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Docket Number
Attorney(S)
  • Martin E. Kranz, of New Orleans, for defendant and appellant. Alcide J. Weysham, of New Orleans, for plaintiff and appellee.
Judges
  • FOURNET, Justice.
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Cites
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Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Martin E. Kranz, of New Orleans, for defendant and appellant. Alcide J. Weysham, of New Orleans, for plaintiff and appellee.
Judges
  • FOURNET, Justice.
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Smart Summary

FLETCHER v. FLETCHER, No. 37583 (La. Jan. 12, 1948)

Factual and Procedural Background

Ferdinand J. Fletcher instituted suit against his wife, Emma P. Fletcher, seeking a divorce on the ground that they had been living separate and apart for more than two years. In her answer the defendant admitted the separation but alleged it had been precipitated by the plaintiff's neglect, abuse, and cruel treatment, and she asked the court to award alimony and attorney fees (the latter in the amount of $150). The Civil District Court for the Parish of Orleans granted the divorce but denied the wife's claim to alimony. The wife appealed. On appeal the Supreme Court of Louisiana amended the lower court's judgment by nonsuiting the defendant's claim for attorney fees and, as amended, affirmed the judgment of the lower court.

Legal Issues Presented

  1. Whether the wife, by a preponderance of the evidence, established her right to alimony under Article 160 of the Revised Civil Code (as amended), given that the husband obtained a divorce on the ground of living separate and apart and Article 160 conditions alimony on the wife "not [being] at fault."
  2. Whether the trial court should have adjudicated and awarded the wife's claim for attorney fees.

Arguments of the Parties

Appellant's (Defendant's) Arguments

  • The defendant admitted the parties had lived separate and apart for more than two years but averred that the separation was precipitated by the plaintiff's neglect, abuse, and cruel treatment.
  • The defendant requested that the court allow alimony (amount to be fixed by the court) and award attorney fees of $150.

Appellee's (Plaintiff's) Position

  • The plaintiff sought a divorce based on the parties' having lived separate and apart for more than two years; under Act No. 269 of 1916, as amended by Act No. 430 of 1938, the plaintiff was entitled to a divorce on that ground.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
White v. Broussard, 206 La. 25, 18 So.2d 641 Cited for the proposition that living separate and apart for the statutory period entitles a spouse to a divorce under Act No. 269 of 1916, as amended by Act No. 430 of 1938. The court relied on this authority to conclude the plaintiff was entitled to a divorce because the parties had lived separate and apart for more than two years.
Abbott v. Abbott, 199 La. 65, 5 So.2d 504 Cited regarding the standard of appellate review: findings of fact by the trial judge will not be disturbed unless manifestly erroneous. The court invoked this case to justify deferring to the trial judge's resolution that the wife did not establish by a preponderance of the evidence that she was not at fault and therefore not entitled to alimony.
Jones v. Jones, 200 La. 911, 9 So.2d 227 Cited in connection with the standard for appellate review of factual findings. Used with other authorities to support the proposition that the appellate court should not overturn the trial court's factual conclusions absent manifest error.
Gerstner v. Stringer, 205 La. 791, 18 So.2d 195 Cited in connection with the standard for appellate review of factual findings. Applied as part of the body of authority reinforcing deference to the trial court's findings on fault for purposes of alimony.
Matheny v. Matheny, 205 La. 869, 18 So.2d 324 Cited in connection with the standard for appellate review of factual findings. Relied upon along with the other cases to support the court's refusal to disturb the trial judge's determination that the wife was at fault (i.e., she did not meet the preponderance standard to receive alimony).

Court's Reasoning and Analysis

The court first observed that the parties had lived separate and apart for more than two years, and under Act No. 269 of 1916 as amended by Act No. 430 of 1938 (cited with White v. Broussard), the plaintiff was entitled to a divorce on that ground. That resolved the divorce issue.

