
    Esther BECKER, Wife of Nathan SHAPIRO, v. Nathan SHAPIRO.
    No. 40.
    Court of Appeal of Louisiana. Fourth Circuit.
    Jan. 23, 1961.
    On Rehearing June 12, 1961.
    Application for Rehearing Denied June 30, 1961.
    Sydney J. Parlongue, New Orleans, for defendant-appellant.
    Zelden & Zelden, Sam Monk Zelden, New Orleans, for plaintiff-appellee.
    Before JANVIER, McBRIDE, and SAMUEL, JJ.
   SAMUEL, Judge.

This is a suit by the wife (filed on July 30, 1957, and based on cruel treatment) for a separation from bed and board, the custody of a minor child and alimony. There was judgment in favor of the wife on all three points and the husband has appealed seeking a reversal of the judgment of separation and, in the alternative, a reduction in the alimony award.

The litigants had been married to each other for twenty-five years. Three children were born of the marriage. One is now emanicipated by marriage, another is deceased, and it is the third, a nine year old boy at the time of the filing of this petition, whose custody was granted to the mother.

The only allegation as to cruel treatment is contained in Art. 4 of the petition; which reads as follows:

“Petitioner further avers that her husband, the said Nathan Shapiro, has been guilty of cruel treatment so as to render their living together impossible; that he has stated that he desires that she leave the matrimonial domicile and that he no longer loves her, and in accordance therewith, on July 27, 1957, your petitioner left her home and her husband.”

Four witnesses testified in the trial of the case. One of these was a certified public accountant, whose testimony was limited to the property and income of the defendant, and the other three were the plaintiff, a Mrs. Emmanuel Lansberg, who testified on behalf of the plaintiff, and the defendant.

While it is apparent that plaintiff confused the separation involved in this suit with a prior separation upon which there had been a suit and a reconciliation, it is her testimony that some two months before she filed the petition her husband had told her in the presence of their daughter (the daughter did not testify) that he no longer loved her and that “he could not go on any more”. It is possible, but this is difficult to decide because of the witness’s nervousness, lack of responsive answers and persistence in confusing the two separations one with the other, that her testimony is also to the effect that her husband said he desired her to leave the house on the one occasion with which we are here concerned. A careful examination of the record reveals that, with one exception, the two statements upon which she relies as constituting cruel treatment were told to her by the husband on only one occasion. That one exception is found in the references by this witness to the same two statements made by her husband on an occasion prior to the first separation. Neither this first separation, nor any statement made by the defendant in connection therewith or prior thereto, were pleaded by the plaintiff. Defense counsel made timely objection on this ground when he was able to do so, but he was unable to object in every instance because the plaintiff’s testimony was not responsive to the questions asked. We feel that we must disregard these references to the occasion prior to the first separation. The plaintiff g-ave no testimony whatsoever, nor is there any in the record from any source, on the question of whether or not the statements complained of rendered insupportable her continued living together with her husband.

The plaintiff’s only other witness, Mrs. Lansberg, testified that the defendant told her that he had told his wife he no longer loved her and that she could leave if she wished. It is quite clear that this witness refers to the incident which occurred prior to the first separation and that her testimony was confined to only that one incident.

In his testimony the defendant denied that he had ever told his wife that he did not love her or desired that she leave the house.

The trial judge believed the testimony of the plaintiff and quite obviously disbelieved the denials of the defendant. We have no argument with this conclusion for the question of which witness to believe and which to disbelieve, being concerned as it was only with the credibility of the witnesses themselves, was clearly within his province and not ours. Therefore, we are here presented with the problem of whether or not one instance where the husband tells the wife he no longer loves her and desires that she leave (or that “he could not go on any more”) is sufficient to constitute cruel treatment and form the basis of a judgment of separation from bed and board.

It is clear that in order to justify a judgment of separation from bed and board the ill-treatment complained of must be of such a nature as to render continued living together insupportable. The law involved is contained in LSA-Civil Code, Art. 138, subd. 3, which reads as follows:

“Separation from bed and board may be claimed reciprocally for the following causes:
* í¡c iji * # sfi
“3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them towards the other, if such habitual intemperance, or such ill-treatment is of such a nature as to reiuler their living together insupportable-,” (italics ours).

While it is true that the number of instances involved is important only insofar as they effect the question of whether or not they render the living together insupportable, we are of the opinion that the one instance here proved by the plaintiff is not sufficient to warrant a judgment in her favor.

