text:
    Lovett D. MIZE v. BEKER INDUSTRIES CORP., the Duriron Company, Inc., Mechanical Services, Inc., Lou Cupler, Ralph Tucker, Percy Colon, Lester Breaux, Jack Dano and Glenn Breau.
    No. 83-CA-333.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.
    Gregory F. Gambel, Cummings & Gam-bel, New Orleans, for plaintiff-appellant.
    Stanley Renneker, McGlinchey, Stafford, Mintz & Cellini, New Orleans, for defendants-appellees.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   GAUDIN, Judge.

Lovett D. Mize instituted this tort proceeding against several corporations and various supervisory personnel in the 29th Judicial District Court seeking damages because of an on-the-job injury. Defendants’ motion for summary judgment was granted by the trial judge and the case dismissed.

Appellant contends that his pleadings sufficiently set forth a claim and that there are genuine issues of material fact requiring a trial. For reasons following, we do not agree.

In accord with LSA-R.S. 23:1032, an injured employee is limited to workmen’s compensation benefits unless (1) he was engaged in an activity outside the normal course and scope of his regular employment or (2) his injury was the result of an intentional act.

A maintenance mechanic, Mize was hurt, according to the petition, while he was working “... at the Beker Chemical Plant ... when acid suddenly and without warning came from a system which had been locked off...” The acid sprayed appellant’s face, injuring his eyes.

Appellant’s original pleading lists various acts of negligence “... sufficient to constitute a negligent act ... ” and further alleges that several defendants negligently undertook activities “... outside the normal course and scope of their employment in that they failed to possess the requisite expertise in providing safe transfer of acid.”

In the supplemental and aménded petition, appellant states that defendants’ “... negligence was sufficient to constitute an intentional act, the injury was forseeable and it could have been anticipated that failure to take proper precautionary steps the harm involved would have occurred and therefore the defendant intended the harm.”

In response, the defendants denied these allegations and further said that appellant’s injury was caused or partially caused by his own negligence. Also, defendants alleged that appellant’s sole remedy was under the workmen’s compensation statutes. Subsequently, a motion for summary judgment was filed, supported by an affidavit executed by Louis J. Kupfer, the vice president of Beker and one of the named defendants.

The trial judge did not assign reasons for granting the motion for summary judgment, but no doubt he concluded (1) that Mize was working within the course and scope of his normal employment and (2) that appellant’s pleadings did not sufficiently allege facts or events that would support a claim outside of workmen’s compensation.

Concerning (1) above, Kupfer’s affidavit states unequivocably that Mize was working within the course and scope of his employment, and appellant did not file countervailing affidavits as suggested by LSA-C.C.P. art. 967. On appeal, Mize does not strenuously argue that he was working outside of his expected employment.

With regard to (2), Louisiana courts have been reluctant to classify even negligent acts as intentional within the meaning of R.S. 23:1032. See Bazley v. Tortorich, 397 So.2d 475 (La.1981), and Citizen v. Theodore Daigle and Brother, Inc., 418 So.2d 598 (La.1982). In Citizen, the pointing of a gun at and the shooting of one employee by another were found by the Supreme Court of Louisiana to be unintentional insofar as R.S. 23:1032 was concerned.

In Reagan v. Olinkraft, Inc., 408 So.2d 937 (La.App. 2nd Cir.1981), writ denied March 19, 1982, the court discussed at length the necessity of adequately pleading a tort action by an injured worker.

The court said at page 940:

“It is evident that there is a wide gulf between what the petition alleges and what Bazley requires. This gap cannot be closed under the guise of liberal construction of pleadings. The best the petition can be said to allege is that the defendants knew there was a fair chance that Reagan’s death might result from their decision, while Bazley requires an allegation that the defendants knew there was almost no chance of anything other than death resulting.
Even if plaintiff proved all of the allegations of the petition, she would still be limited to workers’ compensation benefits...”

Here, the situation is the same. Should Mize prove all of his allegations, he would likely establish negligence but not that any defendant wanted appellant hurt or that any defendant knew that there was almost no chance of anything but an accident occurring.

Counsel for appellant argues that this State’s jurisprudence has not provided functional guidelines with regard to the definition of an intentional act. For example, the defendant’s conduct in Citizen could well be classified as criminal yet it was held not to be intentional regarding R.S. 23:1032.

This much, however, seems certain: For an injured worker to pursue an R.S. 23:1032 tort claim, he must precisely allege acts or omissions that call for almost the same degree of proof as that required in a criminal proceeding. Otherwise, the petition language falls short, as it does in the instant case.

We therefore affirm the decision of the 29th Judicial District Court granting the motion for summary judgment filed by defendants-appellees.

AFFIRMED.


source: Caselaw Access Project

author: GRISBAUM, Judge.

license: Public Domain

text:
    Roma and Joseph QUARTANA v. David JENKS, et al.
    No. 82-CA-184.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.
    Rehearing Denied Sept. 16, 1983.
    Writ Denied Nov. 18,1983.

      Hammett, Leake & Hammett, W. Paul Andersson, New Orleans, for plaintiffs-ap-pellees.
    John F. Tooley, Jr., Gretna, for defendants, plaintiffs-in-reconvention-appellants.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

This case involves a protracted dispute between three shareholders of a small corporation formed to operate a restaurant. It is primarily concerned with allegations that one officer/shareholder breached a fiduciary responsibility toward the corporation and conspired to gain control of the corporation by illegal means. The trial court found the evidence insufficient to support these allegations. We affirm.

In the spring of 1974 three friends, Roma Quartana, Rommayne Jenks, and Pat Farley joined together to form a corporation named Progressive Arts, Inc. As equal shareholders, these three women acquired restaurant equipment and the lease of the restaurant location and executed a loan in which they were co-obligors along with two of their husbands. The promissory note was secured by a collateral chattel mortgage of the restaurant equipment. All three shareholders initially worked in the restaurant in some capacity. Soon after the restaurant opened, there was disagreement among the shareholders as to its management. After July, Mrs. Jenks and Mrs. Farley operated the restaurant together; Mrs. Quartana, however, became inactive as to management but continued to take care of their records.

In October of 1974 thé business closed. The restaurant owed money to suppliers and utility companies; rental and note payments were also past due. In order to avoid being sued on the note, Mr. and Mrs. Quartana approached the bank and “acquired” the note from the bank with full rights to all security (the collateral mortgage on restaurant equipment and fixtures and supposedly an assignment of the lease). They then filed suit by exécutory process against the corporation and the remaining co-debtors. This original petition was styled as a suit on a promissory note.

The defendants, Rommayne Jenks, Pat Farley and her husband, enjoined the judicial sale claiming that the executory process against them was improper since the corporation assets had not been exhausted (they claimed the maker of the note was Progressive Arts, Inc. and all of the individual parties were simply endorsers). The plaintiffs amended their petition to proceed against the corporation and reserved their right to proceed for deficiency judgment against the individual defendants if the proceeds of the judicial sale were insufficient to satisfy their claims. The property was appraised by three appraisers, one of which was chosen by defendants. A sheriff’s sale was held, but only the plaintiffs appeared and bid on the chattels. No objections were filed against the judicial sale nor were any writs or appeals taken respecting the propriety of the sale. The sale of the chattels amounted to $2217.37, which was insufficient to satisfy the plaintiffs’ claim; therefore, plaintiffs converted the proceeding to via ordinaria and sought a deficiency judgment against the corporation and the remaining shareholders and the husband of one of the shareholders.

