
    Jimmie Dee TAYLOR, Plaintiff and Appellant, v. Shelby Jean D. TAYLOR, Defendant and Appellee.
    No. 3728.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 21, 1972.
    John Rixie Mouton and J. Minos Simon, Lafayette, for plaintiff-appellant.
    David A. Sheffield, Alexandria, for defendant-appellee.
    Pharis & Pharis by F. Jean Pharis, Alexandria, and Gravel, Roy & Burnes by Glynn W. Reynolds, Alexandria, for appel-lee.
    Before CULPEPPER, MILLER and DOMENGEAUX, JJ.
   CULPEPPER, Judge.

Plaintiff-husband sued his wife for divorce on the grounds of adultery, and alternatively for a separation from bed and board on the grounds of abandonment. The defendant-wife reconvened for separation on the grounds of cruelty. After a trial on the merits, the district judge rejected the husband’s demands and granted the wife’s reconventional demand for separation. Custody of the two youngest children, ages 1 year and 7 years respectively, was awarded to the wife. Custody of the oldest child, 10 years of age, was awarded to the husband. Alimony in the sum of $225 per month was awarded to the wife and two children. The husband appealed.

The issues on appeal are: (1) Did the plaintiff-husband prove his demand for divorce on the grounds of adultery? (2) Did the trial court err in denying plaintiff-husband’s alternative demand for separation on the grounds of abandonment? (3) Did the trial court err in awarding a judgment of separation to the defendant-wife on the grounds of cruelty? (4) Did the trial court err in awarding the sum of $225 per month alimony for the support of defendant and two minor children? (5) Should we grant the defendant-wife’s motion to remand this case to the district court for further evidence? The parties raise no issues on appeal as to the custody awards.

THE HUSBAND’S DEMAND FOR DIVORCE

Two witnesses, Mr. Lester Seal and Mr. Gene Taylor, testified that during the summer of 1968 they were engaged in the construction of a home for Mr. Seal across the street from the residence of plaintiff and defendant in Ward 10 of Rapides Parish. They frequently saw Mr. Tommy Shaw, an employee of Borden Milk Company, drive his milk truck to the Taylor residence and go in the front door and spend two or three hours. On one occasion, when Mr. Shaw left the Taylor residence, they saw Mrs. Taylor, clothed only in a brassiere and panties, standing in the front door with her arms around the milk man.

The defendant wife admits that she knows Tommy Shaw and that at one time he delivered milk to her home for Borden Milk Company, but she denies any adulterous relationship.

On the basis of the record before us, there is substantial evidence to prove the wife’s adultery with Mr. Shaw.

ALIMONY

Turning now to the evidence in the record regarding alimony, the plaintiff-husband’s income tax returns show that for 1969 his net income was $4,631, and for 1970 it was $4,375. Hence, his average monthly earnings were about $375. The court awarded the wife the sum of $225 per month for the support of herself and two children, which leaves only $150 per month for the plaintiff-husband and the oldest child of whom he has custody. It is obvious that on the basis of the record before us, the evidence does not support the alimony award.

THE WIFE’S MOTION TO REMAND

These obvious deficiencies in the evidence are explained by the defendant-wife in her motion to remand the case. She contends that after plaintiff had completed his case in the district court and defendant was proceeding with her evidence, counsel for plaintiff and defendant had a conference with the judge. In her motion, defendant states that the district judge informed counsel that he did not believe plaintiff’s witnesses as to the alleged adultery. She also states that during the conference in the judge’s chambers, her counsel revealed to the judge that he had contacted Borden Milk Company and determined that Mr. Tommy Shaw left their employment in January of 1968 and hence was not delivering milk to the defendant-wife during the summer of 1968. The defendant-wife’s motion for a remand further states that during the conference in the judge’s chambers the parties consented to the judgment which was rendered, as described above. For this reason, the defendant-wife produced no further evidence to contradict plaintiff’s witnesses regarding the adultery, nor did she introduce any further evidence regarding alimony.

After judgment was rendered by the district court, the plaintiff-husband changed attorneys and instituted the present appeal. The defendant-wife contends the reason that plaintiff’s trial attorney withdrew from the case was his reluctance to renege on the consent judgment.

The defendant-wife has attached to her motion for a remand an affidavit from the Borden Milk Company, which states that Thomas Shaw left the employment of Borden’s on January 27, 1968. Also attached to the motion is an affidavit of Mr. Thomas Shaw denying any adulterous relationships with Mrs. Taylor.