A careful examination of the authorities cited on behalf of the plaintiff to support the proposition that a single instance of cruel treatment may justify a judgment of separation reveals factual situations different from the instant case, and none which is concerned with only one instance of cruel treatment similar to that involved here. A judicial separation is not lightly regarded in Louisiana. See “The Degree of Cruelty Necessary to Justify Separation from Bed and Board in Louisiana”, 16 La. Law Rev. 533.

Even a husband’s refusal to live with the wife, although under proper circumstances constituting abandonment for which the wife would be entitled to relief, is not sufficient cruel treatment so as to justify a separation from bed and board under LSA-Civil Code, Art. 138, subd. 3. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581.

In point are the two Supreme Court cases of Ducros v. Ducros, 156 La. 1033, 101 So. 407 and Parrish v. Parrish, 164 La. 62, 113 So. 764, particularly the latter.

In the Parrish case the wife refused to live with her husband and informed him that she no longer cared for him. The court denied a judgment to the husband on the grounds of cruel treatment. We can see no material difference between a wife’s refusal to live with her husband, accompanied by a statement to him that she no longer cared for him, the situation in the Parrish case, and a husband’s statement to his wife that he no longer loved her and desired that she leave, the instant case. Any actual difference between the two factual situations would seem to favor a judgment in the cited over the instant case. For to refuse to live with a person is more serious than to simply desire that the person leave and to no longer care is at least as serious and as extensive as is to no longer love. Parrish and Ducros therefore are binding on this court.

For the reasons assigned the judgment appealed from is reversed and it is ordered that there be judgment in favor of the defendant and against the plaintiff, rejecting the latter’s demand.

Reversed.

On Rehearing

Before McBRIDE, REGAN, SAMUEL and HALL, JJ.

SAMUEL, Judge.

During the course of argument on rehearing it was disclosed by admission and stipulation of both counsel, and thus brought to our attention for the first time, that a final judgment of divorce had been rendered between the litigants hereto during the pendency of this appeal from the judgment of separation from bed and board.

A suit for separation from bed and board abates and ceases to have any legal existence after a judgment of divorce has been granted between the parties. Sampognaro v. Sampognaro, 213 La. 814, 35 So.2d 742; Cotton v. Wright, 193 La. 520, 190 So. 665.

The case before us is now moot and, accordingly, the appeal is dismissed.

Appeal dismissed.

On Application for Rehearing

Defendant-appellant has filed an application for a rehearing of our dismissal of his appeal.

Pie now contends that his appeal presented for this Court’s determination not only the correctness of the trial Court’s judgment granting a separation from bed and board, but also questions involving alimony pendente lite, i. e., whether or not such alimony was due and, if so, whether a proper amount was awarded; that a judgment awarding or refusing to award alimony is itself appealable and divisible from that part of the same judgment which granted the separation (Ramos v. Ramos, 173 La. 407, 137 So. 196) ; and that appellant has a right to have these alimony questions passed on by this Court, a right which is denied him by the dismissal of the appeal. He relies chiefly on the case of Murphy v. Murphy, 229 La. 849, 87 So.2d 4, which held that a judgment for alimony was still before the appellate Court under facts similar to the instant case.

Murphy is not apposite. Here appellant’s suspensive appeal from the judgment which awarded both a separation and alimony placed both questions before this Court. His prayer for relief on appeal was as follows :

“It is now respectfully submitted that there should be a judgment of this Court holding that the evidence and the law is not sufficient to warrant a judgment granting a separation from bed and board and, accordingly, the judgment of the lower Court should be. reversed; in the alternative, should this Court find that the judgment of separation from bed and board is proper, then in that event the Court should render judgment fixing the alimony to be paid by the husband at the sum of $40.00 per week.

Our first decree gave to appellant the relief which he sought and for which he specifically prayed. However, it did not relieve him from the obligation of paying alimony for the support of his wife and child and did not prevent the wife from later seeking the unpaid alimony installments which accumulated between the date of the judgment awarding the alimony and the final decree of divorce. Thornton v. Floyd, 229 La. 237, 85 So.2d 499. Yet appellant did not apply for a rehearing from that decree. His present application comes too late.

The application is denied.

Application denied.

McBRIDE, J.,

is of the opinion that a rehearing should be granted, limited to the question of alimony. See Murphy v. Murphy, 229 La. 849, 87 So.2d 4; Thornton v. Floyd, 229 La. 237, 85 So.2d 499.  