
    Elvira NIEMANN, Wife of George Joseph SEELING v. George Joseph SEELING.
    No. 88.
    Court of Appeal of Louisiana. Fourth Circuit.
    June 30, 1961.
    Rehearing Denied Oct. 9, 1961.
    Certiorari Denied Nov. 29, 1961.
    See also 133 So.2d 168.
    C. Cyril Broussard, New Orleans, for plaintiff and appellant.
    Richard A. Thalheim and Gordon L. Bynum, Gretna, for defendant and appel-lee.
    Before McBRIDE, YARRUT and HALL, JJ.
   McBRIDE, Judge.

Plaintiff has appealed from the judgment rendered by the trial court insofar as it dismisses her suit for a separation from bed and board on the ground of desertion and also insofar as said judgment awards her husband on his reconventional demand a separation from bed and board from her on the ground of cruel treatment.

The parties were married in New Orleans in 1935 and established the matrimonial domicile in Jefferson Parish where they were residing when this .suit was filed in the month of November 1958. When married the wife was 20 and the husband 48, so at the time of this suit her age was 43 and his 71. Two sons were born of their marriage, now both of age.

The wife charges her husband deserted her on October 19, 1958. The facts are that on October 2, 1958, the husband moved into the “milk shed,” which is a separate building in the rear of their dwelling, where he remained for about 17 days; then on October 19, 1958, he left the premises entirely to live with his daughter, issue of a previous marriage.

He claims justification for leaving his wife, contending that living with her was insupportable due to his wife’s cruel treatment of him. In his reconventional demand for a separation from bed and board he charges her with repeated acts of cruelty, abuse and mental harassment. He testified that during the past four years she never prepared his meals except on occasions when she would cook red beans which she would give to him for as many as three days straight. He is not working but has an income from building and loan association investments, and claims he supported his wife by giving her $18 per week for food and that he paid all bills. He testified that in September of 1956 because he had loaned money to one of his sons, his wife became incensed and choked him and tore his clothing, and then grabbed a 13-pound sledge hammer intending to strike him with it and would have done so had his son, Melvin, not taken the hammer from his mother. Defendant also claims his wife never made up his bed, refused to keep the house clean, wash his clothes, or allow him to watch television. He states he has not occupied the same bedroom with his wife for the last four years because she refused to let him enter; that she repeatedly told him he stunk and was disgusting to look at.

From the witness stand the wife made denial of most of these charges. She denied he gave her $18 every week and said the amount would range between $6 and $18 per week, and with reference to the charge she did not cook his meals she said:

“A. I cooked for what he provided. The funds he provided, I cooked for him.
“Q. What did you cook for him? A. According to what he provided. Tf he provided for three meals a day, he got three meals. If he provided for only one, he got only one.
“Q. What did he give you a week? How much a week did he give you? A. It varied.
* * * * * *
“Q. During 1958, how much money did he give you to run the house? A. Some weeks Eighteen ($18.00) Dollars; some weeks Twelve ($12.00) Dollars; some weeks Six ($6.00); some weeks nothing.”

With reference to the sledge hammer incident she testified her husband attempted to strike her and that when she raised her hand to defend herself, he caught hold of her by the neck and that he only thought she intended to pick up the sledge hammer but that she never touched it. The testimony of both parties shows that Melvin, their son, was present when the incident occurred, but he is now in military service stationed in the Azores Islands, and, of course, could not be present as a witness. The wife denied she kept the door to her bedroom locked and said her husband had access to the room whenever he desired. She denied refusing to wash his clothes but she states she would not wash them with her own because the husband allowed a pet dog to sleep on his bed.

The only witness other than the parties was plaintiff’s sister who testified plaintiff maintained a clean house; that she was present when the husband moved his belongings to the milk room which occurred without incident. This testimony is of no assistance to the court.

The trial judge who saw and heard the husband and wife testify believed the statements of the former and stated in his reasons for judgment the wife was “at fault in causing the separation.”

The only question that this appeal could possibly pose for our consideration is whether the finding of fact made by the trial judge that the wife was at fault in the separation is so erroneous and unsupported by evidence as to warrant reversal by us. Our careful reading of the record satisfies us that the trial judge had every reason and every right to make the above determination from the evidence that was produced before him.

It is true the cruel treatment with which the wife is charged extended over a period of four years before culminating in the separation, but we do not think that because the husband continued to live in the same house with his wife there was condo-nation or reconciliation between the parties. It was merely forbearance on his part. It is well settled that the forbearance of a wife in enduring cruel treatment of the husband should not be construed as a reconciliation barring her action for separation from bed and board. New v. New, 186 La. 1017, 173 So. 748; Articles 152 and 153, LSA-Civ. Code; Lynch v. Lynch, 138 La. 1094, 71 So. 195; Balfe v. Balfe, 165 La. 283, 115 So. 489, and Terrell v. Boarman, 34 La.Ann. 301. It will be noted that the holdings in the above cases were that whenever the wife endured cruel treatment the same should not be construed as a reconciliation, but we think that the same rule should apply with reference to a husband. The statutory rules regarding reconciliation of the parties are embodied in LSA-C.C. arts. 152 and 153, and the provisions make no distinction as between husband and wife and the rule, of course, must be applicable to both spouses.

