Guthrie v. Rinker

CHEHARDY, Judge. This is an appeal by the husband from a judgment awarding his wife a divorce, and continuing alimony previously awarded by the court.1 Plaintiff alleged she was abandoned by her husband without just cause and that the parties have lived separate and apart without reconciliation for a period in excess of one year. The trial court found defendant did abandon his wife, thus establishing fault on his part. While there is conflicting evidence, with the husband claiming his wife asked him to leave and packed all of his clothing in garbage bags and the rest of his belongings in a box, and the wife claiming she asked him not to leave and the only things she put in a box were books and magazines, it is clear the court accepted the testimony of the wife. It is our established jurisprudence that findings of fact by the trial judge, particularly when they are dependent upon credibility of witnesses, are entitled to great weight and will not be disturbed on appeal in the absence of manifest error. Arceneaux v. Adams, 366 So.2d 1025 (La. App. 1st Cir. 1978); Echizenya v. Armenio, 354 So.2d 682 (La.App. 4th Cir. 1978); Moss v. Security Nat. Ins. Co., 350 So.2d 247 (La.App. 3d Cir. 1977); Usie v. Bonvillain, 348 So.2d 728 (La.App. 1st Cir. 1977); see also 2B La.Dig. Appeal and Error 1008(1). We find no error here. We note, however, that there is no request for alimony in plaintiff’s petition for divorce, nor any evidence offered in support thereof. Therefore the award for the continuation of alimony was erroneous. Since the matter of fault has been determined the wife is not precluded from seeking alimony at a later date, should she become in necessitous circumstances. For the reasons assigned the judgment appealed from is amended to eliminate the award for alimony. In all other respects the judgment appealed from is affirmed. AMENDED AND AFFIRMED. Footnotes [1] By consent judgment in connection with a rule for alimony pendente lite, alimony was set in the sum of $25 per month.