
    Elizabeth Lambert LANE, Plaintiff-Appellee, v. Trent LANE, Defendant-Appellant.
    No. 6117.
    Court of Appeal of Louisiana. First Circuit.
    June 1, 1964.
    Richard C. Cadwallader, Baton Rouge, for appellant.
    McCollister, Belcher, McCleary & Fazio, by Rolph IT. McCollister, Baton Rouge, for appellee.
    Before ELLIS, LOTTINGER, HER-GET, LANDRY and REID, JJ.
   ELLIS, Judge.

The defendant has appealed from the judgment of the Family Court in and for the Parish of East Baton Rouge, in which the plaintiff was granted a separation “a mensa et thoro” and the permanent care, custody and control of the minor child, Mark Lane, subject to the right of reasonable visitation by the defendant and an award of alimony pendente lite, the sum of $100.00 per month, and maintenance and support for the minor child, Mark Lane, the sum of $50.00 per month, payable in the amounts of $75.00 the first and 15th day of each month, the first payment being due and payable on the 15th day of August, 1963.

The plaintiff was denied attorney’s fees and the cost of the Court were decreed to be borne equally by the plaintiff and defendant.

The plaintiff’s suit was filed in August, 1962 and her main complaints were set forth in Article 4 of her petition as follows:

“(a) Mentally abusing and embarrassing your petitioner on many occasions and specifically on June 16, 1962, at the matrimonial domicile at which time defendant told petitioner to ‘g'et out and don’t come back.’
“(b) Embarrassing and ridiculing your petitioner on many occasions and in particular in front of their daughter on June 16, 1962, by cursing and screaming at your petition.
“(c) Threatening your petitioner by warning her that she would not receive any support or subsistence from defendant if she left.
“(d) Refusing to allow petitioner and her children to have sufficient money for their maintenance in accordance with his ability to support them.
“(e) Striking your petitioner and causing her to need medical treatment as a result of his cruel actions.
“(f) Mentally harrassing your petitioner by his over-bearing ways and mannerisms and his cruel attitude toward petitioner and the children of the marriage, including having his son arrested and incarcerated in jail for 3 days without justification.”

The lower court, after a long trial and much testimony, concluded that both of the parties were guilty of fault but then applied the Louisiana rule, as well stated in Eals v. Swan, 221 La. 329, 59 So.2d 409, 410, wherein the Court stated:

“The Louisiana rule is that while mutual, equal fault operates as a bar to relief being given to either litigant, the courts consider in each case the degree of guilt, and only where there is a finding of fact that the degree of guilt has been equal is the suit dismissed. The rule of comparative rectitude has been impliedly recognized. Each case, however, stands on its own particular set of facts.” (Emphasis added.)

The court then considered the “degree of guilt” and in his reasons dictated in the record stated, “After very deliberate and careful consideration we find the fault of the husband outweighs the fault of the wife; * * After carefully perusing the over 400 pages in this record we are of the opinion that the defendant is at fault and that although it is true that on occasions the wife was guilty of cursing and bemeaning the defendant, such action on her part was brought about by years of silent and active abuse by the defendant. ( These parties were married in 1938 and four children were born, namely; Eric, aged 24; Carson, aged 22; Ruth, aged 20, who is emancipated by marriage prior to the filing of this suit, and Mark, aged 8. In 1954 the plaintiff filed suit for separation against the defendant and was granted such a judgment by the 19th Judicial District Court, in and for the Parish of East Baton Rouge, State of Louisiana in Suit No. 51,703 on the docket of the Court, and as a result the community of acquets and gains was terminated and has never been reestablished. It is clear from the record that plaintiff because of her children came back to the matrimonial domicile and did all in her power to make a home for the children. She obtained a position and from this not only maintained herself but bought clothes for the children. The plaintiff washed the family clothes, cooked, canned vegetables, bought and paid for her own automobile and maintained it. She also purchased electric blankets and other conveniences, which were badly needed in the home as it had only one fireplace and an electric heater in the bathroom. None of the bedrooms had any heat in them. In short, we believe that the plaintiff made a valiant effort and finally became discouraged and at times allowed her temper and feelings toward the defendant to get the better of her.

