Cases for persons

11/5/2013 9:59:00 AM

Nullity of marriage cases (Chp 3)

Case: Lacoste v. Guidroz (relative nullity)
Facts: P & D married.

P claims that only consented to it b/c was forced to by violence & under the fear on of
threatened prosecution for a felony which he didnt do.

Had a marriage certificate in proper form, signed by parties, & witnessed.

P further claims that though both & his mom (he was a minor?) gave their consent to
the marriage, it was only given conditionally due to fact that divorce was supposed to be
immediately granted.

There was a ceremony, there was no impediments (he was a minor and his mother
signed), and there was consent at the wedding
a. (P) claims that he gave consent under duress however this would only make the
marriage relatively null until judicially declared null

HOLDING: P didnt fully willingly consent to marriage, however duress is not present b/c
the unlawful element of it is missing

Nothing was unlawful b/c he was innocent & didnt do anything wrong to be
threatened

For duress to void a marriage it must be a threat of an illegal act and it does not seem
that the (P) was threatened by an illegal act

Rehearing REMANDED for purpose of determining whether the threatened prosecution was
authorized by law, or used to procure the Ps consent by threats for an unjust & illegal cause

P was a minor, & moved to Europe right after marriage to avoid prosecution, prior ct
didnt take this into account in rendering their decision

Was he really in fear when consented? need more facts

*Message= a relatively null marriage IS a marriage, thus isnt terminated until judicially
declared null (*how differs from absolutely null marriage*)
Rule: CC 1959- Duress MUST be of such a nature as to cause a reasonable fear of unjust &
considerable injury to a partys person, property or reputation

CC 1959- take into account age, health, disposition & the like
o

Threats of criminal prosecution may be duress in some circs

CC 1961- Duress can be exerted by a 3rd person

CC 1962- threat of doing a lawful act doesnt constitute duress. If it is truthful

**when evaluating duress court looks at age, understanding, ect. of the person

Case: Stier v. Price (lack of consent)

Facts: this case is for an annulment by the wife after 12 years of marriage

(P) contends that:

1) her consent to the marriage was not fee fro the reason that she wold not have
married if she would have known that her husband was insane

2) that her husband was not capable of giving free consent

Discussion: the opinion states that (P) did not show that her husband did in fact have a
mental condition or that she has not freely and without constraint lived and cohabited with
her husband after discovering the condition

The court further explains that the wife she in not entitled to a nullity claim because the
facts she presents does not meet the standards set forth in the code

Rule: The court cited the code that stated that the marriage could only be annulled by the
application of both parties or of that one whose consent was not free

There fore because the wife gave free consent at the wedding and cohabitated with the
husband for 12 years it seems that she gave free consent

Further the only party who did not give consent according to the wife was the husband
so he would be the only party with a claim

Holding: the court ruled in favor of the (D) and stated that the only party who could bring
a complaint is the husband or his party
Case: Succession of Marinoni
Facts: J & U married, but marriage wasnt performed by a priest.

U tricked J into having their marriage performed this way b/c J was a orphan minor, who
didnt understand English, & knew nothing of the US laws.

U told her priests blessing wasnt needed to constitute a valid marriage.

P was conceived by J, while J believed in GF that she was the true lawful wife of U.
o

(P) convinces jury that his mother was in good faith when she married

U married his present wife in 1901, upon which Js GF that she was his wife ceased.

P claims that J & Us marriage was a putative marriage, from which the children may
claim the civil effects.

Issue: Should (P) receive the civil affects of the invalid marriage?
Rule: if only 1 of the parties acted in GF, the marriage produces its civil effects only
Discussion: In his/her favor of the kids born of the marriage

J was in GF b/c she was tricked into reasonably believing this marriage was valid &
didnt know any better (believer her H to be)
o

Error doesnt effect the validity of GF, as long as GF reasonably existed

**a party claiming bad faith has the burden of proof**

His marriage to #2 was valid, b/c his & Js marriage was absolutely null & thus never
existed

Best Argument to NOT apply the putative marriage doctrine in this case = it is
acknowledging a common law marriage
o

But, here, there was some type of formality & her ignorance of process & trust in
her H was grounds to apply putative marriage doctrine

Holding: J reasonably believed that the marriage was valid & no legal impediment infringed
on such, thus the civil effects of J & Us marriage flow to P, their child.
**this case is usually distinguished because of it unusual facts**
Case: Succession of Rossi
Facts:
Issue: IS there a putative marriage without a ceremony?
Rule: there MUST be some kind of ceremony for a putative marriage to exist, b/c cant
have a marriage when marriage isnt Ked for

