More Jurisprudence
re
Breach of the Duty of “Positive” Fidelity
_________
Dickinson v. Dickinson,
399 So. 2d 651 (La. App. 1st Cir. 1981)
Page 1 of 8
The husband, Joel B. Dickinson, sought
a judgment of separation from his wife,
Jeanelle M. Dickinson, based on specifically
alleged acts of cruel treatment. Mrs.
Dickinson reconvened for a judgment of
separation based on abandonment and acts
of mental cruelty. From a judgment in favor
of the plaintiff granting a separation between
the parties and dismissing the defendant's
reconventional demand, Mrs. Dickinson
appeals. We affirm.
At the trial . . . . The evidence reveals
that the wife, for a period of several years,
and without the husband's consent,
unjustifiably refused to have sexual relations
with her husband.
It is settled that cruel treatment by one
spouse of the other, in any form which
renders living together insupportable, is a
proper legal ground for separation from bed
and board. LSA-C.C. art. 138; Gilberti v.
Gilberti, 338 So.2d 971 (La.App. 4
Cir.1976). Thus, a persistent refusal to
engage in sexual union, inthe absence of
consent or sickness or grave fault may
constitute cruel treatment. Phillpott v.
Phillpott, 285 So.2d 570 (La.App. 4
Cir.1973), writ refused, 288 So.2d 643
(La.1974); see also Von Bechman v. Von
Bechman, 386 So.2d 910 (La.1980); Denbo
v. Denbo, 345 So.2d 1257 (La.App. 1
Cir.1977).
Based on the totality of the
circumstances, the trial court found Mrs.
Dickinson was guilty of cruel treatment. In
such situations as this, the findings of the
trier of fact should be left undisturbed in the
absence of manifest error. Trosclair v.
Trosclair, 337 So.2d 1216 (La.App. 1
Cir.1976); Gurtner v. Gurtner, 258 So.2d
148 (La.App. 4 Cir.1972). We cannot state
that manifest error is present here.
Accordingly, for the above reasons, we
affirm the judgment decreeing a separation
from bed and board in favor of plaintiff, Joel
B. Dickinson, and against defendant,
Jeanelle M. Dickinson . . . .
Page 2 of 8
_________
Taddonio v. Kinney-Taddonio,
428 So. 2d 486 (La. App. 4th Cir. 1983)
Page 3 of 8
Plaintiff and defendant were married in
April, 1975 in Alabama and, subsequently,
moved to New Orleans, Louisiana.
On
April 18, 1980, the plaintiff, Dr. Taddonio,
left the matrimonial domicile. In May of
1980, he filed suit for separation from bed
and board alleging cruel treatment by his
wife of such anature as to render their living
together unsupportable. . . .
In his petition, Dr. Taddonio alleged
cruel treatment in that his wife had refused
to engage in any conjugal relations for a
period of nine to ten months prior to his
departure from the marital domicile. The
evidence attrial proved to the court's
satisfaction that Mrs. Taddonio did deny her
husband sexual relations during the nine or
ten months prior to their separation. The
trial judge, in his Reasons for Judgment,
stated he believed that Mrs. Taddonio
persisted in this denial without justification.
...
Mrs. Taddonio appeals contending that
the trial judge was manifestly erroneous in
finding her at fault for the initial separation.
We can find no manifest error and
accordingly affirm.
. . . The specific, and only, fault which
the trial judge assessed to the defendant, was
that she did deny her husband sexual
relations during the nine or ten months prior
to their separation.
A determination of her fault is based
upon the factual findings of the trial court,
and the determination will not be disturbed
absent manifest error. Pearce v. Pearce,
348 So.2d 75 (La.1977);
Morgan v.
Morgan, 260 So.2d 336 (La.App. 4th
Cir.1972). An examination of the record
indicates that the trial court's specific
finding that the wife unjustifiably denied her
husband sexual relations is supported by the
evidence.