We do not believe any detailed discussion of the lengthy testimony in this case would serve any useful purpose and we are in full accord with the main findings of fact as dictated into the record by the District Court and we will take the liberty of quoting such portion with approval:

“ * * * The fault on the part of the husband is his attitude with respect to money and finances and the manner in which he has for the past number of years conducted the financial arrangement of the family and more particularly conducted his own financial affairs. By his own admission the children found it difficult to discuss money matters with him which he blames on the wife but the fact remains that the children did and as he stated they felt it a crime to ask him for money. We also find that he was guilty of fault because we do not believe and we think the evidence supports it that he treated either his wife or his children with the fatherly respect that was due them. This is of long standing. By his own admission he had lost the love of his 3 older children and it was for that reason — -it was a major reason why he wanted the custody of his minor child, Mark. We find also that the defendant husband prevailed himself of certain luxuries not to the detriment of his family, because he could have provided other luxuries for his family, but in sort of, in our appreciation of the evidence, of a self-centered manner, namely: the airplane. It was a hobby. He could afford it but he did this and failed to in our opinion, provide other luxuries and necessities to his family. We find that his attitude and conduct towards his wife also to be unreasonable. The couple separated some 8 or 9 years ago and there was a judicial separation between them and there was a property settlement. Shortly thereafter there was a reconciliation and from that day forward they have not only maintained separate property, they have maintained just about everything separately except the roof, including separate bed rooms,
“When the wife worked and earned three to four hundred dollars a month we can understand why the husband could assume that she had enough for her maintenance and support, but when she no longer earned three to four hundred dollars a month but only a hundred dollars a month, and during that period of time attended L.S.U., the defendant made no different arrangement with respect to his wife. She continued in •our opinion to have to fend for herself and also on one or two other occasions with respect to the needs of the daughter.
“Now with respect to his having his son incarcerated. We say incarcerated, that is the expression used in the petition. Actually the father had a series of altercations with the son which ended up by having the son picked up for observation by the Parish Coroner. Frankly we do not believe that the father in this case was unreasonable. We believe that the son encouraged his father or dared his father to pick a fight. He came home intoxicated on several occasions subsequent to his release from the Army in May of 1962. He fired a pistol at the ground at the feet of his father. He made certain other threats and statement to his father and we can fairly say that during the latter part of May or June of 1962 the son had utter disrespect and contempt for his father and to the extent that we feel that his father having him picked up by the Coroner for examination was probably the thing to do.
“We have one other thing we want to discuss about the husband. We do not feel that Mr. Lane was frank and candid with the court. Under cross examination when inquiry was made of him as to his assets, earlier in the hearing he denied having or owning stocks other than Standard Oil Stock or Jersey Stock. After much cross examination and on the 4th day of the trial his complete financial holding finally came to light in the gross amount of some $35,-000.00 and in the net amount of some eight to nine thousand dollars. We believe that the husband by virtue of his training and education, which is that of a chemist, is an extremely exacting person. That he analizes everything in his daily life including his family the way you would a chemical formula. That is his training and we do not believe that he can act otherwise. We observed him through four days of hearing and we believe that he was himself. He was a very meticulous, very exacting and very definite in his opinion. Frankly, this is the way we believe he treated his family. We likewise do not believe that he was candid or honest with the court when he denied ever striking his wife. Now it might be argued that he intended his answer to these questions with reference to the 9 months period but we have again reviewed the testimony and are certain that his answer to that question on 2 occasions was in the negative. On one occasion when his wife was struck in the mouth which required hospitalization. He claimed that to be an accident. On the second occasion the evidence is clear that he went into his wife’s bedroom and there while she was in bed with one of the daughters proceeded to strike and abuse her to the extent that he had to be removed from the room by his son and the door locked. This is corroborated by the testimony of his son and of his daughter. We find it interesting to note that when the trial date in this matter approached the daughter returned to her husband in Virginia, only to be later caught by the deposition. We have read her interrogatories, her answers to the interrogatories direct and cross and find that she has tried to be as fair to both as you can possibly be. The gist of her testimony was to the effect that her father did not do all within his power to make their home happy and comfortable. She corroborated her father’s testimony in many respects regarding his contribution to her and to her needs but she completely repudiated his testimony with respect to the care the mother kept of the house; the manner in which she prepared the food and who in fact took care of Mark. We think also indicative of the husband’s general attitude was the question of heat for the family home. There can be no doubt but the heat in the family home consisted of a fire place and an electric heater. The oldest — the second oldest boy testified that he never had heat in his room. The wife testified how on occasions it was necessary for them to put an electric heater under the table in her bedroom when she and her daughter prepared their lessons.
“Now enough for the father. The fault of the wife is that she really never forgave her husband for the physical abuse he undoubtedly heaped upon her on two previous occasions some years ago. That since the reconciliation some 8 years ago this couple has never really reconciled. There is no doubt in our mind that on a number of these occasions she in fact provoked the argument. There is no doubt in our mind also that she continually reminded her husband that she would eventually leave. She had stated that when the children were gone she would be not far behind. This is admitted by the plaintiff and by all parties concerned. * * *
“We believe that she was not ordered out of her house on June 16th as she stated in her petition. She had already elected to leave whereupon her husband told her if she was leaving to leave. We do not find that this is a case of either direct abandonment on the part of the wife or constructive abandonment on the part of the husband by ordering her to leave. It is noteworthy that she left home on the occasion the daughter Ruth had concluded plans to reside with a couple in Baton Rouge for the purpose of attending their infant daughter while going to L.S.U. in return for her room and board. To me this is also indicative of the marital discord in the family.
“Now we have pondered long and hard about this case and we have read and reread the testimony and we must come to the conclusion as to which fault outweighs the other if in fact it does. After very deliberate and careful consideration we find that the fault of the husband outweighs the fault of the wife; that his continual concern about finances, notwithstanding the fact that they were separate in property, and the manner in which the family finances were conducted continued right up to the time of the separation. He was earning gross $9,000.00 per year, that his wife was earning $100.00 per month or $1200.00 per year and out of which she furnished all of her clothes, a substantial portion of clothes for the child, Mark, her own transportation. This case would be easier to decide if there was anywhere in the record that the wife asked her husband for support and we frankly admit that she did not. It would be interesting to note whether he would have complied. We doubt that because on one occasion he was asked if he would furnish his wife with a new car, his having- purchased a new one in 1962, and he said frankly no because she was of separate maintenance. I think that really indicates the financial arrangement of these parties and in particular the attitude of the plaintiff.”

