
    Jo Ann Joris GALLAGHER, Plaintiff-Appellant, v. James Albert GALLAGHER, Defendant-Appellee.
    No. 10273.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 1, 1964.
    On Rehearing March 17, 1965.
    Rehearing Denied April 28, 1965.
    Writ Granted June 10, 1965.
    
      Love, Rigby & Donovan, Shreveport, for appellant.
    Martin S. Sanders, Jr., Winnfield, for ap-pellee.
    Before HARDY, AYRES and BOLIN, JJ.
   AYRES, Judge.

By this action plaintiff sought, on the grounds of cruelty, a judgment of separation “a mensa et thoro” from her husband, a dissolution of the community, with recognition of her interest in the community estate, and custody of her two minor children, with alimony pendente lite for her and the minors’ support. The defendant in reconvention likewise sought, on the grounds of cruelty, desertion, and abandonment, a separation from his wife.

On trial, plaintiff’s demands, except as to the custody of the children, who were awarded to her, were rejected. Defendant was granted a judgment of separation on the ground of abandonment. No award of alimony was made. From the judgment thus rendered, plaintiff appealed.

First for consideration is plaintiff’s motion to remand this cause for a new trial. The motion is directed to the failure of the judgment to award alimony pendente lite for plaintiff’s and the minors’ support and points up certain inaccuracies in defendant’s testimony with reference to his employment and income. The truth of the matters of which plaintiff complains was apparently established in a hearing on a rule subsequent to the trial of this cause on its merits. A transcript of the proceedings had on trial of that rule, a copy of which is attached to plaintiff’s motion, reflects that plaintiff was awarded alimony pendente lite in the sum of $100 per month. No complaint is made with reference to the adequacy of the award. Nor does plaintiff now complain as to a failure of the judgment to award the minors’ support in view of an order of the juvenile court directing the defendant to pay $150 per month for their support. Moreover, it may be observed that plaintiff, so far as this motion is concerned, is not shown to be dissatisfied with the award as made on the trial of the aforesaid rule. Nevertheless, it may be pointed out that she has, or at least had, an adequate remedy by an appeal from that judgment, if she considered the award insufficient. The motion, for the aforesaid reasons, is without merit and must therefore be overruled.

On the merits of this case, plaintiff complains of the rulings of the trial court in excluding certain of her evidence. Thus, it is contended that she was prejudiced and reversible error was committed by the court.

The language of the allegations of plaintiff’s petition constitutes the basis for the court’s rulings. Plaintiff alleged that she and defendant “voluntarily separated on or about March 17, 1964.” Following this statement are allegations enumerating and detailing numerous acts of alleged cruelty and inhuman treatment committed prior to the separation. None of these was asserted to be a cause or the cause of their separation. Evidence as to these, except as to one instance which the court reasoned might possibly have served as a cause of the separation, was excluded on the theory that such evidence could only be admitted to show a course of conduct corroborative of an incident precipitating the separation and thus a course of conduct rendering their living together longer as husband and wife insupportable.

From our review of the record, we do not find that plaintiff was unduly hampered or hindered in the trial of the case or in the presentation of evidence; ’ nor do we find that plaintiff was prejudiced by the rulings of the court. The court expressed to counsel a preference in having first presented evidence as to the acts of cruelty relied upon as a basis or cause of the separation, to be followed by whatever corroborative evidence plaintiff desired to offer.

Plaintiff relies upon a rule early established in the jurisprudence of this State to the effect that a party is not bound to adopt any particular order in the introduction of his evidence in the presentation of his case; that he may prove the various facts in the order he prefers, and may, therefore, exercise his own judgment as to the order of the introduction of his proof, in the absence of a rule specifying a particular order, and cites in support thereof the following cases: Maurin v. Chambers and Williams, 16 La. 207; Brander et al. v. Ferriday, Bennett & Co., 16 La. 296; Jones v. Young, 19 La. 553; Lynch v. Benton, 3 Rob. 105; Doyle’s Ex’rs v. Estornet et al., 13 La.Ann. 318; Gordon v. Millaudon, 16 La.Ann. 347.

Nevertheless, we may point out that trial courts may exercise discretion in the trial of cases in the interest of justice. LSA-C.C.P. Art. 1631 provides:

“The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.”

We therefore conclude that the court did not abuse its discretion in directing that evidence as to the fact or incident precipitating or causing the separation he introduced before proof of a corroborating nature be adduced. Plaintiff was not deprived of any substantial rights; nor was she prejudiced by the ruling made.

We do not deem it necessary to discuss, in detail, the testimony offered by plaintiff. It suffices to state that plaintiff has failed to establish her case by a reasonable preponderance of the evidence and to such a degree of legal certainty as would warrant a judgment of separation. On the contrary, defendant’s evidence establishes that plaintiff left the matrimonial domicile and refused to go with him to New Orleans where his employment required that he reside. In fact, plaintiff’s own testimony supports defendant’s position in this regard. We therefore find no error in the judgment granting defendant a separation.

