
    Linda Rose Alspaugh WATTS, Plaintiff-Respondent, v. John L. WATTS, Jr., Defendant-Relator.
    No. 12526.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1974.
    En Banc. Rehearing Denied, Jan. 21, 1975.
    Writ Refused March 21, 1975.
    Tommy J. Adkins, Ruston, for defendant-relator.
    Meadors & Meadors by George H. Mea-dors, Homer, for plaintiff-respondent.
    Before AYRES, BOLIN, PRICE, HALL and DENNIS, JJ.
   BOLIN, Judge.

Plaintiff, alleging she was domiciled and residing in Claiborne Parish, Louisiana, instituted suit in that parish on March 11, 1974, for separation from bed and board against her husband, John L. Watts, Jr., domiciled and residing in Lincoln Parish, Louisiana. Petitioner alleges, as grounds for suit, that she is in necessitous circumstances and that defendant has intentionally failed and refused to pay any amount of money for her support or for the support of her minor child. Defendant filed exceptions of improper venue and lack of jurisdiction, which were overruled. Defendant then filed an application for writs to this court, which was granted, and the record, including the transcript of testimony, has been forwarded to this court. We recall the writs heretofore issued.

Mr. and Mrs. Watts formerly maintained their matrimonial domicile in Lincoln Parish, where the husband was a student at Louisiana Tech University. On August 15, 1973 the husband instituted suit against his wife in Lincoln Parish for a separation on the grounds of abandonment. The wife answered and reconvened seeking- a separation against her husband based on alleged acts of cruel treatment. By judgment dated December 13, 1973, the demands of both parties were rejected. The record, exclusive of the transcript of testimony of the Lincoln Parish proceedings, is annexed to and made a part of the instant proceedings.

The testimony adduced during the trial of the exceptions reflects that plaintiff and defendant initially separated in August 1973; that this separation was by mutual agreement; that the wife returned to the home of her parents in Claiborne Parish where she could better take care of a small child, issue of the marriage, and also in the hope that a separation would give both parties a better opportunity to adjust and hopefully would lead to a reconciliation. No reconciliation was ever effected and the husband contributed only $25.00 toward the support of the wife and his child from November 1973 until the date of the hearing on April 19, 1974.

The husband contends his wife was not in necessitous circumstances; that he was not guilty of intentional nonsupport of his wife; in the alternative, that his wife had no legal justification for leaving the matrimonial domicile in Lincoln Parish and moving to Claiborne Parish; and that, even if he be found guilty of intentional nonsupport, this condition was brought on by the actions of the wife and not by any act on his part.

In overruling the exceptions the lower court assigned the following written reasons :

“We recognize, of course, the general rule of law that a married woman has no other domicile than that of her husband, Civil Code Article 39. The evidence heard on the trial of these exceptions reveals that the husband is a student at Louisiana Tech and is employed on a part-time basis with the campus security force and is the recipient of GI benefits from previous service in the armed forces. A considerable portion of such benefits are based on the fact that he has a wife and child. His income is somewhat in excess of $400 per month. The wife was employed at a bank at a salary of something like $250 monthly before deductions. The evidence shows that the community had accumulated considerable indebtedness.
“The evidence reveals that after the separation the husband contributed nothing to the support of his wife or of his child from November, 1973, until April, 1974, except a gift of $25 to the child. The April payment referred to was in response to an order of this Court.
“As we examine defendant’s conduct with regard to the support of his wife and child, the evidence is uncontradicted that for a period from November, 1973, to April, 1974, this young wife was left to shift for herself and child. Additionally the evidence is uncontradicted that a substantial portion of the GI benefits came to him solely by virtue of the fact that he had a wife and child to support, yet he saw fit to and did use these funds for his own purposes.
“Defendant husband excuses this conduct, first on the ground that there were pressing bills to be paid, and second that the wife was employed, therefore her earnings were community earnings and hence half of same should be considered as a contribution by him.
“To the first contention we would observe that the obligation of a husband to support his wife is at least of equal importance to other community obligations. To the second contention we would observe that this is indeed a novel proposition of law that we have not heretofore encountered. We do not believe this to be the law of this state.
“There is a rule in the jurisprudence of this state that a wife is authorized to acquire a separate domicile for herself where she is abandoned or is compelled by reason of ill-treatment to leave her husband. Bush vs. Bush, 232 La. 747, 95 So.2d 298 (1957).
“In my opinion the intentional non-support of this young wife by the defendant husband on whom she had a right to rely for support, constituted such ill-treatment as to authorize her to establish her domicile elsewhere. This ruling finds further support in the recent case of Carrier vs. Carrier, La.App. 2nd Cir. 1972, 258 So.2d 115.”