The remaining question was whether the wife had established, by a preponderance of the evidence, that she was not at fault and therefore entitled to alimony under Article 160 of the Revised Civil Code (as amended), which permits alimony when "the wife has not been at fault." The trial judge resolved that question against the wife. The court stated that such factual findings by the trial judge would not be disturbed on appeal unless they were manifestly erroneous, citing several cases (Abbott, Jones, Gerstner, Matheny) to support that standard of review.

Upon examination of the record — specifically noting the "very meager note of evidence" — the court concluded that the trial judge's finding that the wife had not met her burden was correct and not manifestly erroneous.

Regarding the claim for attorney fees, the court noted the trial judge did not adjudicate that claim and the record did not show any reason for the omission or indicate the judge had considered the matter. The appellant failed to cite authorities supporting her right to attorney fees in this type of case. Because of the state of the record and the absence of supporting authorities, the court declined to award attorney fees on appeal, reserved any right the defendant may have to such fees, and nonsuited the claim for attorney fees.

Holding and Implications

AMENDED AND AFFIRMED.

Holding:

  • The trial court's grant of a divorce to Ferdinand J. Fletcher is affirmed.
  • The trial court's denial of the wife's claim to alimony is affirmed (the appellate court found no manifest error in the trial judge's factual findings that the wife did not, by a preponderance of the evidence, show she was not at fault).
  • The judgment is amended to nonsuit the defendant's claim for attorney fees; that portion of the claim is dismissed for the reasons stated.

Implications:

  • The direct effect is that the plaintiff obtains a divorce; the wife receives no alimony; and the wife's claim for attorney fees is nonsuited.
  • The opinion applies established standards of appellate review for factual findings and does not announce or discuss any new legal principles beyond applying existing statute and precedent; no broader rule or novel precedent is stated in the opinion.
Show full summary ...

FLETCHER v. FLETCHER

FOURNET, Justice.

Ferdinand J. Fletcher instituted this suit against his wife, Emma P. Fletcher, to secure a divorce on the ground that they had been living separate and apart for more than two years. In her answer the defendant admitted the separation had occurred more than two years previous but, averring it was precipitated by the plaintiff's neglect, abuse, and cruel treatment, she asked for alimony in an amount to be fixed by the court and for attorney fees of $150. There was judgment in the lower court granting the divorce but denying the wife's claim to alimony. She is appealing from such judgment.

The parties having lived separate and apart for more than two years, the plaintiff was entitled to a divorce, Act No. 269 of 1916, as amended by Act No. 430 of 1938; White v. Broussard, 206 La. 25, 18 So.2d 641, thus leaving for our consideration the question of whether the wife, by a preponderance of the evidence, established her right to alimony under Article 160 of the Revised Civil Code, as amended, wherein it is provided that where "the husband has obtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income." (Italics ours.)

This question was resolved against the wife by the trial judge and his findings in this respect will not be disturbed unless they are manifestly erroneous. Abbott v. Abbott, 199 La. 65, 5 So.2d 504; Jones v. Jones, 200 La. 911, 9 So.2d 227; Gerstner v. Stringer, 205 La. 791, 18 So.2d 195; Matheny v. Matheny, 205 La. 869, 18 So.2d 324. From our appreciation of the facts in this case as found in the very meager note of evidence that is in the record, it is our opinion that the trial judge's conclusion in this respect is correct.

Counsel for the appellant calls our attention to the fact that the trial judge in his judgment failed to allow the wife's claim for attorney fees and he asks that we fix such fees in accordance with her demand.

A reference to the record shows that the trial judge not only did not adjudicate upon this particular claim, but that the reason for his failure in this respect is not evident and it is not even clear that he gave the matter any consideration. In view of this fact and the condition in which we find the record, we do not feel justified in giving this matter the consideration requested, particularly since the defendant has failed to cite any authorities in support of her right to attorney fees in a case of this kind. Such right as she may have, if any, is reserved to her and her claim in this respect is, therefore, nonsuited.

For the reasons assigned, the judgment of the lower court is amended by nonsuiting the defendant's claim to attorney fees and as thus amended it is affirmed.

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FLETCHER v. FLETCHER
(Jan 12, 1948)