Finally, we may point out that the judgment inures to plaintiff’s benefit as well as to that of the defendant. She was awarded custody of the children and, in separate proceedings, the defendant was condemned for her, as well as the minors’, support. A remand of the cause for a new trial would avail her nothing inasmuch as she has acquired all the relief which she could hope to obtain should a new trial be granted and should she be then awarded all the relief for which she prays.

We do feel that plaintiff should not be required to pay court cost out of the awards made for her and the minors’ support. Therefore, in the exercise of the discretion vested in us by LSA-C.C.P. Art. 2164, the cost of the trial court, as well as the cost incurred on appeal, will be assessed to defendant.

The judgment appealed is therefore amended by taxing defendant-appellee with all costs, and, as thus amended, it is affirmed.

Amended and affirmed.

On Rehearing

BOLIN, Judge.

In our original opinion appears the following :

“Finally, we may point out that the judgment inures to plaintiff’s benefit as well as to that of the defendant. She was awarded custody of the children and, in separate proceedings, the defendant was condemned for her, as well as the minors’, support. A remand of the cause for a new trial would avail her nothing inasmuch as she has acquired all the relief which she ccnild hope to obtain should a new trial be granted and should she be then awarded all the relief for which she prays.” (Emphasis supplied.)

In her application ior rehearing, Mrs. Gallagher points out, among other things, that we fell into grievous error in saying she had not been prejudiced by the lower court’s decree. Upon reexamination of our original opinion we readily concede the statement quoted from the opinion is incorrect. The question of whether the wife or husband is the successful party in obtaining the judgment of separation is vitally important. If the husband obtains the separation the judgment condemns the wife to the world as the person responsible for breaking up the marriage.

A second, and more tangible, difference is that since Mr. Gallagher obtained the judgment of separation, Mrs. Gallagher is precluded, under LSA-Civil Code Article 160, from obtaining permanent alimony upon the rendition of a final judgment of divorce. The obtaining of the judgment of separation by the wife is a judicial determination that she is free from fault, and the obtaining of the judgment of separation by the husband (excluding the one-year ground) is an adjudication of fault on the part of the wife relieving the husband of the obligation of paying her alimón}*- after the judgment of final divorce. August v. Blache, 200 La. 1029, 9 So.2d 402 (1942); Sachse v. Sachse (La.App. 1 Cir., 1963) 150 So.2d 772.

This rehearing not being restricted to a consideration of the matter discussed above, we have re-examined the entire rec-cord. We now conclude we were in error in affirming the lower court’s ruling rejecting the wife’s demands for a separation on the ground of cruelty and in granting the husband a separation under his reconven-tional demand on the ground of abandonment. We now conclude the husband was guilty of such cruel treatment as to have entitled the wife to a separation under her main demands.

After careful scrutiny of the record, and particularly the testimony submitted in connection with plaintiff’s motion to remand, we have reluctantly come to the conclusion Mr. Gallagher testified falsely during the original trial on at least two questions. He stated he was unemployed on May IS and May 21, when in truth and fact on these dates he was employed as President of a mortgage corporation at a net salary of $719.54 per month. Mr. Gallagher also falsely testified during the trial that he was not the owner of a 1964 model Buick automobile when the record shows he was. Under these circumstances the testimony of Mr. Gallagher should be accorded little, if any, weight in determining the merits of the separation suit.

Excluding the husband’s testimony, the evidence is uniform and convincing that Mr. Gallagher, while not guilty of physical cruel treatment, was guilty of such cruelty as to render their living together unbearable and insupportable within the meaning of Louisiana Civil Code Article (3) as interpreted by our jurisprudence. See Carriere v. Carriere (La.App. 3 Cir., 1962) 147 So.2d 668 and cases cited therein. We find the evidence supports the following nonexclusive acts:

1. Consistently absenting himself from his wife and matrimonial domicile and returning at all hours of the night without any explanation as to his whereabouts.
2. Engaging in social drinking with women other than his wife both in public and private and on some occasions when no other parties were present.
3. By consistently being cold and indifferent to his wife, even during the periods of her pregnancy and of the birth of her youngest child.

If the above enunciated acts of indiscretion had been isolated incidents our ruling might be different, but we are constrained to hold that the husband’s conduct considered as a whole reflects a pattern of conduct constituting mental cruelty toward his wife which made their continued living together unbearable and justified her in moving out of the matrimonial domicile.

For the reasons assigned the judgment appealed from is amended and recast and there is now judgment in favor of plaintiff, Jo' Ann Joris Gallagher, and against defendant, James Albert Gallagher, decreeing a separation from bed and board between them and awarding the care, custody and control of the minors, Diana Gallagher and Dawne Gallagher, to plaintiff with full visitation rights reserved to the father. All costs are assessed against defendant.

Amended and recast  