Excepting the sledge hammer incident occurring in 1956, there is no showing by the husband that his wife ever struck him or was guilty of physical mistreatment. But even if we eliminate said incident, which occurred two years before the separation, from all consideration, we think there remain sufficient grounds for a separation from bed and board. The above detailed mental harshness and harassment on the part of the wife would, under our jurisprudence, constitute cruel treatment. However, we do not mean to say that because there is no corroboration for the husband’s testimony regarding the alleged attempt to strike him with the sledge hammer that we believe the incident did not take place. This comment is made solely because it is argued so strongly on behalf of plaintiff that because there was no corroboration the husband has not proven the incident by a preponderance of evidence.

It was stated in Moore v. Moore, 192 La. 289, 187 So. 670, 671:

“Cruel treatment, under the jurisprudence of this state, is not confined to physical mistreatment, abuse, or injury, but can, likewise, result from mental harassment alone arising from conduct that is the ‘very refinement of cruelty,’ without either force or blows. * * *»

See, also, Wendling v. Aucoin, 214 La. 361, 37 So.2d 819, and Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581.

The chief contention of appellant is that the reconvenor did not prove his case by a preponderance of evidence because only the parties themselves testified and that the testimony of one is as good as that of the other. We can only again comment that disputations between married persons usually take place behind closed doors and they are not ordinarily given to airing their differences in the presence of other persons, and in matters of this nature the court is usually called upon to adjudicate the case on the basis of the testimony given by the spouses themselves.

We are aware of no law or jurisprudence to the effect that the unsupported testimony of a party in a divorce or separation suit as against the unsupported testimony of the other party may not constitute a preponderance of the evidence if believed by the trier of the case. The rule is the same as prevails in other civil cases. In 32 C.J.S. Evidence, § 1021, p. 1051, under the heading “What Constitutes Preponderance,” we find:

“By a preponderance of evidence is meant simply evidence which is of greater weight, or more convincing, than that which is offered in opposition to it. * * * ”

Our jurisprudence is to the effect that in a case such as we have before us where the decision must hinge upon the veracity of witnesses, the judgment appealed from will not be disturbed unless there is manifest error therein. In Vinot v. Vinot, 239 La. 587, 119 So.2d 474, 475, there was hopeless conflict between the testimony of the wife and the husband. The Court said:

“Accordingly it will be seen that the husband’s and the wife’s testimony is in hopeless conflict, and although other witnesses testified, they gave no testimony which could resolve this conflict. As the issue is one of fact, this court will not disturb the finding of the trial judge on the question of fault unless that finding is shown by the record to be manifestly erroneous. Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43; Kendrick v. Kendrick, supra [236 La. 34, 106 So.2d 707].”

It was pointed out in Sampognaro v. Sampognaro, supra, that:

“Whether or not the plaintiff, under this doctrine, has proved by a preponderance of the evidence the allegations of cruelty made in his petition is a question that addresses itself to the weight to be afforded the testimony of the witnesses. * * *” [211 La. 105, 29 So.2d 583.]

The manifest error rule prevails in this type of case to the same extent as in other civil matters. In Clay v. Clay, 221 La. 254, 59 So.2d 180, 181, the Supreme Court said:

“* :|: * js weij established in the jurisprudence that, in the absence of manifest error, we will not reverse the judgment of the trial court upon a controversial and disputed question of fact. Recent divorce cases recognizing this rule are Arnold v. Arnold, 186 La. 323, 172 So. 172; Rayner v. Rayner, 216 La. 1099, 45 So.2d 637; Moser v. Moser, 220 La. 295, 56 So.2d 553. After reading the testimony adduced at the trial of this case, we cannot say that the trial judge committed manifest error in dismissing plaintiff’s suit.”

In Wojahn v. Soniat, 211 La. 562, 30 So. 2d 431, which was a suit for separation from bed and board, the Court said:

“ * * * In all cases where there is conflicting testimony as to any fact, the lower court is in a better position to pass on the credibility of the witnesses because it has opportunity to observe the manner in which the testimony is given. We will not set aside the finding of the lower court on a question of fact where there is no manifest error. * * *»

In Arnold v. Arnold, 186 La. 323, 172 So. 172, 173, we find this language:

“As to whether the plaintiff or the defendant is entitled to a decree of separation from bed and board, the case presents only questions of fact; which are, for the most part, dependent upon the veracity of the witnesses. We therefore defer very largely to the opinion of the district judge *

See, also, Schneider v. Schneider, La. App., 129 So.2d 42.

