Gradney v. Gradney

SAVOY, Judge. Plaintiff filed a suit against his wife for a divorce on the ground that they had been living separate and apart for a period in excess of two years. The wife admitted that the parties had been separated for more than two years. She then filed a recon-ventional demand asking for alimony, and also alleged she was not at fault in the divorce proceeding. After a trial on the merits, the district judge granted plaintiff a divorce against his wife and disallowed her reconventional demand for alimony on the ground that she had not carried the burden of proof showing that she was not at fault as provided by LSA-C.C. Article 160. The jurisprudence of this State is well settled to the effect that in an action for permanent alimony following the granting of a divorce in favor of the husband on the ground that the parties have been living separate and apart for a period of two years, the burden of proving that the wife has not been at fault is on her. Kelly v. Kelly, (La.App, 3 Cir, 1965), 179 So.2d 458; and Moreau v. Moreau, (La.App, 3 Cir, 1962), 142 So.2d 423, and cases cited therein. In the Moreau case, supra, the Court said: “The word ‘fault,’ as used in Article 160 of the LSA-Civil Code, contemplates conduct or substantial acts of commission or omission on the part of the wife, viola-tive of her marital duties and responsibilities, which constitute a contributing or a proximate cause of the separation and continuous living apart. Felger v. Doty, 217 La. 365, 46 So.2d 300; Chapman v. Chapman, supra (La.App, 130 So.2d 811), and cases cited therein.” The record reveals that the defendant left the premises and carried with her most of the family belongings. She did not return to the matrimonial domicile for a period in excess of two years, and plaintiff then filed the instant action for divorce based on the proposition that he and the defendant wife did not live together for a period in excess of two years. The wife did not contest this phase of the case. Her contention is that she was not at fault in living separate and apart from her husband for the two-year period, and, accordingly, should receive alimony under the provisions of LSA-C.C. Article 160. After reading the transcript in this case, we are of the opinion, as was the trial judge, that defendant wife has not carried the burden imposed upon her by LSA-C.C. Article 160 to show that she was free from fault; and the district judge correctly rejected her reconventional demand for alimón}'-. There was some evidence of trouble between the parties before the separation occurred; however, the disagreements were not of a serious nature, and we are unable to determine from the record who precipitated the controversy or controversies which caused the separation between the parties. For the reasons assigned, the judgment of the district court is affirmed at defendant-appellant’s costs. Affirmed.