No documentary proof of the marriage was introduced

No competent & credible evidence that marriage was Ked or any formalities were
observed

Holding: HELD that a putative marriage didnt exist when no ceremony takes place

This court stated that they do not agree with Marioni but if the facts were identical they
would have to follow that case but the court distinguished that case from the present

****LIMITED Marinoni to its facts**

There W was an immigrant, trust in lawyer H, ignorance of law, minor, etc

CA ceremony is where the marriage is Ked, thus w/o 1 how is the ct bound by
Marinoni?
o

CC 96 proscribes that ceremony = K of marriage (CC should prevail), so

when no ceremony takes place there should be NO valid marriage & thus
no putative marriage regardless of the circumstances

Case: Thomason v. Thomason

Facts:

Barbra, wife, filed for a divorce in 98.

But Roger stated that marriage never happened.

Roger asked Barbra to marry him, so went to ct house in MS & obtained marriage
license.

There was no ceremony, but B thought a justice of the peace married her & H.

H also gave her a wedding ring.

H said that they were unable to find justice of the peace, there was no ceremony & they
just went to a hotel.

But both H & B held themselves to be married after the trip to MS for 40 yrs. H never
told her they werent married until their 1st kid was born.

Issue: Should (P) get the rights of a putative marriage? Was she in good faith?
Rule: an absolutely null marriage nevertheless produces civil effects in favor of a party who
K'ed it in GF for, as long as that party remains in GF.
Discussion: Bs testimony wasnt inconsistent, as was Rogers, thus her testimony of what
she believed in re: to the marriage was taken as more credible

H tricked her into believing they had a valid marriage, when they didnt

Ex: of #2 GF above

H took advantage of her ignorance & deliberately didnt tell her they werent married, so
B didnt know marriage was defective

Ct found that putative marriage existed probably b/c the time they spent together b4
seeking annulment b/c it was 40 yrs + didnt believe Roger at all

Holding: Thought they werent validly married, B was in GF & thus entitled to the civil
benefits of marriage as a putative spouse up until Hs filing of the divorce petition
Mara v. Mara
Facts: P, W, & Ds, H, marriage was declared null due to the fact that Ps previous marriage
to B had never been dissolved.

However, P sought divorce from B in cts of AL.

P went to an attys office & signed various documents, all believed to be the vehicles of
a legal divorce, & for such services she paid the atty $350 & in return received what she
thought was a divorce decree (it had AL seal, stamped w/ date, & signed by Register of
the ct).

P married D shortly afterwards & D attempted to adopt Ps kid shortly after.

Upon doing so, he found out that there was no record of divorce for P & B in 73.

Despite this notice, D continued to live w/ P as his W until a yr later when P filed action
to nullify their marriage.

P claims as a putative spouse she is entitled to community b/t her & D.

Tr ct ruled in Ds favor insofar as P was found to be in BF & thus not entitle to CP under
the putative spouse doctrine.

HOLDING P was in GF & had reasonable belief that her divorce from B was final & valid, &
thus there was no impediment on her marriage to D, therefore she is entitled to the civil
fruits of her marriage to D in that she has sufficient putative spouse status
Rule: GF is presumed accept when one seeking putative status is the one with prior
undissolved marriage. There the party mut prove their GF.

*R= spouse that was previously married & is undissolved must bear the BOP of
proving his/her GF in the allegedly putative marriage
o

MUST prove GF affirmatively too b/c in this situation GF isnt presumed

Discussion:

P met this burden, b/c divorce documents she received in AL appeared to be valid, its

unreasonable that she wouldve paid atty if she knew they wouldnt have legal effect
Thus, both P & D were in GF when they Ked their marriage

*R= HOWEVER, if spouse WASNT previously married GF is presumed, & BOP is on the
spouse claiming that GF is lacking

GF is presumed here

Q= Would the result be the same if they acquired the property after she found out about
her faulty marriage?

A= NO, she wouldnt be entitled to the property b/c would no longer be in GF

BUT D would be entitled b/c of CC 96 clause that says if was in GF & didnt know
of legal impediment of their spouses prior marriage etc.

Case: Eddy v. Eddy

Facts:
Harold Eddy (D), husband, claims that his marriage to P was a nullity due to the fact that
her previous marriage to previous wife was never dissolved, & thus (P) Omega has no cause
of action to obtain the civil effects of her & Ds marriage.

exhusband & (P) separated in 43 & exhusband gave (P) reason to believe they were
divorced.