We have carefully read and analyzed the testimony and fail to find anything in the husband’s statements which would tend to detract from his veracity, and by the same token we fail to find anything in the wife’s testimony which would lead us to a conclusion that what she said is even as worthy as his testimony. We point up her testimony with reference to the sledge hammer. She stated her husband only thought she was going to strike him with this implement. Why, we ask, should she even allude to the sledge hammer if it did not play a part in the particular incident which had happened two years prior to the separation? Then again there is the charge the wife would not wash the husband’s clothes. She did not say she was willing to or did wash his clothes. What she said was she was unwilling to place her clothes along with his in the washing machine. All she intimates is she was willing to wash his clothes separately from hers. We think that if she had washed her husband’s clothes, it does not seem reasonable he would have complained whether they were washed separately or not. Her testimony alone would have the tendency to lead one reading it to the belief she did not attempt to wash her husband’s clothes. Her testimony also would lead one to believe she had no interest in cooking her husband’s meals. It is logical to assume that if the funds she received from him were insufficient as she claims to provide for regular meals, she would have made complaint concerning his dereliction. But she does not say she ever complained. All she did was to give him what she thought he deserved which to our minds demonstrates clearly the contempt she evidently entertained towards him. There is no error that we can discern in the conclusions of the trial judge on the questions of fact presented to him, and we are at a loss to know on what basis the judgment appealed from should be reversed. The manifest error rule should be applicable.

The disparity in the ages of the parties undoubtedly had much to do with their marital difficulties, but we should not concern ourselves too much with this circumstance. Regardless of his age, the wife has no legal right to neglect, abuse, harass, and ridicule her husband in the manner above set forth to such an extent as would render their living together insupportable and force him to quit the matrimonial domicile. The wife in this case was guilty of cruel treatment towards her husband.

The judgment allowed the wife the sum of $200 for her attorney's fee which we think adequate. There is no reason for increasing the amount.

The judgment appealed from is affirmed.

Affirmed.

YARRUT, Judge

(dissenting).

I am constrained to dissent from the affirmation of the judgment in favor of the husband on his reconventional demand, seeking to justify his admitted abandonment of the wife on the ground of mental and physical cruelty; and in denying judgment to the wife on her main demand charging abandonment. The statement of the issues and record are fully set forth in the majority opinion.

The only testimony was given by the parties themselves, except that the wife’s sister testified that she kept a clean house, and that she was present when the husband came with a son by a previous marriage and moved his belongings into the barn or “milk shed” (as it was sometimes called) without any incident other than, when the wife asked him for the barn key, he replied, “The damn barn is locked and will stay locked,” and he then left.

The parties for some years prior to the husband’s leaving in the fall of 1958, occupied separate sleeping quarters, without apparent objection from either.

There were mutual criminations and recriminations. The wife testified that, in the last two years, her husband abused her, called her a vile name, and told her he was going “to do her all the dirt in the world he could”; that he did not need a wife any longer, and did not propose to support one, because of his waning physical powers, presumably meaning impotence.

In his behalf, the husband testified to the allegations in his reconventional demand, and, in particular, said she refused to let him enter her bedroom because he “stank” and would not wash his clothes because they smelled like a pet dog he permitted to sleep in his bed. The husband testified it was her dog, and he kept it in his room because she would not keep it in her room.

The husband was not employed but had a modest annual income of $2,200 from investments. He gave his wife, some weeks $8 to buy food, some weeks $12, and some weeks $18. She testified she prepared the meals in keeping with his allowances; that he paid the gas and water bills, and limited clothing; that he repeatedly threatened to leave and divorce her, finally carrying out his threat on October 2, 1958, when he moved into the shed, and on October 19, 1958, when he left the premises completely to live with his daughter.

Notwithstanding the cruelties charged against his wife during the four years previous to his leaving, he continued to live with her. This is what the majority opinion characterizes as “forbearance” on the part of the husband. Before there can be “forbearance”, there must first be proof of the cruelties that the husband had to forbear.

It is significant that the younger son (Melvin) who is alleged to have restrained his mother from striking his father in 1956 with the sledge hammer, though in the military service at the time of trial, was not produced as a witness nor his deposition taken, nor any request by the reconvenor-husband for a continuance so his son’s deposition could be taken. The burden of producing the son’s testimony rested with the father, not the mother, since he had to prove his charges of cruelty, not her duty to disprove them, no matter how distasteful it would be to have a son testify for or against one or both of his parents.

Since this alleged act of cruelty in 1956 was condoned by the husband, who lived with his wife until October, 1958, its proof could not serve as the basis of a judgment, but only as corroboration of similar acts committed later and forming the basis of a separation suit. While there is no such charge here of a later act, the proof vel non would have considerable probative value in determining which was more worthy of belief.