While counsel for defendant has written an able and exhaustive brief, under the facts which we believe are fully supported by the record, the judgment of the lower court is correct.

Judgment affirmed.

HERGET, Judge

(dissenting).

Defendant, Trent Lane, appealed to this Court from an adverse judgment in favor of plaintiff, Elizabeth Lambert Lane, decreeing a separation “a mensa et thoro”; awarding to plaintiff the custody and control of the minor child, Mark Lane, subject to the right of reasonable visitation by defendant ; fixing alimony pendente lite at the sum of $100 per month for the support of Elizabeth Lambert Lane and $50 per month for the maintenance of the minor child; denying attorney’s fee requested by Plaintiff and ordering the costs of court to be borne equally by Plaintiff and Defendant.

The record reveals plaintiff instituted this suit seeking a judgment of separation from her husband on September 4, 1962 on various alleged acts of intense physical and mental cruelty; and a supplemental and amending petition was thereafter filed by her emphasizing particular acts of cruelty upon which she relied for a judgment of separation.

Defendant answered, denying the acts of cruelty and by way of reconventional demand prayed for judgment of separation from his wife for the alleged act of abandonment by Plaintiff, Defendant in recon-vention, and enumerated acts of alleged cruelty by her and sought the custody of the minor son, Mark Lane.

Following a lengthy trial — the record in the case consisting of two volumes of 239 and 495 pages respectively — wherein the litigants themselves and through other witnesses related factual evidence to prove their respective allegations, the learned Trial Judge, who displayed the patience of Job, for oral reasons assigned but dictated in the record, concluded both parties were guilty of acts of cruelty toward the other. However, recognizing the rule in Louisiana to be equal fault operates as a bar to relief being given either party and, further, the application of this rule being predicated upon the finding of fact the degree of guilt of the parties has been equal, the Court concluded with apparent reluctance and difficulty, the fault of the husband to be of a greater degree than that of the wife, and, accordingly, granted a judgment “a mensa et thoro” in favor of the wife.

The evidence reflects that some years prior to the present suit a judgment of separation from bed and board had been decreed between these parties and a community property settlement entered into. Subsequent thereto, however, they resumed their marriage but did not re-establish the community of acquets and gains.