Various aspects of the case have been previously presented to the Louisiana Fourth Circuit Court of Appeals and the Louisiana Supreme Court. Pertinent to this appeal, however, is the Fourth Circuit’s decision rendered February 14, 1978 (355 So.2d 607) in which a summary judgment was affirmed in part, reversed in part, and remanded. That Court found, among other things, that plaintiffs’ suit was one for contribution rather than a suit on a note. Its decision limited any award to plaintiffs to a contribution by defendants for their proportionate share of the promissory note paid by the plaintiffs and remanded the case to give defendants an opportunity to present evidence on a reconventional demand which claimed fraud and pirating of the business. It is the trial court’s determination of the reconventional demand on remand from which defendants appeal.

The trial court on remand found in favor of Roma and Joseph Quartana and against the corporation and David Jenks, Rom-mayne Jenks, and Pat Farley and dismissed the reconventional demand of these defendants.

While various errors on appeal are cited by defendants, their contentions can be summarized in the following manner: that Mrs. Quartana as a shareholder and officer violated her fiduciary responsibility to the corporation; that the plaintiffs (Mr. and Mrs. Quartana) conspired to gain control of the corporation by illegal means, and, finally, that the trial court failed to require plaintiffs to give “full value” to the assets plaintiffs acquired from the corporation.

Louisiana law imposes on corporate officers and directors a fiduciary duty to the corporation and its shareholders. La. R.S. 12:91; Noe v. Roussel, 310 So.2d 806, 807, 817-818 (La.1975). The evidence supports the trial court’s conclusion that Mrs. Quartana as an officer of the corporation did not violate her fiduciary obligation owed to the corporation and its shareholders.

Defendants claim Mrs. Quartana, as president, breached her fiduciary duty by allowing “the corporation to be defaulted”, dismissing the individual defendants from the suit in order that their defenses could not be raised, and dealing with the corporate assets in such a way as not to be in the best interest of the corporation and the remaining shareholders. These contentions are without merit. Mrs. Quartana by paying the promissory note owed to the bank, in fact, protected the corporation from the default of this note. Moreover, the individual shareholders were dismissed from the original “suit on the note” upon their own motion. During the period of time when the two majority shareholders were in control of the restaurant, there were many attempts by both sides to buy the other out. We agree with the trial court’s conclusion that this business failed because it was not run properly, and we are also unable to lay the blame for the demise of the restaurant at the feet of any of the three women.

As to defendants’ argument that Mrs. Quartana dealt with corporate assets for her own benefit and adversely to the corporation, we find that Mrs. Quartana carried her burden of establishing that the acquisition of the corporation’s property, by a process of paying the debt, then suing the corporation and its shareholders for reimbursement, and finally acquiring restaurant equipment at a judicial sale of the property, was an arms length transaction and was. fair to the corporation. Moreover, three appraisers, one of whom was chosen by the defendants, appraised the restaurant equipment. The equipment and fixtures were sold at public auction after these appraisals. While the auction was open to the public, including the two majority shareholders, only the Quartanas were present for the sale. In his reasons for judgment, the trial judge stated the following:

The fact that Mrs, Quartana was the president and agent for service of process of the corporation formed by the three ladies did not give her an advantage over the other operators of the business because any notices which she received were properly transmitted to defendants by certified mail.

The trial court also found that the Quarta-nas “lost money along with Mrs. Jenks and Mrs. Farley and perhaps to a greater degree.” After careful review of the record, we agree with the trial court that Mrs. Quartana as president did not personally gain from the corporation. No unfair advantage was taken by Mrs. Quartana as president of the corporation.

Responding to the issue of whether plaintiffs conspired to gain control of the corporation by illegal means, the trial judge stated in his reasons for judgment:

The Court has searched the evidence for some finding of fact which would indicate that the Quartanas were deliberately attempting to deceive and defraud the defendants with the ultimate aim of profiting thereby. Such proof is not evident and the Court has come to the conclusion that this was a business misadventure from the beginning and all the parties must share in the payment of the note by Mr. Quartana.

We, too, find in the record no evidence that fraud or illegal means were used to gain control of the corporation.

Finally, defendants contend that the real value of the assets which plaintiffs acquired at the public auction was the value of the assets when the corporation began, namely, $26,000 instead of the amount given for the equipment at the judicial sale ($2217.37). Arguably, the restaurant equipment may have been worth more; defendants’ appraiser testified at trial that had he known the equipment was not to be moved he would have given a higher value to certain items. Other testimony as to the .assets’ worth was sketchy. On the other hand, Mrs. Quartana has shown that the transaction by which she and her husband acquired corporate assets was fair. Moreover, the propriety of the judicial sale was not attacked within the appropriate delay period. We cannot agree with defendants that this court should somehow now adjust the value of the equipment to $26,000 and give credit for that amount towards the indebtedness owed by defendants.

Since we do not find that Mrs. Quartana breached her fiduciary duty to the corporation and its shareholders nor do we find that fraud or illegal means were used to take over the corporation, plaintiffs are entitled to judgment in this matter. We note the Fourth Circuit previously held in its 1978 judgment in this proceeding that the appropriate credits against the adjusted purchase price of the note ($16,465.33) are the proceeds of the judicial sale ($2217.37) and the value of the lease (On remand the lease was found to have no value since it was unassignable). The trial judge rendered judgment in accordance with that opinion. We, therefore, affirm the trial court’s judgment. Appellants-defendants are cast for all costs of this appeal.

AFFIRMED.

      . It also remanded the case for a determination of the value of the lease that the Bank supposedly reassigned to the Quartanas. However, on remand it was shown that, in fact, the lease by its own terms was unassignable and, therefore, no credit could be given for it.

      . “On a new trial, if plaintiffs are found to be entitled to a judgment, then the judgment should be for ⅜ of the purchase price of the note ($24,698 X ⅝ = $16,465.33), less a credit of $2,217.37 for the proceeds of the judicial sale and an appropriate credit for the value of the lease, with legal interest from April 10, 1975, the date of the judicial demand, until paid and for all costs. Each of the four co-debtors is only liable for his virile share. Since the note was discharged, the 9½% interest from the date of payment and 20% attorney’s fees provided therein are eliminated.” Quartana v. Jenks, 355 So.2d 607, 611 (La.App. 4th Cir. 1978).


author: DUFRESNE, Judge.

text:
    In the Matter of the ESTATE OF Dorothy Mae HAGAN, Deceased v. Ray H. FIKE, et al.
    No. 83-CA-330.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.

      John L. Diasselliss, III, LaPlace, for defendants-appellants.
    William O’Regan, III, LaPlace, for plaintiff-appellee.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

The defendants, Ray H. Fike and Wanda Lou Fike appeal from the trial court judgment denying their motions for continuance and a new trial. The issue on appeal involves whether the trial court abused its discretion by denying the motion for new trial filed by the defendants.