There is no question that the husband would be entitled to a judgment if he proved his allegations by a preponderance of the evidence. LSA-C.C. Art. 138. Nor is there any question that, if both spouses are equally at fault, relief will be granted to neither. Eals v. Swan, 221 La. 329, 59 So.2d 409; Callahan v. Callais, 224 La. 901, 71 So.2d 320.

The manifest error rule invoked by the majority opinion to the effect that the findings of fact of the trial judge will not be reversed unless manifestly erroneous, should not be applied here. When the trial judge does not give any reasons why he believed one set of witnesses, or one party over the other, we are relegated to the record to determine whether or not there is or is not manifest error. Cramer v. Emmco Insurance Co., La.App., 80 So.2d 549; Malbreaugh v. City of Baton Rouge, La.App., 68 So.2d 619; Gordon v. Pittman, La.App., 61 So.2d 609; Townley v. Pomes, La.App., 198 So. 788; Burnette v. Toebelman, La.App., 195 So. 135; Webb v. Lambert, 14 La.App. 147, 128 So. 317.

Let us consider the various charges of mental cruelty. Take for instance the charge that she did not cook his meals as regularly as she should. Her explanation is that he gave her sometimes $8 per week, sometimes $12 per week, and sometimes $18. With this he expected three meals a day, or six meals a day between them, or a total of 42 meals per week. Even had he given her $12 per week regularly, it would only have allowed her a lit tie over 30 cents a meal. Pie did pay the gas and water, but paid no rent because they were living in his own separate property, from which he evicted her four months after the judgment of separation, as disclosed by Seeling v. Seeling, La.App. 133 So.2d 168. If the wife were complaining about his not providing sufficiently for the meals, his answer could very well be that he was doing the best he could with his limited income. But she never complained, he is the one now complaining.

With reference to washing his clothes, she claimed she did not wash his clothes with the other clothes in the washing machine because they smelled like the dog he was sleeping with. He admitted he had the dog in his room, but explained he had to keep the dog because she refused to do so.

With reference to not letting him view the television set, she denies that. And with reference to denying him access to the marital bed, she testified she always performed her marital duties.

With reference to the only allegation of physical cruelty, namely, the attempt to hit him with a sledge hammer, the only witness present was their grown son. It is true he was in the military service and there might have been some difficulty getting his deposition, but the husband made no effort to that end, nor did he ask for a continuance. He, not she, bore the burden of proof.

Considering the record as a whole, it seems that the difficulties were due to the great disparity of 28 years in their ages, widening in inverse proportion as they both advanced in years; at 20 for her and 48 for him when they married, and at time of suit in 1958, 43 for her and 71 for him. She has never complained, but appears to have made the best of the marriage, with patience and fortitude.

Even if we were to reach the conclusion of mutual fault and relief should not be granted to either, we must bear in mind that the wife is not suing for separation on the ground of cruelty, only the husband to justify his abandonment. She is suing for abandonment, which he admits, but seeks to prove justification.

I believe the real reason for the abandonment is to relieve the husband of his duty to support his wife. She lived with him for 23 years, bore him two sons, was his cook, house maid and washwoman, without any complaint on her part, or his part, and now, to avoid payment of alimony, he abandons her, and seeks to justify it by charging cruelties committed over the last few years without any apparent objection or complaint on his part and without any satisfactory proof, which the majority opinion states was “forbearance”. The eviction of his wife from the former matrimonial domicile, leaves her without a home, and the judgment of separation in his favor leaves her without any support at a time when she has reached middle age and is solely dependent upon him. The rule of manifest error must give way to the burden of proof. I think there is manifest error in the Trial Court’s conclusions without reasons therefor, and the rule of preponderance of evidence under burden of proof, resting upon the husband, should be invoked against him.

In the case of Schneider v. Schneider, 209 La. 925, 25 So.2d 900, 901, on the question of burden of proof, we quote from the opinion by Chief Justice Fournet, an apt paragraph:

“From our appreciation of the evidence, which we have studied very carefully, we conclude, as did the trial judge, that most of the difficulties that arose between these parties apparently came about as the result of arguments over money matters and we think these difficulties have culminated in the present incompatibility of these parties. But we disagree with the trial judge’s conclusion that the defendant has borne the burden of proof that was upon him to support his special plea of condonation, based on his alleged cohabitation with his wife on June 9, 1944. To support this he relied on his uncorroborated testimony, which is flatly denied by his wife, and, in our opinion, there is nothing in the record that would justify our giving more weight to his testimony in this respect than to hers. He has thus failed to establish this plea by the preponderance of the evidence required by law.”

For the reasons assigned, I think the judgment of the District Court should be reversed and the wife should have judgment of separation on her main demand, and the husband’s reconventional demand dismissed. Accordingly, I respectfully dissent.  