Dr. Taddonio testified that his wife had
refused to engage in sex with him for nine
months prior to their separation. Mrs. Pat
Blanchard, a neighbor and close friend of
the Taddonios, testified concerning the
marital problems between the plaintiff and
the defendant. Mrs. Blanchard stated that
Mrs. Taddonio told her that it had been nine
months to a year since she (Mrs. Taddonio)
had sex with her husband. Mrs. Taddonio
also related to Mrs. Blanchard that she was
having problems and was not interested in
sex at all.
In addition to the testimony, Dr.
Taddonio introduced into evidence a letter
dated May 22nd, 1980, which was written to
him by his wife.
In this letter, Mrs.
Taddoniorefers to "problems" existing
between her and her husband for the ten
months prior to the date of the letter.
Although the letter did not specifically refer
to any sexual problems, the trial court
viewed the letter as damaging to Mrs.
Taddonio because she mentioned the same
time period referred to by Dr. Taddonio in
his petition for separation.
The allegation that she refused to have
sex with her husband was denied by Mrs.
Taddonio. She testified that she and her
husband engaged in sexual intercourse on
numerous occasions throughout 1979, and
that she had attempted to engage in sexual
relations with her husband after January,
1980, but without success.
The trial court chose to believe the
testimony of Dr. Taddonio concerning the
denial of sexual relations. In its Reasons
for Judgment, the trial court stated that the
proof offered by Dr. Taddonio was
adequate. In reaching this decision, the trial
judge stated that he relied heavily upon the
testimony of Mrs. Blanchard and upon the
letter which Mrs. Taddonio had written to
her husband.
La.Civ.Code art. 141 which authorizes
Page 4 of 8
a separation in cases of mutual fault
presupposes that each party has committed
fault constituting an independent ground for
separation under La.Civ.Code art. 138.
Dixon v. Dixon, 357 So.2d 856 (La.App. 4th
Cir.1978). To be considered as fault, the
spouses' conduct 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 (La.1958). The denial
of sexual intercourse to one's spouse
unjustifiably and persistently constitutes ill
treatment within the meaning of C.C. art.
138 and is a legal ground for separation.
Phillpott v. Phillpott, 285 So.2d 570
(La.App. 4th Cir.1973), writ refused 288
So.2d 643 (La.1974).
See also Von
Bechman v. Von Bechman, 386 So.2d 910
(La.1980).
The defendant contends that the
evidence adduced at trial did not show that
she persistently and unjustifiedly refused to
engage in sexual relations with her husband.
The jurisprudence of Louisiana wisely does
not enunciate a rule for the minimum
frequency of sexual intercourse required to
constitute cruel treatment. Each case must
of necessity be judged on its own merits.
The evidence at trial indicates that Mrs.
Taddonio refused her husband sex for a
minimum period of nine months. Also, the
record is absent any justification for the
actions of Mrs. Taddonio. . . .
Though a factual dispute exists in the
record regarding the wife's refusal of sexual
relations, the trial judge chose to believe the
husband's testimony.
In the area of
domesticrelations, much discretion must be
vested in the trial judge particularly in
evaluating the weight of evidence which is
to be resolved primarily on the basis of the
credibility of witnesses. Pearce v. Pearce,
supra.
The factual findings of the trial
court are to be accorded substantial weight
on review Gilberti v. Gilberti, 338 So.2d
971 (La.App. 4th Cir.1976).
Our examination of the totality of the
circumstances in the case leads us to
conclude that the trial court's findings that
the wife unjustifiably denied her husband
sexual relations is supported by the
evidence.
For the foregoing reasons, the
judgment of the trial court in Case No. CA0261 is affirmed at appellant's costs.
Page 5 of 8
_________
Coleman v. Coleman,
541 So. 2d 1003 (La. App. 3d Cir. 1989)
Page 6 of 8
Plaintiff, Jerry Coleman, filed suit for
separation from bed and board against his
wife, Ruby Coleman, alleging cruel
treatment. . . . After a trial on the merits, the
trial judge granted a legal separation based
on the mutual fault of both plaintiff and
defendant. Defendant appeals, urging error
in the trial judge's finding that she was at
fault. We affirm.