P claims that she should be accorded the rights of a putative spouse insofar as she was
in GF in believing that her marriage to D was valid.

Issue:
Rule: GF is presumed & the BOP of proving contrary rest on the party who alleges it (here,
P)
Discussion: P was 16 when married T & only had a 6th grade education, & T told P after
they separated that he was going to get a divorce & the that he later obtained one, thus she

believed him & didnt continue the divorce action GF

Ex: of #1 GF above

Ct found that putative marriage existed probably b/c she was young & ignorant + GF
should entitle P to alimony (if not in GF dont get alimony, thus kids arent protected)

Case also turn on the credibility of the parties, here P was more credible than D (liked
her more)

Holding: P was the putative wife of D, & the evidence establishes that both her & D were in
GF when their marriage was consummated, thus P is entitled to the civil effects of her & Ds
marriage
Case: Holcumb v. Kincaid (fraudulent inducement to marry)
Facts: Tort actions in family law.

P (wife) & D (husband) were both married prior.

P obtained her divorce 1st.

Judge then took Ds 1st divorce into advisement, & 5 days later P & D married.

1 week later judge rendered a divorce decree to D (to his previous marriage.

At the annulment proceeding of P & Ds marriage P was found to be a GF putative

spouse & was awarded alimony & her share of the Community Property.

However, P brought this suit, alleging fraud by the D for concealing his marital status at
the time of their marriage (she didnt know he wasnt yet divorced).

P prayed for damages for lost wages & retirement pay, humiliation, embarrassment,
indignation & mental anguish & suffering.

D claims that since P has received her share of the CP & is receiving alimony, she has
received everything she is legally entitled to as a putative spouse.

Issue:
Rule: a CC 2315 wrongful death action is a civil effect inuring to the benefit of a putative
spouse of an invalid marriage
Discussion:

MI SC held that there is a cause of action of fraudulent inducement to marry & awarded
support payments & additional damages for mental anguish & suffering to a putative
spouse

NO LA precedent on the issue involved in this case

Nothing in CC 117 or 118 precludes this cause of action under CC 2315

There is no public policy reason for limiting a persons right to recover from some1 who
concealed his marital status from him

D testified that he knew he wasnt free to marry P, & there was ample evidence of fraud
on his part

This was an absolutely null marriage, b/c the Hs prior divorce judgment WASNT final b4
their marriage took place

On date they got married, he was still married = legal impediment

Ct found the way they did probably b/c he knew damn well he was still married, didnt tell
her, & married her anyway, thus fraudulent induced her to marry him

*Shows= on top of putative spouse doctrine can bring the fraudulent inducement to
marry action if circs permit (circs like these) in LA

*Permissible Circs= Spouse knew wasnt divorced + w/held that info from their spouse
KNOWING there was a legal impediment on the marriage + went through w/ the
marriage anyway

Holding: A request for damages b/c of fraudulent inducement to marry is a cause of action
under CC 2315, thus P is entitled to recover for such HOWEVER, this holding is LIMITED to
those instances where a person has fraudulently induced another to enter into a marriage K
Personal effects of marriage cases Chp. 4
Case: Favrot v. Barnes (Can contract anything as long as it is not against pub. policy)
Facts: they are filing for divorce.

(P) is arguing that the agreement waiver by each of every claim of property is a waiver
of alimony
a. court rejects this argument because waiver of alimony is not a claim of property
but a claim against the husband limited to his income (art. 160)

1. (P) other argument is that the agreement was to have sex 1 time a week and the wife
was wanted sex 3 times a day

the court rejects this argument stating that a premarital understanding can
repeal or amend the nature of marital obligations under art. 119

Art. 2325 only allows conjugal association in relation to property

Art. 2327 prohibits alteration of marriage like that agreed to here and this is
supported by art. 119 that states these rights are mutual

Holding: Marriage obliges the spouses to fulfill the reasonable & normal sexual desires of
each other

Rejected the view that pre-martial understandings can repeal or amend the nature of
the marital obligations in CC 98

CC 98- the husband and wives owe to each other mutually, fidelity, support &
assistances

*but, courts WONT enforce any agreement that derogates from CC 98 obligations

Discussion:

*Can K to keep separate property separate in pre-nup b/c doesnt violate CC 7 & 98

*CANT waive the right to receive INTERIM (pre-divorce) alimony in a pre-nup

B/c is in derogation to the obligation to render support in CC 98

*Side Note- CAN waive alimony POST-DIVORCE though

CC 98 obligations are important in the context of getting final spousal support

If are in derogation of any of these obligations (wont have sex w/, etc.)
WONT get final spousal support

Mutual Fidelity
Case: Currier v. Currier (mutual fidelity obligation)
Facts: M & J were married in 69, lived together, had 1 son, but 1 day J left home & they
never reconciled.

