bed and board against his wife, Ruby Coleman, alleging cruel treatment. . . . After a trial on the merits, the trial judge granted a legal separation based on the mutual fault of both plaintiff and defendant. Defendant appeals, urging error in the trial judge's finding that she was at fault. We affirm.
Mr. and Mrs. Coleman were married on February 28, 1970. On July 31, 1985, Jerry Coleman left the matrimonial domicile and the parties have lived separate and apart without reconciliation since that time. At trial, Mr. Coleman testified . . . that his wife moved out of their bedroom, and that he feared she would move out of the house, taking the children with her. . . .
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Mrs. Coleman admitted at trial that she had emotional problems which she claimedwere caused by her husband. She acknowledged . . . refusing to have sexual relations with her husband for approximately six months.
The trial judge entered written reasons for his decision. He stated:
". . . . Mrs. Coleman did admit however, that for some six months prior to the separation, she had denied Mr. Coleman sexual access to her. Mr. Coleman's testimony revealed that he considered such a denial to be cruel treatment on Mrs. Coleman's part.
Article 138 of the Louisiana Civil Code provides specific grounds for separation, and paragraph three of that article is specifically appropriate in this case, in that it states that aseparation may be granted: ‘On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.’
Thus, this Court finds that both parties are at fault because of their cruel treatment of each other which has rendered their living together insupportable.
. . ."
The jurisprudence is well-settled that in the area of domestic relations, the factual findings of the trial judge are accorded very substantial weight on review. The trial judge's finding of fact on the issue of fault will not be disturbed unless manifestly erroneous. Pearce v. Pearce, 348 So.2d 75, 78 (La.1977).
. . .
In the instant case, the trial judge's finding of mutual fault rested on a determination that the cruel conduct alleged by each party rendered their living together insupportable. After carefully reviewing the record, we find that the trial court did not err in finding mutual fault. . . .
Finally, we address the contention that the trial judge erred in considering evidence of Mrs. Coleman's refusal to have sexual relations with her husband for a period of six months.[4] It is within the discretion ofthe trial judge to admit or disallow evidence subject to an objection based upon the scope of the issues and pleadings. It is also discretionary for the trial judge to determine whether evidence is encompassed by the general issues raised in the pleadings. Coutee v. American Druggist Insurance, Co., 453 So.2d 314, 317 (La.App. 3d Cir.), writ denied, 458 So.2d 477 (La.1984). We find that the evidence of Mrs. Coleman's sexual denial was admissible for the purpose of explicating Mr. Coleman's allegation of cruelty.[5] Furthermore, the highly subjective determination of whether sexual denial constitutes fault mandates that a reviewing court grant great deference to a trial judge's finding. Derbes v. Derbes, 462 So.2d 302, 307 (La.App. 3d Cir.), overruled on other grounds,477 So.2d 84 (La.1985). In the instant case, the trial judge did not err in finding that Mrs. Coleman's lack of sexual responsiveness constituted cruel treatment.
It is apparent that the trial judge believed that each spouse had sustained his or her burden of proof by establishing fault on the part of the other spouse. The record, taken as a whole, supports the factual conclusions of the trial judge. . . .
For the above and foregoing reasons, the judgment of the trial court is affirmed. . . .
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[4] We note that the trial judge initially ruled that the testimony of Mr. Coleman relating to Mrs. Coleman's sexual denial was inadmissible. Mr. Coleman made a proffer of his evidence under LSA-C.C.P. art. 1636. Later, the trial judge allowed Mrs. Coleman to testify that she had refused sexual relations with her husband for about six months. This testimony was consistent with the proffered evidence.
[5] It is well-established in Louisiana jurisprudence that the unjustified, persistent denial of sexual intercourse constitutes "cruel treatment" within the meaning of LSA-C.C. Article 138. Bateman v. Larson, 452 So.2d 184 (La.App. 4th Cir.1984).