
    109 So.2d 910
    Joshua L. BUTLER, Jr. v. Yvonne HUREL, wife of Joshua L. BUTLER, Jr.
    No. 43386.
    March 23, 1959.
    Fournet, C. J., and McCaleb, J., dissented.
    Joseph F. Monie, New Orleans, for defendant and appellant.
    Arlice Roby Crockett, New Orleans, for plaintiff and appellee.
   HAMITER, Justice.

The defendant herein is appealing from a judgment which granted to the plaintiff husband an absolute divorce, on the ground of adultery, and also the custody of the two minor children born of their marriage. In support of his ruling the trial judge assigned the following written reasons: “The evidence as produced by the plaintiff herein, being in the form of direct evidence as to observations made by disinterested and unbiased witnesses, convinces the Court that acts of adultery did take place by the defendant herein with someone as alleged in the petition to be known by the name of Johnny Carbor; and thus the Court being of the opinion that the wife is guilty of adultery, that she should not under those conditions have custody, care and control of the minor children; :jc *

According to the testimony of plaintiff and of three men friends produced as witnesses in his behalf they, while seated in a parked automobile, observed during the nights of certain specified dates (April 5, 6, 7, 8 and 9, 1956) another man entering the house in which the defendant was then living. Shortly thereafter they went into an alley alongside the house and, by looking through a window, saw such man and the defendant in bed together covered by a sheet. In the house at the time were no other persons and no lights, except one in the kitchen which cast its reflection into defendant’s adjoining bedroom.

Of course, the defendant denied plaintiff’s accusations, and in support of the denial she offered the testimony of several witnesses (including her own and that of her mother). This evidence was to the effect that she and her two children lived in the above mentioned house with her mother who, on the dates that the acts of adultery allegedly occurred, was ill and confined to bed; that during the n'ghts in question all lights of the house were on until about eleven o’clock and the mother was attended by a friend; and that, under the existing conditions, the mother and her friend would have had knowledge of the adulterous conduct charged to the defendant had it taken place.

Thus, the case presents solely a question of fact the resolution of which, in view of the hopeless conflict between the evidence of plaintiff and that of defendant, depends exclusively on the credibility of the witnesses. And in a controversy of this nature we have held on innumerable occasions that in the absence of manifest error we will not disturb the judgment of the trial court. Arnold v. Arnold, 186 La. 323, 172 So. 172; Lejeune v. Lejeune, 187 La. 339, 174 So. 643; Barnes v. Le Blanc, 207 La. 989, 22 So.2d 404; Wojahn v. Soniat, 211 La. 562, 30 So.2d 431; Rayner v. Rayner, 216 La. 1099, 45 So.2d 637; Clay v. Clay, 221 La. 254, 59 So.2d 180.

True, as defense counsel points out, there are discrepancies in the testimony of plaintiff and his witnesses. However, it is true also that there are contradictions in the testimony of defendant and her witnesses.

As being in corroboration of the testimony offered by the defendant, that the mentioned mother was ill and confined to her bed at the time of the occurrence of the alleged adulterous relations, defense counsel directs our attention to a cancelled check and a check stub indicating two payments by the defendant (one for $5 and the other for $6) to a Dr. Braden for medical services. But these documents are of no probative value here; they are dated, respectively, March 26, 1956 and March 30, ,1956 (several days prior to the dates in question), and there is no notation on either to suggest that the services rendered were in the nature of house calls to and on behalf of the mother,

Defense counsel also calls attention to the fact that some nine months prior to the institution of the instant suit a judgment .was rendered in another proceeding which granted to the plaintiff a separation from bed and board (on the grounds of cruel treatment and abandonment by the wife), awarded to the defendant the custody of the minor children, and condemned plaintiff to pay $75 per month for the children’s support. And, based on that judgment, counsel offers the contention (as alleged in defendant’s pleadings from which we quote) that “ * * * plaintiff herein has well calculated and filed this suit primarily to act as a smoke-screen to delay and stop and avoid the payment of alimony for the support of his children, and to attempt to belittle and embarrass and humiliate your respondent.” The answer to 'this contention is that the present suit was justified if the testimony given here by plaintiff and his witnesses is true and correct • (the trial judge accepted it as being so).

Since there is a hopeless conflict between the evidence of plaintiff and that of defendant (all of which has been carefully read) we are unable to conclude that the trial judge, who saw and heard the witnesses and undoubtedly took into consideration the numerous discrepancies contained in their testimony, manifestly erred in his findings of fact and conclusion. Accordingly, and consonant with the above announced and well established rule, the judgment rendered should not and will not be disturbed.

For the reasons assigned the judgment appealed from is affirmed at appellant’s costs.

FOURNET, C. J., dissents being of the opinion the evidence lacks the credulity in order to be convincing — especially in so far as to grant the custody of the children to the father.

McCALEB, Justice

(dissenting).

After a scrutiny of plaintiff’s evidence in this case, I entertain grave doubt that the alleged acts of adultery charged in the petition were committed. In the first place, it appears unlikely to me that defendant would have been so bold as to have perpetrated such acts in the home of her mother, where her children were sleeping, on five successive nights at th'e same hour (between 8:30 and 10:00 o’clock p. m.) each night. Then, too, the open manner in which the alleged acts of a,dultery were performed and the way plaintiff and his friends detected them, appears highly improbable.

The substance of the testimony of plaintiff and his three witnesses is that, on April 5, 6, 7, 8 and 9, 1956, between the hours of 8:30 and 10 :00 p. m., they saw a man, who wore khaki pants and a red baseball cap, walk into the front yard and down an alley alongside the residence to the rear of the house, where he entered. They declared that, shortly thereafter, they proceeded along the alley until they arrived beneath the window of defendant’s bedroom, where they “boosted each other up” to an elevation where they peeked through the open window and witnessed defendant in bed with this man. Each one of the four participants in this peeping expedition declares that he saw defendant in bed with the man (some of them say that they were naked) when he was elevated to the window by the others. They further state that their view was made possible by the reflection of the kitchen light into defendant’s bedroom, this being the only light burning in the house at the time.

It is of course the rule, as stated in the majority opinion, that this court will not disturb the finding of a trial judge on facts unless manifestly erroneous. For my part, I believe that the trial judge erred in holding that plaintiff’s testimony preponderated over that of defendant and her witnesses.

I respectfully dissent.  