M, P here, then petitioned for divorced on grounds that they had been separated for
more than 1 year w/o reconciliation.

She sought alimony (final spousal support) of $150/month.

J claims that several aspects of Ps conduct reflected her fault thus she isnt entitled to
alimony.

Trial court held that P wasnt at fault, & thus is entitled to $450/month in alimony.

Issue:
Rule:

R= a justifiable, reasonable response by 1 spouse to the others initial fault doesnt

constitute fault

P wouldnt have sex w/ him only really when he was real drunk

Even though she breached her CC 98 duties, Js actions in large part precipitated
these altercations thus she was justified in doing so

Thus, she DID breach her obligation of positive fidelity under CC 98 but was
justified in doing so, so wasnt at fault

R= a party shouldnt be deprived of final spousal support simply b/c he/she isnt totally
blameless in the marital discord

Discussion:
*She had to prove that she was free from fault to get final spousal support (her BOP)

BUT DOESNT have to prove that he was at fault

2 views of fault

(1) Fault: only misconduct that could deprive a spouse of final spousal support are (1)
adultery, & (2) imprisonment for a felony

NOW these are the ONLY grounds for divorce

(2) Fault: conduct or substantial acts of commission or omission by the W violative of

her marital duties & responsibilities [fidelity, support, & assistance] conduct MUST be
(1) of a serious nature & (2) an independent contributory or proximate cause of the
separation

Holding: P was entitled to final spousal support, b/c she was JUSTIFIED in failing to meet
her CC 98 obligation
*Message= some fault is excused due to justification & thus wont preclude ones ability to
final spousal support
Mutual Support
Case: Chi v. Pang [mutual SUPPORT obligation]

D attacked P w/ knife & criminal charges were filed against him.

P never filed for divorced, but D & P were living separate & apart.

P sued for support,

HOLDING Spouse, not yet divorced, can sue other spouse for SUPPORT if living separate
& apart in certain instances
Rule:

La. R.S. 291 exception applied here

Standard for how much she is entitled to while SEPARATE & APART (not yet divorced)=
STATUS-QUO STANDARD

Discussion:
*Status-Quo Standard= what had while living during marriage, as far as the economic
circs are concerned

I.e.- what you are USED to

*DOESNT matter if need it or not (necessive circs), thus dont have to show
that need it, just what need

WHY?... b/c their STILL married, NOT divorced yet

2 other ways to accomplish same thing (besides La.R.S. 291)

(1) Domestic Abuse Act- if subject to protective order, may get support order even if not
yet divorced from spouse

(2) Criminal neglect of family

Termination of marriage cases (Chp 5)

Fault based divorce (adultory 103(2))
Case: Arnoult v. Arnoult
Facts: after separation the wife spent a few nights a club

Two private investigators testified that they witnessed the wife and another man kissing
outside and on the dance floor

The second occasion the private investigators witness the two go into his house

The ex-wife and boo testified that they never had any sexual relationship.

Issue: Did this constitute grounds for adultery

Rule: prima facia case of adultery can be proven by showing facts/circs that lead fairly &
necessarily to the conclusion that adultery was committed
Discussion: the court stated that because of the totality of evidence Mrs. Arnoult
committed adultery
Holding: Mr. Arnoult was is granted fault based divorce
Case: Bennett v. Bennett
Facts: After separation and before divorce the husband stated seeing a woman and took
many trips with her

He admitted to staying a single room with her on the occasions

He admitted to the desire to have a sexual relationship and to trying

He also claims that he was impotency and therefore failed on every occasion.