The foundation of this appeal commenced when the plaintiff filed a petition to make a foreign judgment executory against the defendants in February of 1981.

There existed a valid judgment from the state of Kansas and this judgment was made executory by default in Louisiana on April 8, 1981. Subsequently, the defendants filed a petition to nullify the judgment alleging they were not properly served. The suit for nullity was set for trial on October 12, 1982. The defendants failed to appear at the time for the trial and the trial court denied their counsel’s oral motion for a continuance and dismissed their action for nullity with prejudice.

As a result, defendants filed a motion for new trial alleging they mistakenly went to the wrong courthouse. After realizing their error, they arrived at the proper courthouse whereupon they discovered that the trial court had dismissed their petition. The trial court reviewed the motion for a new trial, but refused to grant a new trial. Defendants have perfected this appeal.

On appeal, defendants argue that because they mistakenly went to the wrong courthouse in another parish, they arrived too late to have their day in court and were denied justice. We disagree. The trial court’s refusal to grant a continuance and the subsequent denial of the defendants’ motion for a new trial was not an improper use of its sound discretion. Abuse of the trial court’s discretion arises only under those legal circumstances which tend to deprive or hamper the litigant’s right to a fair and just trial.

The jurisprudence accords the trial court great discretion in granting a new trial or a continuance. Southern Natural Gas Company v. Roland, 240 La. 471, 123 So.2d 891 (1960). The appellate courts will not interfere in decisions of the trial court denying motions for a new trial unless there has been a clear abuse of discretion. Allen v. Riley Mobile Home Sales Inc., 307 So.2d 773 (La.App. 3rd Cir.1975).

Although the defendants were not present in court at the designated time for trial, the record reflects that the trial judge considered their testimony as insufficient for judicial resolution. The only evidence to be introduced as to the manner of review of process was the testimony of the defendants. The trial judge commented on this fact: “Unless you (defense counsel) have the testimony of the police officer which negates service, you know, no matter what they say, everything they say is self-serving.” The trial judge continues by stating to the defense counsel: “... unless service of process can be shown affirmatively not to have been done ... your motion for nullity of judgment is over with.”

The record clearly shows on the citation that the sheriffs office had made personal service on both Ray Fike and Wanda Lou Fike. Consequently, we hold that the trial judge was correct when he stated: “Because of the fact that there is no evidence [except for the self-serving testimony of the defendants] to show improper service and the service does reflect that the sheriff’s office did serve him, then the petition for nullity of judgment is going to have to be knocked out.”

With regard to the Sheriff’s return of citation, the law in Louisiana is clear. This process is prima facie evidence of service. Hood Motor Company, Inc. v. Lawrence, 334 So.2d 460 (La.App. 1st Cir.1976). In Hood, our learned brethren set forth the law when the court announced:

“These returns, when properly attested to, are given great weight and the burden rests on the party attacking them to establish their incorrectness. This burden can only be met by a clear and convincing proof that the endorsements contained thereon are erroneous. Our settled law is that a return can not be impeached by the uncorroborated testimony of the party upon whom service is stated to have been made by the officer.” (citations omitted)

The record further reflects that the defendants petitioned the court for the nullity of judgment in August, 1981, and on the motion of their attorney the matter was set for trial on February 9, 1982, which date was continued at the request of both attorneys. On February 11, 1982, the case was re-set for trial on October 12, 1982 (over 8 months later).

On June 14, 1982, at the request of plaintiff’s attorney, a judgment debtor rule was also set for October 12, 1982. This motion was personally served on the defendant, Ray Fike, ordered him to appear in the 29th Judicial District Court for the Parish of St. John the Baptist on the 12th day of October, 1982, at 10:00 O’clock A.M. Not only did they discuss their appearance in court with their attorney on their petition, but Ray Fike was ordered to appear in court for a judgment debtor rule. Defendants had adequate notice to appear in court and the trial judge as previously noted considered their anticipated testimony and accordingly, dismissed their petition for nullity and denied defendants’ motion for a new trial.

In light of the above stated reasons, we find that the trial court did not abuse its discretion in denying the motions for continuance and a new trial, therefore the judgment of the district court is affirmed in all respects.

All costs of the appeal are to be paid by the appellants.

AFFIRMED.


text:
    Doris SCHIRRMANN v. Hans SCHIRRMANN.
    No. 83-CA-334.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 8, 1983.
    Rehearing Denied Sept. 16, 1983.
    Writs Denied Nov. 4,1983.

      Garland R. Rolling, Metairie, for defendant-appellant.
    Elsie Halford, Metairie, for plaintiff-ap-pellee.
    Before KLIEBERT, GAUDIN and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Hans Schirrmann appeals from a judgment granting his wife a separation based on grounds of cruel treatment and from the dismissal of his suit in reconvention filed on grounds of constructive abandonment.

The Schirrmanns were married in February of 1963 and established their matrimonial domicile in Jefferson Parish, Louisiana.

On June 8, 1981, Doris Schirrmann-plain-tiff instituted legal proceedings against her husband, Hans Schirrmann-defendant for a separation based on cruel treatment. The defendant answered and denied his wife’s allegations of cruel treatment and reconvened seeking a separation alleging constructive abandonment. The reconventional demand alleged that Mrs. Schirrmann had advised Mr. Schirrmann that she had changed the locks on their home and had placed his personal belongings outside in his car which in effect denied him access to their matrimonial domicile.

After trial on the merits, the trial court found no abandonment on part of the plaintiff-wife and thus dismissed the reconven-tional demand of the defendant-husband and granted the plaintiffs separation based on cruel treatment.

The issues presented by this appeal are:

1. Whether Mr. Schirrmann is guilty of any cruel treatment which would support the judgment of separation.

2. Whether the trial court erred in dismissing defendant-husband’s reconventional demand for separation based upon abandonment.

The trial court ruled in oral reasons made part of this record on appeal that “... the marriage ended because of the strict discipline of the husband which to a certain extent amounted to cruel treatment on the part of the wife and the children.” The record is void of any testimony (evidence) suggesting that the defendant ever abused or neglected his children, and as a matter of fact Mr. Schirrmann’s uncontradicted testimony indicates that his two daughters are “all that matters to him in life.”

This court adopts the view that absent evidence of mental or physical abuse, the philosophy and authority of child-rearing falls under the ambit of parental prerogatives. The concept of discipline in the family home cannot be judicially substituted. Although Mr. Schirrmann may have strict, traditional values which may not have been satisfactory to the trial court, we conclude that the trial court erred in substituting its notions of what constitutes proper child-rearing for those of the father.

The plaintiff argues that the lack of sexual intercourse was an instance of mental cruelty. She testified that in the year prior to locking her husband out of the house, there were only two occasions of intercourse. This court recognizes that cruelty, in any form which renders living together insupportable, is a proper legal ground for separation. The courts in this state are consistent in that repeated refusal to engage in sexual contact, in the absence of consent or sickness or grave fault may constitute cruel treatment within the meaning of Civil Code Art. 138(3). Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980).

