
    John T. COOPER v. Ann Trenchard COOPER.
    No. 11391.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    On Rehearing Jan. 5, 1982.
    
      Cooper & Hingle, John T. Cooper, New Orleans, for plaintiff-appellee.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and SAR-TAIN, JJ.
   SARTAIN, Judge.

In this litigation both parties sought a judgment of divorce based on the grounds of adultery, the husband by way of his main demand and the wife through her reconven-tional demand. After a trial on the merits the trial judge in his written reasons assigned concluded that Mrs. Cooper was guilty of adultery, and to the extent of adultery on Mr. Cooper’s part the reasons for judgment stated: “The testimony of the Cooper’s son related to a period of time subsequent to July 31, 1978, beyond the time and scope of the reconventional demand. However, the Court concludes and finds, that based on the testimony of the parties’ minor son, that Mr. Cooper is not without fault in this matter.” However, the judgment that was actually rendered and signed was in favor of the husband, Mr. Cooper, and against the wife, Mrs. Cooper; Mrs. Cooper’s reconventional demand was dismissed; and there is no mention of mutual fault. Mrs. Cooper’s subsequent motion for a new trial to amend the judgment to also reflect her husband’s fault was denied. She now appeals.

In her appeal Mrs. Cooper does not contest the judgment insofar as the same found her guilty of adultery and entered a judgment of divorce. She does object to the judgment as rendered in that the same does not reflect her husband’s fault, i.e., his adultery.

In his brief and in oral argument before us Mr. Cooper contends that the evidence presented in the trial court relative to adultery on his part was insufficient to support the trial judge’s conclusion that he committed the same. In response to this contention we answer that Mr. Cooper has not appealed nor has he answered his wife’s appeal. Accordingly, we hold that he cannot now attack the findings of fact and reasons for judgment assigned by the trial judge. The question then is whether Mrs. Cooper can have the judgment amended to reflect the above noted factual conclusion of the trial judge.

Mrs. Cooper contends that with the amendment (Act 72 of 1979) to C.C. art. 160, entitling a needy husband without fault to alimony, she is entitled to the protection of having the final judgment reflect the determination of fault on his part. We agree.

The record before us does not disclose why the trial judge declined to amend the formal judgment to reflect Mr. Cooper’s adultery. We assume for the purpose of this opinion that the judge a quo accepted the argument advanced by his counsel, that is, “. .. that in the event the Court finds the main demand of the plaintiff and a divorce proceeding is valid and renders a judgment on the main demand of the plaintiff decreeing a final divorce between the parties, that the final decree takes precedence over the reconventional demand of the other spouse and the reconventional demand of the other spouse must be dismissed.” McCaa v. McCaa, 163 So.2d 434 (La.App. 2nd Cir. 1964); writ refused June 26, 1964; Perry v. Perry, 207 So.2d 819 (La.App. 1st Cir. 1968).

While the McCaa and Perry cases, above, do stand for the proposition offered by Mr. Cooper, they were repudiated by the Supreme Court in Thomason v. Thomason, 355 So.2d 908, 909, 910 (La.1978), wherein the court stated:

“The Court of Appeal in the instant case correctly disposed of the issue when it stated:
‘. Appellant, (Mrs. Thomason) having committed adultery, may not prevail merely because she was first to reach the courthouse ...” 349 So.2d [928] at 931.’
“This result is consistent with the broadened procedural rules for reconventional demands enacted by the legislature in 1960. Code of Civil Procedure article 1061 replaced the rule of article 375 of the Code of Practice of 1870 which required the reconventional demand to be ‘connected with and incidental to’ the main action. Article 1061 provides:
‘The defendant in the principal action may assert in a reconventional demand any action which he may have agains't the plaintiff in the principal action ... regardless of connexity between the principal and reconventional demands. (Emphasis added).’
“This change was intended to ‘permit[s] a defendant to urge against the plaintiff any action which he might have.’ Official Revision Comment to C.C.P. 1061. To allow a defendant to assert his claim against the plaintiff only to have it dismissed when the plaintiff proves his or her claim would defeat the purpose of the revision which was to ‘[encourage] the settlement of all disputes between the parties at one time.’ ” (Footnote omitted)

In Thomason the wife sought a divorce based on the conviction and sentence of the husband at hard labor. The husband reconvened for a divorce on the grounds of adultery. The trial court dismissed both claims on the doctrine of recrimination. The wife alone appealed. The Court of Appeal affirmed but indicated that had the husband appealed he would have prevailed on the basis that adultery is the greater fault. 349 So.2d 928, 931. The Supreme Court reversed and, as noted in the above quotation, abrogated the doctrine of recrimination in divorce proceedings. The Court also noted the husband’s failure to appeal. However, in granting the divorce to the wife it affirmed the mutual fault determination by the trial court.