Being in full accord with the written opinion of the trial judge and, additionally, because the intentional nonsupport of the wife by her husband occurred following their mutual agreement for the wife to move from the matrimonial domicile, the writs heretofore issued are recalled, the judgment overruling the decli-natory exceptions of lack of venue and jurisdiction is affirmed, and the case is remanded to the trial court for further proceedings. All costs are to await final determination of the cause.

DENNIS, J., dissents and assigns written reasons.

PRICE, J., dissents for reasons assigned by DENNIS, J.

DENNIS, Judge

(dissenting) :

I respectfully dissent.

After the wife left the matrimonial domicile in Lincoln Parish an action was tried in the District Court for that Parish in which the Court found the wife did not have grounds for a separation from bed and board based upon cruel treatment.

This court, in Berry v. Berry, 300 So.2d 246 (2d Cir. 1974) declared:

“LSA-C.C. Art. 39 provides that a married woman has no other domicile than that of her husband and LSA-C.C. Art. 120 provides that the wife is bound to live with her husband and to follow him wherever he chooses to reside. It is well established, however, that a wife may acquire a domicile separate from that of her husband where she is abandoned or is compelled by reason of ill treatment to leave her husband. Bush v. Bush, 232 La. 747, 95 So.2d 298 (1957); Juneau v. Juneau, 227 La. 921, 80 So.2d 864 (1955); Bruno v. Mauro, 205 La. 209, 17 So.2d 253 (1944); Zinko v. Zinko, 204 La. 478, 15 So.2d 859 (1943); McGee v. Gasery, 185 La. 839, 171 So. 49 (1936); Lepenser v. Griffin, 146 La. 584, 83 So. 839 (1920); Succession of Lasseigne, 143 La. 1095, 79 So. 873 (1918): George v. George, 143 La. 1032, 79 So. 832 (1918); State v. Fick, 140 La. 1063, 74 So. 554 (1917); Stevens v. Allen, 139 La. 658, 71 So. 936 (1916); Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891); Authement v. Authement, 254 So.2d 630 (La.App. 3d Cir. 1971); Hickman v. Hickman, 218 So.2d 48 (La.App. 2d Cir. 1969); Landry v. Landry, 192 So.2d 237 (La.App. 4th Cir. 1966).
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“ * * * It can be seen from a review of the cases cited above that the type of conduct on the part of the husband which constitutes justification for the wife to establish a separate domicile is substantially equivalent to the type of conduct which constitutes grounds for obtaining a separation from bed and board.” Id. p. 248.

Since the wife did not prove that she had been abandoned or compelled by reason of ill treatment to leave her husband at the time she attempted to acquire a domicile separate from him, the holding of the majority today constitutes an unwarranted judicial enlargement of the exception to the codal law. The majority’s view apparently will allow a wife who has left her husband without being compelled by reason of ill treatment, to establish a separate domicile unless he assumes the burden of supporting two abodes and the related expenses of each.

The Carrier case relied on by the District Court, and apparently given recognition by the majority opinion as being analogous to this action, is distinguishable on its facts. In Carrier the husband forced the wife to leave the matrimonial domicile by taking her to her parents’ home in another state and abandoning her there. The mention in the opinion of subsequent nonsupport was not necessary to the decision on jurisdiction and probably was improper.

Furthermore, even if the jurisprudential exception to the code articles is to be extended so as to allow a wife to acquire a domicile separate from that of her husband when he has been guilty of nonsupport commencing after she has left the matrimonial domicile without being compelled by reason of ill treatment, the plaintiff has not proven all of the essential elements of nonsupport in this case. In order for a wife to obtain a judgment of separation from bed and board from her husband on the grounds of “intentional nonsupport,” as provided in Article 138 of the Civil Code, the evidence must establish:

“ * * * (1) That the husband is able to provide some support to his wife, but that he fails or refuses to do so; (2) that the failure or refusal of the husband to provide support is willful or by design; or that the husband has a settled purpose to not provide support for her; or that he purposely or deliberately fails or refuses to provide support with some bad motive, or with indifference to the hardships or suffering which would result; and (3) that the wife is in destitute or necessitous circumstances.” [Lerch v. Lerch, 177 So.2d 159, 163 (La.App. 3d Cir. 1965)]

In the instant case the evidence reveals that the wife had been living at home with her parents, that she was gainfully employed, and that she was not in destitute or necessitous circumstances. The record fails to disclose that the husband’s failure to support was willful, by design, or with bad motive. Thus, the wife failed to prove that the husband engaged in conduct “substantially equivalent to the type of conduct which constitutes grounds for obtaining a separation from bed and board”, Berry v. Berry, supra, and was not entitled to acquire a separate domicile.  