While two engagements of sexual union during a year may be less than total fulfillment, the courts are reluctant to establish a quota, less than which would constitute grounds for separation. In Von Beehman, supra, the Louisiana Supreme Court announced that they declined to decide “... whether the frequency or infrequency of sexual activity between the parties to the marriage could constitute cruel treatment. Without knowledge of the many considerations between the parties upon which such a sensitive and delicate act may be dependent, we would regard any judgment we may have on this subject as arbitrary.”

Before the conduct complained of above can constitute cruel treatment within the preview of Civil Code Art. 138(3), there must be a persistent and unjustified refusal to engage in conjugal relations. We find that there is insufficient evidence to establish a basis for separation upon this ground. Furthermore, it is not disputed that the marriage was strained and suffered because of incompatability, fussing and bickering.

Mr. Schirrmann, in reconvention, brought suit against Mrs. Schirrmann for separation based upon abandonment. The defendant alleges that his wife had the locks to the family home changed, placed his personal belongings outside the home in his car, and telephoned him at work to advise him of these facts. As a result of this action, she in effect constructively abandoned him.

Before a separation grounded upon abandonment may be granted, it must be proven that one of the parties withdrew from the marital domicile without lawful cause to do so, and that the withdrawing party has constantly refused to return. Civil Code Art. 143; Von Bechman v. Von Beehman, supra.

An adjunct to abandonment is “constructive abandonment,” whereby a spouse prevents or bars the other spouse from entering the matrimonial domicile without lawful cause. Quinn v. Quinn, 412 So.2d 649 (La.App. 2nd 1982).

To support a finding by this court of constructive abandonment, there must be no “lawful cause” for the constructive abandonment. The record indicates tremendous amount of friction, dissatisfaction, and tension between the spouses, particularly concerning their daughters. However, we conclude that although this family conflict existed, the intensity was not sufficient to warrant Mrs. Schirrmann’s barring Mr. Schirrmann from his home.

The third element of abandonment is the refusal to return. In this regard, the record indicates that Mrs. Schirrmann filed suit on the same day that she locked her husband out of the family house. Although Mrs. Schirrmann testified at trial that she would like to reconcile, we hold that this expression of reconciliation at trial is inconsistent with her actions.

“... a self-serving statement at the time of trial by the abandoning husband that he would come back to the domicile if the wife would let him was not sufficient evidence of intent to return where no overt efforts were made by him prior to trial indicating a desire to reconcile.” Robertson v. Robertson, 332 So.2d 896 (La.App. 2nd Cir.1976).

Correspondingly, the institution of suit subsequent to an abandonment which is brought by the abandoning spouse suffered as a constant refusal to return.

“Appellant contends even if he left the matrimonial domicile without lawful cause, appellee has failed to prove he has constantly refused to return. We disagree. While no direct testimony was taken on this issue, we feel a reasonable inference can be made from the record. Mr. Dugas moved out of the house on August 2, 1981, and filed suit for separation on August 7. The fact he sought a legal separation, in itself, indicates that he was not planning to return to the matrimonial domicile. In other words, this was not a case where the abandoning party simply got fed up and impulsively moved out of the house with the idea he would return if the parties later reached an agreement over their differences. Obviously, Mr. Dugas had carefully considered the matter and intended to terminate the marriage.” Dugas v. Dugas, 424 So.2d 1189 (La.App. 1st Cir.1982).

We hold, as in this case of abandonment, the husband should not be expected to seek reconciliation in the face of adverse conditions which manifest no desire for reconciliation on the part of the wife.

For the reasons 'assigned, the judgment of the trial court finding the plaintiff-Doris Schirrmann, free from fault and granting her a separation and dismissing the defendant’s reconventional demand is reversed. This court instead, finds that separation should be based on mutual fault. In order for a mutual fault separation under LSA-C.C. Art. 141 to be properly granted, each party must be guilty of conduct sufficient to constitute an independent ground for separation under LSA-C.C. Art. 138. Blackwell v. Blackwell, 413 So.2d 1331 (La.App. 1st Cir.1982).

We find that the record adequately supports that neither the plaintiff nor the defendant are free of fault. The entire atmosphere of this marriage has deteriorated and both parties are at fault; fault sufficient enough to award the other spouse a separation under LSA-C.C. Art. 138.

Accordingly, we reverse that part of the trial court’s judgment which granted a judgment of separation from bed and board to plaintiff and find that the parties are entitled to a separation from bed and board based on mutual fault.

All costs of this appeal are to be paid by both plaintiff and defendant.

REVERSED AND RENDERED.


author: PICKETT, Judge Ad Hoc.

text:
    Louise A. Mouton THOMPSON, Plaintiff-Appellee, v. Charles THOMPSON, Defendant-Appellant.
    No. 83-183.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 10, 1983.
    Rehearing Denied Sept. 26, 1983.
    Sylvia Roberts, Baton Rouge, for plaintiff-appellee.
    Ronald E. Dauterive and Henry C. Per-ret, Jr., Lafayette, for defendant-appellant.
    Before GUIDRY, FORET and PICKETT, JJ.
   PICKETT, Judge Ad Hoc.

In this case, Mrs. Louise Azelie Mouton Thompson was awarded a divorce from her husband, Charles David Thompson. She was also awarded the custody of their five minor children and child support in the amount of $4,000.00 per month.

Mr. Thompson appeals from the judgment only insofar as it relates to the award of child support.

The sole issue before this court is whether or not the trial judge abused his discretion in fixing the child support.

In his appeal, Mr. Thompson seeks to have the child support reduced to $2,500.00 per month. Mrs. Thompson answered the appeal and asked that it be increased to $6,000.00 per month.

At trial, the financial situations of both parents were thoroughly developed.

Since this case was tried in 1982, great emphasis was placed on the 1981 income of both parties. The 1981 adjusted gross income of Mrs. Thompson, who is a housewife, was $128,061.00. This included interest earned from certificates of deposit and from revenues from the sale of her separate property. After 1981 she anticipated receiving an additional, last payment of $10,-000.00 from the sale of her property, plus approximately $20,000.00 per year interest earned on certificates of deposit. She has other, non-revenue producing property which is burdened with a usufruct in favor of her mother.

Mrs. Thompson is not employed and is responsible for rearing the minor children, the youngest of which is only four years of age.

Mr. Thompson is a highly successful stock broker and financial consultant, with investments in oil properties. His gross income for 1981 exceeded $200,000.00.

Mrs. Thompson sought $4,500.00 per month as support for her minor children, and filed an affidavit reflecting $11,364.69 needed monthly for the support of the children. This affidavit included several items clearly not attributable to the support of the children, which may explain why Mrs. Thompson reduced her demands. It is undisputed that the Thompson family is an affluent one, and that the children are maintained in a high standard of living.

In the case of Ducote v. Dacote, 339 So.2d 835, the Louisiana Supreme Court, in a 1976 decision, held:

"Louisiana Civil Code Article 227 provides that parents have'the obligation to support, maintain, and educate their children. This support shall be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Sarpy v. Sarpy, La. App., 323 So.2d 851 (1975), cert. denied, La., 328 So.2d 166 (1976); Phillips v. Phillips, La.App., 319 So.2d 566 (1975).”