In Eals v. Swan, 221 La. 329, 59 So.2d 409, the Supreme Court said:

“In Snell v. Aucoin, 158 La. 767, 776, 104 So. 709, 712, we find:
‘We have read the record carefully, and from a consideration of all of the testimony offered in the case we have reached the deliberate conclusion that the plaintiff and defendant are each chargeable with acts of omission and commission towards each other, of mutual wrongs of a like character and proportional degree.
“ ‘ “The law which provides for a separation from bed and board in certain cases is made for the relief of the oppressed party, not for interfering in quarrels where both parties commit reciprocal excesses and outrages.” Trowbridge v. Carlin, 12 La.Ann. 882; De Lalande v. Jose [Jore], 5 La.Ann. [32] 33; Naulet v. Dubois, 6 La.Ann. 403; Castanedo v. Fortier, 34 La.Ann. 135; Amy v. Berard, 49 La.Ann. 897, 22 So. 48; Durand v. Her Husband, 4 Mart., O.S., 174.
“ 'Where the spouses are guilty of mutual wrongs towards each other of the same character and so proportional that it is difficult to ascertain which party is mainly at fault, the courts will not interfere or grant relief to either. Werner v. Kelly, 9 La.Ann. 60; Thomas v. Tilleu [Tailleu], 13 La.Ann. 127; Dillon v. Dillon, 32 La.Ann. 643; Machado v. Bonet, 39 La.Ann. 475, 2 So. 49; Duhon v. Duhon, 110 La. [240] 242, 34 So. 428; Ducros v. Ducros, 156 La. [1033] 1034, 101 So. 4077

The wisdom of refusing to judicially interfere or grant court relief to cither party where the spouses are guilty of mutual wrongs of the same character and to the same proportionate degree toward each other is made evident by this voluminous record.

Both of these parties possess a high intellectual quotient, and, equally, both are given to uncontrolled displays of emotion, in consequence of which the alleged acts of cruelty resulted. Inasmuch as for the reasons hereinafter assigned I have concluded the judgment of the Family Court granting a separation from bed and board should be reversed, no useful purpose could be served by maldng public the facts giving rise to the charges of cruelty made by each of the parties.

To the shame of both parties — though this marriage was blessed with four fine children, all possessed of high intellectual quotients — each parent was guilty of selfishly using the children as pawns to emotionally aggravate and disturb the other. Because of the constant bickering and outrages toward each other-their children were made innocent victims. However, despite such unsavory family relationship, to the everlasting credit of these children, it appears from the record they withstood the emotional strain, and three of them, now grown, have weathered this unfortunate condition by leading normal, full lives. They are apparently devoted to each parent alike and are unwilling to take sides in the marital disputes between their father and mother. Only one of the children is still a minor. In their respective efforts to hurt the other, it is difficult to appraise the suffering each of the parties to this marriage caused these children.

From my reading of the entire record in this case, though on many occasions each of the parties was shown to be guilty of cruelty toward the other resulting from their selfish, uncontrolled emotional actions, it is apparent, despite such facts, there is now and has always been a degree of admiration and respect for the other. For this relationship to have remained steadfast through the years of turbulence of this marriage sufficient to reveal to one reading the record the mutual respect and admiration that existed between them, should, with equal thought, somehow bring these litigants to a calm, sober, reconsideration of each other and a re-assessment and correction of the faults each has been guilty of.

Where, as in this case, each party has been guilty of acts of cruelty toward the other and have committed reciprocal excesses and outrages, I am firmly of the opinion each being guilty of acts of omission and commission towards each other, of mutual wrongs of a like character and proportional degree, neither is entitled to the relief which he seeks. Fortunately, I find the actions which caused these parties to separate basically resulted from their failure to control their emotions. Allegations of facts of a serious nature made by each party which could, if proven, give right to a judgment of separation to the successful party were eliminated from consideration when, upon the trial of the case, no evidence was offered in support thereof and same were retracted.

With the admonition, a good definition of a happy home is one wherein the husband brings home the bacon and the wife cooks it, I am of the opinion these parties should resume their marital realtions, re-establish the community of acquets and gains, and together, while fortunately there remains time to do so, give to these children the happy home life they so rightly deserve.

For these reasons I am of the opinion the judgment of the Family Court should be reversed and judgment rendered rejecting the demands of the parties, dismissing Plaintiff’s suit at her cost and Defendant’s reconventional demand at his cost.

I respectfully dissent.  