Mr. and Mrs. Coleman were married on
February 28, 1970. On July 31, 1985, Jerry
Coleman left the matrimonial domicile and
the parties have lived separate and apart
without reconciliation since that time. At
trial, Mr. Coleman testified . . . that his wife
moved out of their bedroom, and that he
feared she would move out of the house,
taking the children with her. . . .
...
Mrs. Coleman admitted at trial that she
had emotional problems which she claimed
were caused by her husband.
She
acknowledged . . . refusing to have sexual
relations
with
her
husband
for
approximately six months.
The trial judge entered written reasons
for his decision. He stated:
". . . . Mrs. Coleman did admit
however, that for some six
months prior to the separation,
she had denied Mr. Coleman
sexual access to her.
Mr.
Coleman's testimony revealed
that he considered such a denial
to be cruel treatment on Mrs.
Coleman's part.
Article
138
of
the
Louisiana Civil Code provides
specific grounds for separation,
and paragraph three of that
article is specifically appropriate
in this case, in that it states that
aseparation may be granted: ‘On
account
of
habitual
intemperance of one of the
married persons, or excesses,
cruel treatment, or outrages of
one of them toward the other, if
such habitual intemperance, or
such ill-treatment is of such a
nature as to render their living
together insupportable.’
Thus, this Court finds that
both parties are at fault because
of their cruel treatment of each
other which has rendered their
living together insupportable.
. . ."
The jurisprudence is well-settled that in
the area of domestic relations, the factual
findings of the trial judge are accorded very
substantial weight on review.
The trial
judge's finding of fact on the issue of fault
will not be disturbed unless manifestly
erroneous. Pearce v. Pearce, 348 So.2d 75,
78 (La.1977).
...
In the instant case, the trial judge's
finding of mutual fault rested on a
determination that the cruel conduct alleged
by each party rendered their living together
insupportable.
After carefully reviewing
the record, we find that the trial court did not
err in finding mutual fault. . . .
Finally, we address the contention that
the trial judge erred in considering evidence
of Mrs. Coleman's refusal to have sexual
relations with her husband for a period of six
months.4 It is within the discretion ofthe
4
We note that the trial judge initially ruled
that the testimony of Mr. Coleman relating to
Mrs. Coleman's sexual denial was inadmissible.
Mr. Coleman made a proffer of his evidence
under LSA-C.C.P. art. 1636. Later, the trial
judge allowed Mrs. Coleman to testify that she
had refused sexual relations with her husband
for about six months.
This testimony was
consistent with the proffered evidence.
Page 7 of 8
trial judge to admit or disallow evidence
subject to an objection based upon the scope
of the issues and pleadings.
It is also
discretionary for the trial judge to determine
whether evidence is encompassed by the
general issues raised in the pleadings.
Coutee v. American Druggist Insurance,
Co., 453 So.2d 314, 317 (La.App. 3d Cir.),
writ denied, 458 So.2d 477 (La.1984). We
find that the evidence of Mrs. Coleman's
sexual denial was admissible for the purpose
of explicating Mr. Coleman's allegation of
cruelty.5 Furthermore, the highly subjective
determination of whether sexual denial
constitutes fault mandates that a reviewing
court grant great deference to a trial judge's
finding. Derbes v. Derbes, 462 So.2d 302,
307 (La.App. 3d Cir.), overruled on other
grounds, 477 So.2d 84 (La.1985). In the
instant case, the trial judge did not err in
finding that Mrs. Coleman's lack of sexual
responsiveness constituted cruel treatment.
It is apparent that the trial judge
believed that each spouse had sustained his
or her burden of proof by establishing fault
on the part of the other spouse. The record,
taken as a whole, supports the factual
conclusions of the trial judge. . . .
For the above and foregoing reasons,
the judgment of the trial court is affirmed. . .
.
5
It is well-established in Louisiana
jurisprudence that the unjustified, persistent
denial of sexual intercourse constitutes "cruel
treatment" within the meaning of LSA-C.C.
Article 138. Bateman v. Larson, 452 So.2d 184
(La.App. 4th Cir.1984).
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