Also see Prudhomme v. Prudhomme, 381 So.2d 906 (La.App. 3rd Cir.1980), writ denied, 383 So.2d 782 (La.1980); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir. 1980); Guice v. Guice, 411 So.2d 663 (La. App. 3rd Cir.1982).

The jurisprudence is well settled that the trial court is vested with wide discretion in fixing child support, and the exercise of this discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Goux v. Goux, 408 So.2d 30 (La.App. 3rd Cir.1981); Nicolle v. Nicolle, 308 So.2d 377 (La.App. 4th Cir.1975); Fakouri v. Perkins, 322 So.2d 401 (La.App. 3rd Cir.1975); Guice v. Guice, cited Supra; Casselmann v. Zaunbrecher, 430 So.2d 293 (La.App. 3rd Cir.1983); Marra v. Marra, 425 So.2d 969 (La.App. 5th Cir. 1983).

It has previously been noted that Mrs. Thompson is not employed and has the responsibility for rearing the children. The customary duties performed and services rendered by a mother on a daily basis contributes substantially to the mutual obligation of support. Ducote v. Ducote, cited supra.

Although both parents owe a mutual obligation of support to their children, the trial court was obviously convinced that Mr. Thompson can afford to contribute more money to the support of the children and that Mrs. Thompson’s contribution necessarily included the responsibilities, duties and services of a mother toward her young children.

As aforementioned, the trial court rendered judgment awarding plaintiff an in globo award of child support in the amount of $4,000.00 monthly. Although we consider this award to be high, considering the record we cannot state that such an award for the support of five minor children, accustomed to the standard of living of the children involved in this proceeding, constitutes a clear abuse of the great discretion allowed the trier of fact in such matters. However, the record in this case clearly reflects that, although the parties do in fact have five children, the eldest, Charles David Thompson, Jr., had reached the age of majority prior to the institution of this suit and was therefore not entitled to an award of support under the provisions of LSA-C.C. Art. 227. LSA-C.C.. Art. 37; Dubroc v. Dubroc, 284 So.2d 869 (La.App. 4th Cir. 1973); Demarie v. Demarie, 295 So.2d 229 (La.App. 3rd Cir.1974). It is evident from the record and from his written reasons for judgment that the learned trial judge framed the award based on the erroneous premise that there were five minor children who were entitled to an award of support under C.C. Art. 227. Therefore, although the award in this case is subject to review under the standard that it should not be disturbed absent a showing of clear abuse, it is subject to correction where the in globo award is shown by the record to have been calculated on the basis of the number of children entitled to support and such basis is erroneous. Accordingly, we conclude that a reduction in the amount of $800.00 is warranted and the trial court judgment will be amended so as to reflect this reduction.

For the reasons assigned, the judgment of the trial court is amended so as to reduce the child support award from $4,000.00 to $3,200.00. In all other respects, the judgment appealed from is affirmed. The costs of this appeal are assessed one-half (V2) to plaintiff-appellee and one-half (½) to defendant-appellant.

AFFIRMED AS AMENDED.

      . Although the judgment appealed from purports to award custody of the parties’ five minor children to the plaintiff, Louise A. Mouton Thompson, the record reflects that there were only four minor children, the oldest child, Charles David Thompson, Jr., having reached the age of majority before the institution of these proceedings.


author: GULOTTA, Judge.

text:
    Judge Hillary E. TURNER, Justice of the Peace of Ward Eight v. Joseph ALEXIS, Elector in Ward Nine.
    No. CA-1185.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 16, 1983.

      Hillary E. Turner, Port Sulphur, in pro. per., appellant.
    Anthony D. Ragusa, Jr., Port Sulphur, for appellee.
    Before GULOTTA, KLEES, JJ., and REMY CHIASSON, J. Ad Hoc.
   GULOTTA, Judge.

In this suit objecting to the candidacy of Joseph Alexis for the office of Constable for the Justice of the Peace, the central issue is whether the candidate has met the residency requirement.

LSA-R.S. 13:2581.2, providing for the office of constable in the several parishes of the State, sets forth the following requirements for that office:

“A...
B. He shall be of good moral character, able to read and write the English language, and an elector and resident of the ward from which elected. He shall possess such other qualifications as are provided by law.”

The thrust of plaintiffs claim against defendant’s candidacy for constable in Ward 8 of Plaquemines Parish is that Joseph Alexis is a resident of Ward 9, Precinct 2, and, therefore, ineligible to run for the office in Ward 8.

After a trial on the merits, the trial judge dismissed plaintiff’s suit. We affirm.

Well settled is the rule that the burden of proof is upon the contestant who seeks to disqualify a candidate for public office based on failure to meet a residency or domicile requirement. See Charbonnet v. Hayes, 318 So.2d 917 (La.App. 4th Cir. 1975), writ denied 320 So.2d 201 (1975); Tomlinson v. Frazier, 407 So.2d 1385, 1390 (La.App. 4th Cir.1982) [concurring opinion], writ denied 410 So.2d 764 (La.1982).

Also well settled is the rule that, although a person may have only one domicile, he may have several residences. See LSA-C.C. Art. 38; LSA-R.S. 18:101(B); Hobbs v. Fireman’s Fund Am. Ins. Companies, 339 So.2d 28 (La.App. 3rd Cir.1976), writs denied 341 So.2d 896 (1977); Fielding v. Casualty Reciprocal Exchange, 331 So.2d 186 (La.App. 3rd Cir.1976), writ denied 334 So.2d 217 (1976).

Applying the facts in our case to these guidelines, we are led to conclude that plaintiff has failed to carry the burden of showing that defendant failed to meet the residency requirement.

Joseph Alexis testified that he has resided within Plaquemines Parish periodically in West Point-a-la-Hache, Happy Jack and Pilot Town. He stated that he had several residences throughout the parish. He stated also that when he qualified to run for constable he was a resident of Point-a-la-Hache, within the geographic bounderies of Ward 8. His testimony was corroborated by his brother, Douglas Alexis. •

It was stipulated that Alexis qualified on July 29,1983, the last day for qualifying for the office of Constable, and that he had changed his voter registration to a precinct in Ward 8 on July 28,1983. LSA-R.S. 18:110 of the Louisiana Election Code, dealing with Registration of Voters, provides that a registrant who changes his residence within the parish may change his registration at any time prior to the closing of registration without the necessity of re-registering. Alexis’ change of voter registration on the day preceding his qualifying for. office makes him an elector qualified to vote in Ward 8.

In Montegut v. St. John The Baptist Par. Em. Exec. Com., 265 So.2d 258 (La.App. 4th Cir.1972), writ refused 262 La. 971, 265 So.2d 616 (1972), a case not too dissimilar factually from the instant one, we held that a candidate met the requirement of being a qualified elector' where he had filed a change of residence with the Registrar of Voters at 10 a.m. on June 16, 1972, and qualified as a candidate for office at 11:15 a.m. on the same day.