Issue: Whether the trial court erred in holding defendant was not guilty of adultery and if
(D) be found guilty of adultery does (P) have the right to alimony after divorce even though
she was found at fault in the separation proceedings
Rule: to prove adultery the circumstantial evidence must be so strong that no other
reasonable conclusion can be drawn.
Holding: The court granted a divorce to Mrs. Bennett on the ground of adultery

The court said that based on the fact there can be no other conclusion drawn other than
an adulterous relationship existed between them

Case: Menge v. Menge

Facts: Husband alleges wife is guilty of adultery and custody of couples minor trial court
found in his favor

Wife answer and demand alleging that she was entitled to separation based on cruel
treatment and abandonment

She claims that she kissed by never had any sexual intercourse

She stated that her actions did not constitute adultery

Two private investigators witnessed the wife and a boo kissing and on multiple occasions
occupy her apartment with the lights off for a period of time

On a few of these instance the child was in the house

Rule: there are two

(1) It must be alleged that the offending party was guilty of adultery or was guilty of having
sexual connection or intercourse which mean the same thing
(2) the burden of proof required in adultery cases is the requirement of evidence so
convincing that it excludes all other reasonable hypotheses than that of guilt of adultery
Issue: Did the actions that Mrs. Menge performed constitute adultery?
Holding: Oral sex constitutes adultery and with the admission of committing oral sex and
the testimony of the detectives that Mrs. Menge committed adultery
Commission of a felony
Case: Nickels v. Nickels (case shows that you can file the day after judgment is ordered and
can file even when appeal is pending)
Facts: P brought this proceeding for a divorce when her H was convicted as a 2 nd felony
offender & sentenced to 10 years at hard labor.

P testified that she & her H had not reconciled since his conviction.

Trial court held that since the conviction wasnt final that the divorce proceeding was
premature, & dismissed Ps demands w/o prejudice.

HOLDINGL a showing of the conviction of a felony & a sentencing to hard labor establishes,
more probably than not [preponderance standard], that the accused is guilty of the
offense, thus P is entitled to her divorce
Rule: CC 103(3) to entitle a spouse to an immediate divorce, the statute requires only the
conviction of a felony & his sentence to imprisonment at hard labor

Subject to a PREPONDERANCE standard that the other spouse has more probably than
not committed a crime

Discussion: *Conviction & sentencing ALONE are sufficient to provide the grounds for
divorce, & the public policy underlying this ground for divorce is satisfied by this initial
determination of guilt & sentencing

*Thus, if conviction is on appeal can still get divorce

Policy= public humiliation impact on other spouse; & isnt in the marital assn so would
be deprived of a normal life w/ some1

No Fault divorce (103.1 divorce)

Case: Adams v. Adams
Facts: (D) husband, was hospitalized for mental illness in 3/77 & then subsequently placed
on probation for 18 months in connection w/ the incident that led to his hospitalization.

He had verbally & physically abused P (wife), which led her to move in w/ her sister.

As of 7/22/77 P & D ceased living together, due to the fact that he was again
hospitalized.

2 & years later, 1/80, P filed this action for divorce from D on grounds of having lived
separate & apart continuously for more than 1 yr.

Trial court denied P the divorce, due to the fact that at the time of initial separation D
was insane & under La. R.S. 9:301 & its relevant jurisprudence it is necessary for both
parties to be found sane at the time of separation in order to be grounds for divorce.

Issue: Does separate and apart mean voluntary on both parties?

Rule: Under La. R.S. 9:301 it is only necessary insofar as living separate & apart that the
separation was voluntary on part of 1 of the parties [NOT BOTH] + continued for a period of
1 yr or more, & the commencement of this yr begins only when a spouse evidences their
intent to end the marital assn
Holding: Thus, P is entitled to divorce b/c she satisfied by a preponderance that she & D
lived separate & apart continuously for more than 1 yr
Discussion: Insanity of 1 party doesnt defeat the voluntariness of the other under La. R.S.
9:301

R= need continuous separation for more than 1 yr + intent to end marriage =

divorce grounds for living separate & apart
o

Ps intent to end marriage told Ds probation officer & her sister she feared
her life & was never going back to D
i. Also filed suit for separation of bed & board just 7 months after they
separated & 2 yrs b4 this suit was filed

Separation period 7/22/77 1/30/80 (2 yrs)

Voluntariness: evidences an intent to end the marital assn

o

HYPO If move to other of duplex (W lives in other ) for 6 months. Can he

get a divorce?

Case: Gibbs v. Gibbs

Facts: On 7/9/96 P (Husband), filed petition seeking judgment of divorce on grounds of

living separate & apart from D (Wife) for more than 6 months from the filing of his divorce
petition.

P testified that physically separated from D (wefe) & moved to Dallas on 7/24/95;
o

initially move was temporary but after 3 months stayed & didnt return to live w/
D (Wife);

He had a gf, B, that he lived w/.