Courts of appeal have the right to remand cases for a new trial, additional evidence, etc., to prevent a miscarriage of justice, LSA-C.C.P. Articles 2082 and 2164. Jurisprudence has established the rule that the procedure should be sparingly used, but each case depends on its own facts, McKinney v. Levy, 212 So.2d 279 (La.App. 3rd Cir. 1968). Under the peculiar circumstances of the present matter, the defendant-wife’s motion for a remand must be granted. A serious miscarriage of justice would result if the defendant-wife were branded as an adulteress, where she had evidence to show the charges against her are untrue, but failed to introduce it because she and her attorney thought the case was being settled by a consent judgment. It would also result in a serious injustice if the alimony were reduced on the basis of the evidence in the record, when additional evidence would have shown the plaintiff-husband has a greater income.

For the reasons assigned, the judgment appealed is reversed and set aside. This' case is remanded to the district court for the introduction of additional evidence as to all issues, after which any appropriate judgment may be rendered. Costs in the lower court will await a final determination of the case. All costs of this appeal are assessed against the plaintiff-husband.

Reversed and remanded.

MILLER, Judge

(dissenting).

It appears to me that the case is being remanded to allow another judge to determine whether or not the trial judge’s determination of credibility was manifestly erroneous. Since appellant failed to establish manifest error on this appeal, I would affirm the trial court’s denial of husband’s prayer for divorce and the award to wife of a judicial separation. Where credibility is at issue, the trial court’s factual determination should have more weight, not less. I respectfully dissent.

I find no support for the statement that there is substantial evidence in the record to prove the wife’s adultery with the milkman Mr. Shaw. The statement that Seal and Taylor saw Mrs. Taylor clothed only in a brassiere and panties standing in the front door with her arms around the milkman “on several occasions” is not correct. Both testified generally to that effect as to one occasion, not several. See Seal’s testimony at Tr. 160, 161 and 163, and Taylor’s testimony at Tr. 170. But the value of these witnesses’ testimony is substantially reduced as I read the record. It was established that the milkman and his wife lived in the second house from the Taylors about 500 feet down the road (Tr. 162); that he made his calls to Mrs. Taylor about noon and parked his prominently marked milk truck in her front yard (Tr. 157); that the calls were made while her children were playing in the yard in front of her house and while workmen were building Seals’ house directly across the street from the Taylor residence. Taylor is a cousin to Mrs. Taylor’s husband and he knew the milkman well from having served with him in the National Guard. Tr. 168. Yet Taylor never spoke or waved to his friend the milkman. Tr. 172. If the trial judge found Seal and Taylor difficult to believe, I’d have to agree. But if one is inclined to accept their testimony, it is disproved by two other witnesses called by plaintiff husband. Tr. 178, 184. These other two witnesses were also working on Seals’ house and they denied seeing anything to suggest an act of adultery. Tr. 182, 187. The husband’s own witnesses are evenly divided as to the milkman’s involvement. All of the other alleged acts of adultery were totally disproved by husband’s own witnesses. Additionally, the wife denied all alleged acts of adultery and the one incident of exposure. Tr. 129.

Another fact not discussed in the majority opinion is that plaintiff husband was represented by three different law firms. One filed suit, another took discovery depositions and tried the case, and still another appealed. A reading of the pleadings followed by a study of the facts as developed by the transcript might well discourage one from representing the plaintiff husband. The original petition alleged many acts of adultery with several named men. Husband took depositions of his own witnesses prior to trial to establish several of the alleged acts of adultery. The results from his point of view were disastrous. One of the witnesses plainly testified in the presence of Mr. Taylor (Tr. 139) that “Mr. Taylor is a liar.” Deposition D-l, page 3.

I find ample evidence in the record to support the trial court’s decision that plaintiff husband failed to prove an alleged act of adultery. The decision is manifestly correct and should be affirmed.

The wife proved her reconventional demand for a judicial separation grounded on cruel treatment. Husband admitted that he hit his wife several times. Tr. 134, 135. He contends that she tolerated this treatment by continuing to live with him. But these acts of cruel treatment are relevant to show a pattern of conduct. There is credible evidence to show that husband pushed wife down the steps when she was six and one-half months pregnant with their last child. Tr. 211. It was well established that he cursed her frequently. Tr. 125, 138, 221, 224. When he was taking her to her mother’s home on the occasion of their last separation, he admits that he cursed her again. This is explained as expressing his displeasure over the fact that she wanted a divorce. This again addresses itself to credibility. The award of the judicial separation to the wife is manifestly correct and should be affirmed.

ALIMONY AND CHILD SUPPORT

Although the record suggests that husband’s earnings were more, wife did not prove the amount. On the husband’s average monthly earnings of about $375, the award of $225 to the wife and two children while leaving only $150 for the husband and one child is manifestly excessive. Husband’s attorney concedes (by brief) that $175 would be proper for the wife, and the evidence supports such an award. The alimony and child support should be changed to $175 per month, with the right reserved to either husband or wife to immediately apply to have future alimony and child support changed.  