The holdings in the cases cited by plaintiff are not inconsistent with the conclusions reached in the instant case.

The evidence considered in light of the applicable jurisprudence, we conclude that plaintiff has failed to carry the burden of proof of showing that defendant did not meet the residency requirement to be a candidate for Constable for the Court of the Justice of the Peace in Ward 8, Plaque-mines Parish.

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . Soileau v. Board of Sup’rs, St. Martin Parish, 361 So.2d 319 (La.App. 3rd Cir.1978); Staton v. Hutchinson, 370 So.2d 106 (La.App. 1st Cir. 1978).


author: BARRY, Judge.

text:
    Roslyn Gambino PLEMER v. Michael PLEMER.
    No. CA-1001.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 1983.
    Rehearing Denied Sept. 22, 1983.

      Floyd J. Reed, J.D., Reed & Reed, New Orleans, for plaintiff-appellant.
    Philip R. Riegel, Jr., Parlongue & Riegel, New Orleans, for defendant-appellee.
    Before BARRY, LOBRANO and WARD, JJ.
   BARRY, Judge.

The plaintiff-mother appeals a change from sole custody of her 10-year old daughter to joint custody and asserts the court’s plan is unworkable and the reduction in child support is unreasonable.

BACKGROUND

Roslyn Gambino (now Mrs. Marshall Hughes) and Michael Plemer were married on February 19, 1966 and had one child, Michele, born on April 12, 1973. The parents separated in 1976 and the mother obtained a legal separation in 1977 and a divorce one year later. She was awarded sole custody of Michele and the father had Michele generally at least one day a weekend, plus one full weekend a month, and several extended vacations or holidays a year.

In February, 1981 the former Mrs. Plemer was married to Marshall Hughes, with whom she and Michele now live. In September of 1981 Mr. Plemer married Kathleen Pierson, an attorney, who has two daughters, Shannon, age 16 and Elise, age 10, from her first marriage. Mr. Plemer and his wife reside in her house with the children.

The crux of the problem between Mr. Plemer and Mrs. Hughes surfaced after the father’s marriage. Michele was accustomed to her father’s exclusive company during visitation, but was unhappy at having to “share” her father with his new wife and step-daughters. According to Mrs. Hughes, Michele complained that when she visited her father at his new home, she spent little time with him and was relegated to her step-mother’s children and their friends. There was some rivalry between Michele and Shannon, the 16-year old step-sister who, according to Michele, sometimes bullied her, and was allowed to smoke, swear, etc. Mrs. Hughes testified that, in early 1983, Michele refused to go to her father’s house unless she would be guaranteed substantial, person-to-person interaction with her father undiluted by his new family.

Mr. Plemer testified that he wants Michele to become acclimated to his new marital status and develop a relationship with his wife and her children. During visitation he intentionally arranged weekends for everyone to be together and share their activities.

Michele experienced difficulty in adjusting to “sharing” her father. Mrs. Hughes contacted Mr. Plemer, told him of Michele’s complaints, and, since he would not agree to spend each visit alone with Michele, she allowed Michele to forego the weekly visitations. Mr. Plemer then filed the subject rule for joint custody. Mrs. Hughes opposed any custody change and asked for an increase in child support, and Mr. Plemer responded with a predictable request to decrease the support.

Under our new joint custody legislation each party is to submit a plan to the trial judge. In his proposed plan Mr. Plemer agreed that Mrs. Hughes should retain physical custody of Michele during the school year, but he sought physical custody during three weekends a month, half of the summer vacation, and on alternate holidays. Mrs. Hughes refused to file a plan and opposed any change on the grounds that shared custody would be confusing to Michele and disruptive to everyone’s lives. At trial, she suggested that Mr. Plemer’s visits be curtailed, i.e., Michele be restricted to daytime visits twice a month and occasional extra dinners or short outings.

After a full hearing, which included testimony from Michele in chambers without the parents, the trial judge rendered a comprehensive and totally structured plan. Judge Duran continued Michele’s basic lifestyle by granting physical custody to Mrs. Hughes for approximately nine months during the school year with Mr. Plemer to have all weekends save one per month. During vacation Mr. Plemer assumes physical custody with Mrs. Hughes sharing all weekends but one per month. The parent with physical custody is liable for the child’s conduct. Holidays and special occasions are spelled out and alternated. Detailed reasons for judgment emphatically specify the need for Michele to avoid her mother’s dominance and for the child to “mingle ... with other people .... ”

PHYSICAL CUSTODY

By enacting Act 307 of 1982 the legislature initiated a radical change in our laws on child custody. LSA-C.C. Art. 146, which is made applicable to changes in permanent custody under Art. 157, now creates a re-buttable presumption in favor of joint custody. The opposing parent has the burden to show that joint custody is not feasible. However, the legislation provides very little guidance as to the meaning of “joint custody” and how it should be implemented.

We interpret “joint custody” to mean a physical sharing of the child in addition to both parents participating in decisions affecting the child’s life — e.g., education, medical problems, recreation, etc. It’s obvious no plan, with or without ironclad guidelines, could possibly resolve the infinite number of conflicts which can and will arise between divorced parents in their quest to share their child’s life. It’s a fact of life that when parents battle over their children, judges are cast as ad hoe parents. But the legal bottom line remains the same — our only concern is the best interests of the child.

We note the lower court’s custody award slightly exceeds the amount of time requested in Mr. Plemer’s plan; however, the Reasons are crystal clear that Michele would be better served by spending additional time with her father. The weekly schedule (over one year) places Michele with her mother approximately two-thirds of the time. We don’t interpret joint custody to mean a fifty-fifty sharing of time. Each case will depend on the child’s age, the parents’ availability and desires, and other factors. Considering the child’s age and the sole custody enjoyed by Mrs. Hughes in the past, we find the court’s plan reasonable, feasible and in the best interests of Michele.

In order to clarify any possible ambiguity as to holidays and special days, we interpret the plan to mean that the parents will have custody on alternating holidays each year. However, allocation of the entire Christmas vacation to one parent is unrealistic because it totally deprives one parent of visitation during the two-week Christmas time. Even though we feel the parents would have worked out their own arrangement to share Christmas, out of caution we amend the judgment to provide that the non-custodial parent shall have visitation on December 25 from 2:00 p.m. to 10:00 p.m., subject to any mutually agreeable modifications.

EDUCATION

Both parents are to be informed and involved in Michele’s educational development throughout her minority. During elementary school years the mother has “primary and ultimate” authority to make decisions, but during high school the judgment shifts this authority to the father. Vesting responsibility in Mrs. Hughes during grade school years is plausible because she has raised the child since birth, arranged her schooling, and shared these experiences with Michele.

However, we feel strongly that the trial judge erred by suddenly interrupting this scheme at the high school level. It seems illogical to shift educational responsibilities after one parent (Mrs. Hughes) would have guided this aspect of Michele’s life for so long. There is no advantage to this change; in fact, continuity in such a critical area as education is in Michele’s best interest. Therefore, this Court will maintain the “ultimate authority” in favor of Mrs. Hughes throughout Michele’s high school years with Mr. Plemer participating as set forth in the court’s plan.