D (wife) testified that she had no knowledge that P (husband) planned to live separate &
apart until served w/ petition for divorce;
o

that P (husband) visited their home several times & hugged & kissed her, but
they never had sex or stayed the night.

The last contact they had was in 2/96 when P (husband) used the family car.

Trial cpurt granted P (husband) the divorce b/c it was clear that they had lived separate
& apart for the requisite time.

HOLDING P (husband) evidenced his intent to terminate the marriage + met requisite
time period, & thus is entitled to a divorce under CC 103
Rule= MUST be voluntary only on part of 1 of the spouse & continuous for the requisite
period
Discussion: Ps intention to live separate & apart began at the latest in 12/95 (3
month mark in Dallas, when he decided to stay)

Never resided in matrimonial domicile after moved to Dallas

Visits there were infrequent, their duration short, didnt have sex w/ D ever after
moved

Lived in Dallas w/ B

Time 12/95- 7/9/96 is longer than 6 months (7-8 months)

Notes: Gibbs expanded the rule from Adams by relaxing the requirement of express
intent .

Actions can now demonstrate intent.

If express intent she could have sued for a fault based divorce or spousal support while
living separate and apart.

Adams there was express intent to end marital assn (told ppl)
Gibbs neither expressed their intent to end marital assn, but ACTIONS indicated such
[*tacit implication of intent to end marital assn*]

SHOULD express your intent to end marital assn b/c it can affect the money other
spouse can get

*Message= MUST be voluntary on 1 party + intent of voluntariness can now be evidenced,

tacitly, through 1s actions
102 Divorce
Case: Tomeny v Tomeny
Facts: wife filed for divorce after having lived separate and apart for 180 days

About 8 months later the husband filed a rule to show cause why the divorce should not
happen

Husbands action for divorce was raised by the rule to show cause which sufficiently
qualified a reconventional demand

Issue:
Rule: when a party files for an Art. 102 divorce and the requisite period of time elapses
either party then acquires the right to file a rule to show cause why the divorce should not
be granted
Holding:
Case: Parker v. Parker
Facts: P filed a petition for divorce on 2/2/93, & petition alleged they separated on
10/19/92. (filed 103.1 and 102)

Petition demanded a CC 102 divorce.

Divided the CP in 3/93. Judgment of divorce was signed in 8/93.

D filed a motion for abandonment under CCP 3954, b/c CC 102 procedure wasnt
followed.

Issue:
Rule: must file a rule to show cause with in 2 years
Holding: This wasnt a valid CC 102 divorce b/c procedure wasnt correctly followed under
CCP 3945 never any rule to show cause

Rule to show cause wasnt filed or served on the D w/in 2 yrs

Atty shouldve waited 180 days of separation & then filed a CC 103(1) divorce

Filed within the 180 days therefor invalid

How should file a 103.1 b/c the separate and apart but this will reinstate community
property till when new petition

Case: Rivette v. Rivette

Facts: In 11/03 P (wife) & D (husband) separated when D moved out of marital domicile.
(filed 103.1 and 102)

P filed for a CC 102 divorce in 12/03.

2 weeks later D (husband) accepted service & waived citation of the petition for divorce.

3/04 P (wife) filed a rule to terminate the CP regime alleging that she & D (husband)
had been living separate & apart w/o reconciliation since filing of the original petition in
12/03.

D (husband) accepted service & waived citation of the rule to terminate the CP 1 &
months later.

In 3/04, P (wife) filed motions to dismiss her previously filed CC 102 divorce petition, &
to dismiss her rule to terminate CP due to a period of reconciliation of the parties.

Tr ct rendered judgment in favor of P (wife) dismissing her original CC 102 petition on

basis of reconciliation.

HOLDING There was reconciliation in 2/03, therefore they didnt have the continuous
separation time required for a CC 102 divorce & thus time needs to start anew for 2 nd
divorce action
Rule:
CC 102 Divorce Test: whether the parties lived separate & apart CONTINUOUSLY for 180
days, w/o reconciliation, after service of such petition on the other party, or the signing of a
waiver of service by the other party

2/03 H returned home w/ large suitcase;

o

resumed living together;

mutually cared for their kid;

resumed sexual relationship;

went out in social settings;

H renewed his drivers license during this period w/ marital homes address UNTIL they
again separated in 3/03

Reconciliation Test: reconciliation occurs when there is a mutual intent to reestablish the
marital relationship on a PERMANENT BASIS

Motives & intentions of the parties to restore & renew the marital relationship is a
question of fact determined by judge from totality of the circs

Worry= is someone just claiming this for financial reasons (to get more CP)?

