
    Frank PERRILLOUX v. Dorothy Mae Pate PERRILLOUX.
    No. 5-210.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 9, 1982.
    
      William O’Regan, III, LaPlace, for defendant-appellant.
    Sylvia E. Taylor, Reserve, for plaintiff-appellee.
    Before SAMUEL, GAUDIN and GRIS-BAUM, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against his wife for a divorce based on continuously living separate and apart for more than two years. On September 30, 1976 he obtained a default judgment decreeing a divorce and giving custody of the couple’s 11 year old son to the wife. Neither alimony nor child support was at issue, and the divorce petition and judgment contain no mention of either.

On April 24, 1981, approximately five years after the judgment of divorce, Mrs. Perrilloux filed a rule to show cause why her former husband should not be ordered to pay alimony. Following a hearing, there was judgment dismissing the rule. Mrs. Perrilloux has appealed.

Our statutory law is quite clear regarding alimony after divorce. Only the spouse who has not been at fault and has not sufficient means for support can obtain such alimony. And the burden of proving an absence of fault on his or her part is on the spouse seeking alimony.

Here, appellant did not allege she was free from fault, nor did she offer any evidence regarding that issue. The evidence contained in the record consists solely of the testimony of the two litigants. Appellant testified only as to her need and lack of means. The other litigant, her former husband, did testify that appellant was at fault in the separation, but that testimony was objected to by appellant’s counsel, the objection was sustained, and the testimony was allowed to come in only as a proffer.

Thus, the record is totally devoid of any evidence showing, or tending to show, an absence of fault on the part of the appellant. Indeed, the only evidence regarding fault, by way of proffer, was the testimony given by her former husband, and that testimony, although incomplete, is that the appellant was at fault.

As there is no evidence showing an absence of fault on the part of appellant, and as such a showing, by a preponderance of the evidence, is an indispensable part of any successful demand for alimony, her present demand must be dismissed. However, for the purpose of making certain Mrs. Perrilloux may file another rule seeking alimony and allege and offer proof as to her freedom from fault, we amend the judgment to the extent that we dismiss without prejudice.

For the reasons assigned, the judgment appealed from is amended, affirmed as amended, and recast so as to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that the demand of Dorothy Mae Pate Perrilloux for alimony be, and the same is, denied and dismissed without prejudice.

AMENDED, AFFIRMED AS AMENDED, AND RECAST.

GAUDIN, Judge,

dissenting.

I respectfully dissent.

Rather than amend and affirm, I would remand to the trial judge for a hearing on the fault issue.

In his reasons for judgment, the trial judge states, in part:

“... the ex-wife rules the ex-husband into court demanding alimony. At trial of the rule the ex-wife did not prove fault on part of the ex-husband nor prove that she was free of fault. CC Art. 160 allows a spouse free of fault to prove the need for alimony and the ability of the other spouse to pay such alimony. However the jurisprudence places the burden of proof on the spouse claiming alimony to prove no fault on his or her part. This burden was not carried by the ex-wife and alimony will be denied.”

This wording has a ring of finality. It suggests that fault was at issue when the motion for permanent alimony was heard and that this issue had been resolved against Mrs. Dorothy Perrilloux.

In fact, the record clearly shows that fault was not at issue. Mrs. Perrilloux did not say in her motion that she was free of fault, nor did she attempt to testify about fault.

Only when Frank Perrilloux was on the witness stand was fault mentioned, reference this colloquy:

Q. (By Ms. Sylvia Taylor, Mr. Perril-loux’s attorney) When did you and your wife separate?
A. Between ’61 and ’62.
Q. Would you tell me the cause of the separation at the time?
A. If you, well, fussing, cooking, was, well, she wasn’t doing her job in the house and sex and everything, mostly every time you put ...

Mrs. Perrilloux’s attorney objected, and the trial judge sustained the objection but allowed Mr. Perrilloux to make a proffer in accord with LSA-C.C.P. art. 1636.

Nonetheless, the judgment and the reasons therefore indicate that the fault issue had been resolved adverse to Mrs. Perril-loux.

I would remand so that the question of fault could be amply presented to the trial court, and a judicial determination fairly made. 
      
      . In pertinent part, Civil Code Article 160 reads:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income.”
     
      
      . Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702; Lloveras v. Reichert, 197 La. 49, 200 So. 817; Boudreaux v. Boudreaux, La.App., 407 So.2d 1363; Brister v. Brister, La.App., 402 So.2d 173; Adler v. Adler, La.App., 239 So.2d 494; Davidson v. Jenkins, La.App., 216 So.2d 682.
     
      
      . We prefer not to remand, the only other alternative (see Davidson v. Jenkins, supra, note 2), because our solution effectively provides appellant with a choice and brings the present litigation to an end.
     