Michele’s educational expenses, including tuition, school transportation, uniforms and books, have been shared equally by Mr. Plemer under the prior decree. Considering the means and status of both parents it would be equitable for both parents to continue sharing these expenses.

MEDICAL TREATMENT AND EXPENSES

We certainly agree that all medical information should be available to both parents and all major medical decisions shared. However, it is impractical and unworkable, as provided by the lower court judgment, for “each parent ... to provide whatever medical treatment is necessary while the child is in his (her) physical custody.” It is certainly more reasonable to have both parents pay equally all major medical expenses (not covered by insurance) regardless of who has custody if treatment becomes necessary. Also, because the majority of Michele’s custody has been and will be with her mother, it should be her ultimate decision if the parents disagree as to major medical treatment.

SUPPORT

The primary area of child support has been the payment by Mr. Plemer of $400 per month for twelve months, which was set when Mrs. Hughes’ income was much lower. This was reduced by the trial court to $300 a month for the nine month school term. The $2,100 reduction, though sizable, could also be considered reasonable because of the increased custody time granted to Mr. Plemer. We note the combined community income of each parent is approximately $60,000, which, in Mr. Plemer’s case, must also provide for his two step-daughters. There is no manifest error in the reduction of the support award.

Judge Duran’s advice to the parents reflects our sentiments:

“These parents are to share equally their child, and wherever possible share equally in the decision-making process regarding this child. Both parents are to try to see things from the child’s point of view, not their own, and at all times both parents are to act primarily in the child’s best interest. The general attitude of each parent and their communication with their child shall be: Your parents have their differences, both have gone their separate ways, and each has remarried, each has established a new and different life for themselves. However, both of your parents love their child, both are interested in her welfare, and well being; both parents love and want to share their child; both parents want to be with the child as much as is possible.”

DECREE

IT IS ORDERED:

The district court judgment is hereby amended:

The parents are to share Christmas as outlined;
Mrs. Hughes will have ultimate authority for the minor’s education and medical treatment;
Mr. Plemer is to pay one-half of all major medical expenses and school expenses as outlined.

All other provisions of the judgment are affirmed. Each party is to pay his (her) own costs.

AMENDED IN PART; AFFIRMED IN PART.

      . Act 695 of 1983 sets forth specific criteria which will assist future determinations.

      . The prior decree provided for review of the support award every two years. The parties did not seek to have this provision continued, nor is it necessary since either party can seek review if the circumstances warrant.


author: DOUCET, Judge. STOKER, Judge,

text:
    Dorothy S. SLAUGHTER, Plaintiff-Defendant-in-Reconvention-Appellee, v. James P. SLAUGHTER, Defendant-Plaintiff-in-Reconvention-Appellant.
    No. 83-154.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1983.
    Rehearing Denied Sept. 29, 1983.
    Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for defendant-plaintiff-in-reconvention-appellant.
    Trimble and Associates, Elizabeth E. Foote, Alexandria, for plaintiff-defendant-in-reconvention-appellee.
    Before GUIDRY, STOKER, DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

James P. Slaughter appealed a judgment awarding permanent alimony in the amount of $300 per month to his former wife, Dorothy S. Slaughter, on the basis that she is guilty of fault which precludes her from receiving permanent alimony. Mrs. Slaughter answered the appeal asking for an increase in the award to $500 per month. We reverse.

Mrs. Slaughter filed suit on October 28, 1980 seeking a separation of bed and board on the grounds of cruel treatment and constructive- abandonment. Mr. Slaughter reconvened seeking a separation alleging his wife’s relationship with another man constituted cruel treatment. He subsequently amended his reconventional demand to ask for a divorce on the basis of having lived separate and apart in excess of one year. Mrs. Slaughter amended her petition to ask for permanent alimony.

The judgment of absolute divorce based on the parties having lived separate and apart for one year was not contested at trial and is not contested in this appeal. The issues presented on appeal are whether Mrs. Slaughter was free from fault in the breakup of her marriage so that she may be entitled to permanent alimony and, if so, whether the amount awarded by the trial court is sufficient.

The Slaughters were married in 1947. All three of their children had reached the age of majority by the time this litigation began. The physical separation occurred on October 26, 1980, when Mr. Slaughter accused his wife of infidelity and ordered her from the family home. Mr. Slaughter’s accusations were based on Mrs. Slaughter’s relationship with a Mr. Leckie. It is the nature of this relationship which is the real controversy in this matter. Mrs. Slaughter claims that Mr. Leckie is simply a friend. Mr. Slaughter, while admitting that the evidence is insufficient to prove adultery, claims that the nature of the relationship, including clandestine meetings between Mrs. Slaughter and Mr. Leckie, is sufficient to constitute mental cruelty. He claims that the relationship caused the breakup of the marriage, thus, Mrs. Slaughter is not free from fault.

The record indicates the controversial meetings between Mr. Leckie and Mrs. Slaughter began in the summer and fall of 1978, more than two years before the Slaughters physically separated although Mr. Leckie had been a friend of the family for years. These meetings were testified to by different witnesses and most of them were admitted to by Mrs. Slaughter.

Mr. Leckie’s daughter, Debbie Bowen, and his former employee, Addie Chambers, testified that during 1978 Mrs. Slaughter came to the Indian Inn, a service station and restaurant run by Mr. Leckie, several times a week, sometimes as often as every day. She would buy gas there, Mr. Leckie would sometimes service her car, and she would sometimes have a soft drink with him. According to Mrs. Chambers, once Mr. Leckie left the Indian Inn, she had not seen Mrs. Slaughter there.

There was also testimony concerning a visit made by Mr. Leckie and Mrs. Slaughter to Iowa to see the Slaughters’ oldest son, Michael, his wife and son. The trip was taken in September of 1978 at a time when Mrs. Slaughter had been suffering from high blood pressure and was advised not to travel alone. Both Mr. and Mrs. Slaughter testified that Mr. Slaughter refused to go to Iowa with her.

Mr. Leckie flew out of the Monroe airport and Mrs. Slaughter flew out of Alexandria “for the purpose of keeping down gossip” according to Mrs. Slaughter. In Iowa, Mrs. Slaughter allegedly stayed with her son and his family and Mr. Leckie stayed at a hotel. Michael testified that he had invited Mr. Leckie to come to Iowa for a visit. A picture of Mr. Leckie and Mrs. Slaughter taken on the Iowa trip standing side by side, each with an arm around the other, was introduced into evidence by counsel for Mr. Slaughter. Mrs. Slaughter admitted that the picture had been taken on Sunday afternoon before Mr. Leckie left Iowa. She also admitted she knew that her husband would not approve of the relationship she had with Mr. Leckie.

Other evidence of meetings between Mr. Leckie and Mrs. Slaughter includes testimony from her second son, Russell, and his wife, Pat. One instance was in a catfish restaurant in which Mrs. Slaughter, Russell and Pat were eating dinner. Mr. Leckie came in and talked to them for a time and then left. It appeared to Russell that the meeting was prearranged and it made him feel uncomfortable.