*Message= If reconcile after the filing of a prior divorce action separation period ends &
must be restarted

TERMINATION OF MARRIAGE: EXCEPTIONS/DEFENSES (chp. 8)

Reconciliation

Case: Millon v. Millon

Facts: Parties separated in 2/73. W lived in apt w/ kids.
HOLDING Reconciliation didnt occur here under the circs insofar as there was no
commencement of any marital relationship b/t H &W
Rule= while sex is strong evidence that the relationship has been resumed in the context of
reconciliation, proof of 1 act or several isolated acts of sex ISNT necessarily conclusive of
reconciliation

Reconciliation Standard Parties DIDNT intend (both parties) to reconcile their

relationship & didnt attempt to reestablish the matrimonial domicile

Discussion: H didnt indicate in any manner intended to resume the status of H

Wife did nothing to indicate that her separated status had changed

Sex circs indicated that there was no voluntary intent to reconcile

Had to use force to get her to have sex w/ him

Didnt have contact for periods of time b/t sex

*Message= sex, even more than once, wont necessarily constitute reconciliation
alone
Case: Lemoine v. Lemoine
Facts: B & H physically separated on 2/18/97, when H moved out of the marital domicile &
rented a separate apt.

On same day H filed a CC 102 petition for divorce, & procedure was followed.

On 8.25.97, 187 days after filing his petition H filed a motion for final divorce.

However, after separation the 2 went on a trip 4 times;

H stayed at martial domicile at least 4 times & had sex w/ B, & sometimes stay for
several days.

H claims that he never intended to return to the marital domicile & always kept his
clothes at his apt, bringing only the clothes he needed when he stayed w/ B.

Left all his major things at his domicile

Tr ct found that reconciliation hadnt occurred, & 180 days of separation had past, thus
divorce judgment was proper.

B claims that the tr ct incorrectly granted a divorce based on reconciliation b/c her & her
H didnt continuously live separate & apart for 180 days as required.

HOLDING

(1) CC 102 Reconciliation Standard= parties live separate & apart continuously for
180 days, w/o reconciliation after the service of such a petition on the other party, or
the signing of a waiver of service by the other party

There is no substantive difference b/t living separate & apart & failing to reconcile
under CC 102

(2) NO reconciliation, thus final divorce shall be granted

Rule= living separate & apart as required by CC 102 for the purpose of obtaining a final
divorce means that parties live apart in such a manner that those in the community are
aware of the separation
Discussion: Separation of B & H was visible to community & others were aware of it

Parties lived separate & apart for 6 months & occupied separate dwellings for the
requisite CC 102 time period

H kept all his personal belongings at his apt

Was absent for weeks from the marital domicile, & never stayed there for more than a
few nights at a time, sporadically

*Message= living separate & apart encompasses failure to reconcile, there is no

difference if prove 1, have proven the other

Wallace does like b/c it is not pure living separate and apart. Actions can
constitute a divorce but not reconciliation (guy moves to Dallas case).

Resumption of the Common Life: externally looks like the parties DONT continuously
live separate & apart

Staying over a couple times DOESNT defeat the continuously living separate &
apart, b/c externally it would look as if they were

*Wallace doesnt like this holding b/c lack of purity of living separate and apart.

Case: Tablada v. Tablada

Facts: H left matrimonial domicile on 3/1/90.

On 7/14/90 ct order Husband to pay alimony & child support; & on that evening he
asked Wife to reconcile w/ him.

She agreed but only if he met her conditions.

Cease all relations with other woman

Go to marriage conseling

Husband then returned to matrimonial domicile for 1 month.

During this time the initial separation petitions were dismissed.

H then left again & filed for separation. H now claims that the parties reconciled, prior
to this separation suit.

HOLDING Husband had no intent to reconcile, thus no reconciliation occurred

Discussion: Husband failed to meet any of the conditions W gave for reconciliation

Didnt discontinue his affair, didnt attend marriage counseling

Was cold to Wife & kids

Highly suspicious that sought reconciliation on the event of his alimony & child support
order

Only W made continuing efforts to reconcile

*Message= you CAN put a condition on reconciliation, & if that condition ISNT fulfilled
NO reconciliation will be found
Connivance
Connivance: spouse assents to or forgives the others wrong doing,

Dont have to actually participate in the wrong doing, if spouse assents to wrong doing
of the other then have a defense & divorce action is barred

Case: Schwartz v. Schwartz

Facts: H allowed his W to commit adultery, undisturbed & unprevented, thus she is entitled
to assert the defense of connivance, & thus his divorce action is barred
Q= If participate in swinging, is this adultery?