The difficulty in wording a separation (divorce) decree based on mutual fault was first raised in Brocato v. Brocato, 369 So.2d 1083, 1087 (La.App. 1st Cir. 1979); writ refused, 371 So.2d 1341 (La.1979). Separate suits were consolidated for trial but one common judgment was entered in each. In answering the wife’s objection relative to the wording of the judgment the court stated:

“We find that the wrongs of each party standing alone are sufficient grounds to award the other a judgment of separation. C.C. art. 141 is therefore applicable. “Lastly, Mrs. Brocato claims that it was error on the part of the trial judge to enter judgment in favor of her husband and against her even upon his finding of mutual fault. The signed judgment specifically states it was based on mutual fault and therefore the phraseology indicating a nominal winner is a distinction without a difference.”

It is not our purpose here to proscribe a uniform decree in matters such as this. It is, however, very important that where there is a determination of mutual fault in either a separation or divorce action that the final judgment designate that conclusion in some positive manner. Findings of fact and reasons for judgment by the trial judge do not constitute a part of the final decree unless they are incorporated therein. C.C.P. art. 1918; Dinkins v. Broussard, 196 So.2d 636 (La.App. 1st Cir. 1967). In addition, such findings of fact and reasons for judgment, not incorporated in the final decree, cannot be invoked as res judicata. Petty Realty Co., Inc. v. Continental Casualty Co., 47 So.2d 446 (La.App. 2nd Cir. 1950).

For these reasons the judgment of the district court on the main and reconventional demands is amended to read as follows: “IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein on the main and reconventional demands decreeing a final divorce between the parties, John T. Cooper and Ann Trenchard Cooper, on the grounds of mutual fault.” In all other respects the judgment is affirmed. All costs relating to this appeal are assessed against plaintiff-appel-lee.

AMENDED. AND AFFIRMED.

ON REHEARING GRANTED

PER CURIAM.

We granted a rehearing on the application of appellee, John T. Cooper.

This is a divorce action which was initiated by appellee on the ground of adultery. Appellant, Mrs. Cooper, reconvened for a divorce also on the ground of adultery. The trial court gave judgment to appellee on the principal demand and dismissed appellant’s reconventional demand. However, in reasons for judgment the trial court stated that appellee was not without fault.

Thus, we are confronted with a judgment which is inconsistent with the reasons for judgment. In our original opinion we amended the judgment to conform to the reasons for judgment by decreeing a divorce between the parties on the ground of mutual fault.

In reaching our conclusion we held that appellee could not attack the reasons for judgment because he did not appeal and did not answer the appeal.

Also in our original opinion, we considered the significance of the trial judge’s denial of appellant’s motion to amend the judgment in the trial court to conform to the reasons for judgment and reasoned that the trial judge was probably persuaded by the principle advanced by appellee that when the court renders a judgment on the main demand of the plaintiff in a divorce action, that decree takes precedence over the reconventional demand of the other spouse and the reconventional demand must be dismissed. But we found that the trial judge erred in following appellee’s cases because they were repudiated in Thomason v. Thomason, 355 So.2d 908 (La.1978).

We have now concluded that the above two conclusions in our original opinion were erroneous and we now reach a different result in the case.

Beginning with our holding that ap-pellee was not entitled to attack the reasons for judgment because of his failure to appeal or answer the appeal, we now conclude that this is patently unfair considering the status of the case when it reached this court. The judgment appealed from was in appellee’s favor so there was no reason for him -to take the appeal nor did he have any right to do so since an appeal necessarily means an attempt to change or modify a judgment in some way. See C.C.P. Art. 2082. Similarly, he had no reason to answer the appeal because he had no desire to modify or change the judgment in any way. See Art. 2133. Yet he found himself in a position where appellant was championing the reasons for judgment in order to change the judgment in her favor. It seems clear under these circumstances that appellee could attack the reasons for judgment in defense of the judgment he sought to have affirmed. In any event, because of the conclusion we now reach on the second point, this question of appellee’s right to attack the reasons for judgment is of no consequence.

Following the trial court’s rendition of judgment and handing down of his reasons for judgment appellant filed a motion to amend the judgment so as to conform it to the reasons. The trial court was briefed and heard arguments on the motion, and reached the following conclusions:

“The court, having considered the record and arguments of counsel concludes that the motion for amendment of judgment is not well founded and should be denied, and accordingly;
It is ordered, adjudged and decreed that the above described motion for amendment of judgment filed by defendant, Ann Ruth Trenchard Cooper, be denied.”

It seems clear that this action by the trial judge was his last and final decision in his capacity as the fact finder. He was aware of the reasons for judgment in which he had expressed the belief that appellee was not without fault, he had heard the witnesses, including the parties’ eight year old son who testified that his father committed adultery, and he was directly confronted with appellant’s request to change the judgment he had rendered in appellee’s favor to conform to those findings he had made in his reasons. His decision to deny that motion was in effect a well considered finding of fact that appellant had failed to prove her case of adultery against appellee.

The only question remaining before us is whether the trial judge committed manifest error in this final factual determination. The only evidence in support of appellant’s charge was the testimony of her eight year old son which was not necessarily persuasive and does not provide a basis for us to conclude that the trial judge was clearly wrong in his final conclusion that appellee was without fault.

Accordingly, our original decree is vacated and set aside, and the judgment appealed from is affirmed.

AFFIRMED.  