Another incident occurred at a pizza parlor in Alexandria. The circumstances of this incident are somewhat disputed. Mrs. Slaughter and Pat were eating dinner when Mr. Leckie came in. Pat testified that Mrs. Slaughter asked her to go somewhere for a few hours and pick her up later at Mr. Leckie’s house. Pat stated further that when she picked up Mrs. Slaughter, the couple kissed goodbye and said they loved each other.

Mrs. Slaughter denies that she left with Mr. Leckie and denies ever having acted in a romantic manner towards Mr. Leckie. She claims that she left the pizza parlor with Pat just as she had come and that this encounter was by chance just as the one at the catfish restaurant was.

Other testimony involved a catfish fry at Mr. Leckie’s house. Russell and Pat were invited, as was Mrs. Slaughter. On this occasion Mr. Leckie gave Mrs. Slaughter a hand gun and the two were alone as they walked into the woods for approximately half an hour to practice shooting.

Mrs. Slaughter’s younger son, Darrel, testified that while his mother was visiting him in Norfolk, Virginia, Mr. Leckie called to speak with her.

On the evening of October 26, 1980, Mr. Slaughter finally confronted his wife about her relationship with Mr. Leckie and ordered her to vacate the home.

Fault which will preclude an award of permanent alimony must be such conduct which would entitle one spouse to a separation or divorce. Adams v. Adams, 389 So.2d 381 (La.1980). When a spouse claims entitlement to permanent alimony, he or she bears the burden of proving freedom from fault in the breakup of the marriage. La.C.C. Art. 160; Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3rd Cir. 1981); Moore v. Moore, 393 So.2d 822 (La. App. 2d Cir. 1981); Lovell v. Lovell, 386 So.2d 1063 (La.App. 3rd Cir.1980); Bell v. Bell, 368 So.2d 777 (La.App. 2d Cir.1979); Perrilloux v. Perrilloux, 424 So.2d 483 (La. App. 5th Cir.1982). The meaning of fault within the context of La.C.C. Art. 160 is not synonymous with being totally blameless in the marital discord. To constitute fault, a spouse’s misconduct must be serious and proximate cause of the separation. Pearce v. Pearce, 348 So.2d 75 (La.1977). Adultery can clearly constitute fault, however, the burden of proof in this regard can be extremely difficult. Nevertheless, intimate relationships with another, which are not proven adulterous, can constitute cruel treatment barring alimony.

In Boudreaux v. Boudreaux, supra, this court addressed the wife’s burden of proof, vis-arvis entitlement to alimony, where the husband’s allegation of adultery was not substantiated by evidence, such as would exclude any other reasonable hypothesis regarding her relationship with another man. We stated therein:

“LSA-C.C. Article 160 provides that a spouse is entitled to alimony only when he or she has not been at fault. In Pearce v. Pearce, 348 So.2d 75 (La.1977), the Louisiana Supreme Court stated:

“... the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davieson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir.1970).
“To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one. Morgan v. Morgan, 260 So.2d 336 (La. App. 4th Cir.1972). We have recognized that a trial court’s findings of fact on the issue of a wife’s ‘fault’ will not be disturbed on appeal unless found to be manifestly erroneous. Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971, 34 So.2d 43 (1948).”

Fault for purposes of permanent alimony preclusion is synonymous with the fault grounds for separation and divorce under LSA-C.C. Articles 138 and

139. Adams v. Adams, 389 So.2d 381 (La.1980); Smith v. Smith, 216 So.2d 391 (La.App. 3rd Cir.1968). The wife bears the burden of proving her freedom from fault in order to be entitled to alimony following divorce. Brannon v. Brannon, 362 So.2d 1164 (La.App. 2d Cir.1978); Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959).
We recognize the heavy burden of proof placed on one alleging adultery. The facts and circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition, i.e., the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery. Helms v. Helms, 349 So.2d 441 (La.App. 3rd Cir.1977); Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954). We find it unnecessary, however, to reach the issue of the sufficiency of Mr. Bou-dreaux’s proof of adultery. Even if Mrs. Boudreaux was not guilty of adultery, the evidence clearly shows she was guilty of alimony-barring fault.”

See also: Carriere v. Carríere, 147 So.2d 668 (La.App. 3rd Cir.1962), wherein we held that the conduct of the husband in persistently absenting himself from the home without explanation and under circumstances giving rise to suspicion that he was involved with another woman, was sufficient grounds for separation on the grounds of mental cruelty; and Sklar v. Sklar, 387 So.2d 1308 (La.App. 1st Cir.1980).

The evidence presented at trial shows that Mrs. Slaughter had a very close relationship with a man although she knew her husband would be upset if he knew of their activities together. The meetings between Mrs. Slaughter and Mr. Leckie were frequent and sometimes clandestine. She persisted in conduct which eventually led Mr. Slaughter to believe his wife and Mr. Leckie were engaged in a illicit relationship. Under these circumstances Mrs. Slaughter is precluded from recovering permanent alimony.

For the reasons set forth hereinabove, the judgment of the trial court awarding permanent alimony is reversed. Costs of these proceedings are assessed one-half to each party.

REVERSED.

STOKER, J., dissents and assigns written reasons.

GUIDRY, J., dissents for reasons assigned by STOKER, J.

STOKER, Judge,

dissenting.

With respect I dissent from the holding of the majority opinion in this case. I agree with the majority’s statement of facts. However, after carefully considering the testimony in this case, I cannot say that the trial judge was clearly wrong in finding Mrs. Slaughter free from fault. In his reasons for judgment the trial judge stated:

“The Court is left with an abiding conclusion that the marriage relationship between Mr. and Mrs. Slaughter had deteriorated to the point that Mr. Slaughter actually welcomed an opportunity to terminate the relationship.”

I believe this evaluation is correct.

Fault which will preclude an award of permanent alimony must be such conduct which would entitle one spouse to a separation or divorce. Adams v. Adams, 389 So.2d 381 (La.1980). The determination of fault is a factual one which will not be disturbed on appeal absent clear error. Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3rd Cir. 1981).

Although I am well aware of cases in which the wife’s relationship with another man was sufficient to constitute fault, even though adultery could not be proved, I do not believe that such a result is dictated here. Most of the cases in which fault was found dealt with a daily continuing relationship between the wife and another man under circumstances which were extremely suspect, but falling just short of the difficult burden of proof for adultery. See Boudreaux v. Boudreaux, supra; Sklar v. Sklar, 387 So.2d 1308 (La.App. 1st Cir.1980); Bloodworth v. Bloodworth, 306 So.2d 812 (La.App. 3rd Cir.1975).

The evidence at trial shows only that Mrs. Slaughter had a close friendship with a man who was also a close friend of her father’s. The only direct evidence of meetings between them occurred more than two years before the Slaughters’ physical separation. The trial court was correct in finding Mrs. Slaughter free from fault for the purpose of receiving alimony.

I would affirm the trial court which would include a rejection of Mrs. Slaughter’s demands on appeal asserted in her answer to the appeal seeking an increase in permanent alimony. Accordingly, I respectfully dissent.