A= YES, but cant file a divorce action b/c you assented to it

Q= What if 1 spouse panicked & backed out, still barred from a divorce?

A= Still consented to swinging at 1st, thus she is still entitled to assert connivance as a
defense & his divorce action will be barred

Hickman v. Hickman
Facts: the H filed for divorce but reconciled sometime after W agreed to make the marriage
work

Testimony from the husband shows that they reconciled and lived happily for a few days
until the W left with the children

Friends testified that W was only doing this to regain custody of the children

Rule: a reconciliation induced by fraud & deceit doesnt operate as connivance

However, extended period of full reconciliation amounts as a matter of law as mutual
connivance of past faults

Even if initially actual or semi-intended deception is used, reconciliation & connivance

occurs where parties live together in full marital relations for an extended period of time

Discussion: He knew prior to resumption of marital relations that his W was planning to
trick him into so doing in order to get the kids

Talked to his atty about it, thus knew the consequences of resuming marital relations
w/ W & still did it for an extended period of time

Changed things, b/c there was NO mutual intent here & ct still found reconciliation

She didnt intend to reconcile, only did it to achieve ulterior motives

BUT, found this way by considering

(1) Time period they spent together

(2) He knew her plan, & had legal advice in re: to this, & still took the gamble

Note: In this case resumption of the common life was enough to constitute reconciliation
(*didnt need the mutual intent of both parties, as did in previous cases*)
Excuse Due to Mental Condition
Defense to Assertion of Cruel Treatment as Grounds for Fault= Mental/Psychological
Disorder [Courville]

Courville However, actions MUST be caused or induced by the disorder in order to

excused fault

Case: Courville v. Courville

Facts: H & W physically separated on 9/26/76 & have separated ever since.

At the time of separation & for some time prior W suffered from schizophrenia.

Tr ct found that H wasnt guilty of any cruel treatment towards W & he had only
struggled to protect himself, thus he couldnt be guilty of abandonment as Ws actions
towards him were sufficient cause to leave the home.

HOLDING Ws cruel actions were caused by her mental condition, therefore she cant be
held at fault for them, thus, being that both parties are legally free from fault, a separation
cant be rendered

Cannot be divorced or separated based on fault

Rule: cruelties committed by 1 spouse arent cause for a divorce or separation when such is
due to a physical/mental condition, & such conduct will be excused to the extent that it was
involuntarily induced by such condition
Discussion: W was ill for some time & her periods of depression made her aggressive to
the point where she couldnt get along w/ others [expert +lay testimony]

She was institutionalized after the separation, & after release continued to participate in
an out-patient program

Case: Seltzer v. Seltzer

Facts: W was hospitalized in the psychiatric ward, & thus claims that she should be excused
from fault in this divorce proceeding, in connection w/ the adultery claims asserted against
her, due to mental incapacity.

Tr ct held that Ws adultery wasnt caused by her mental illness.

HOLDING W failed to prove that her adultery was caused by mental illness, nor that her
judgment was clouded by the illness

Mental Illness Defense BOP on party claiming excuse due to mental illness,
who MUST prove that 1) mental defect 2) mental illness CAUSED the fault
based behavior.

Discussion: Ws mental condition was markedly improved; didnt describe the relationship
w/ psychotic qualities

Said she was seeking a relationship b/c she was lonely

She knew she was married at the time & was having an affair

Experts admitted that even a person who has psychosis would be aware that they
committed adultery

Adultery wasnt limited to an isolated incident, but repetitive

Courville v. Seltzer:

Courville her schizophrenia actually caused her cruel treatment to her H

Seltzer her mental illness didnt cause her adultery

Must prove: 1) Mental illness 2) illness CAUSED the fault based behavior.
INTERIM SPOUSAL SUPPORT [Alimony Pendente Lite]
Need and means
Case: Alexander v. Alexander
Facts: Wife claims that the trial court erred in finding that Husband shouldnt have to pay
interim spousal support as long as he pays the couples substantial CP obligations.

Husband was a sergeant in the Army. Wife & Husband had 2 kids.

Wife left Husband & moved to CA being fed up w/ Husbands uncontrollable spending
habits.

Since leaving LA, Wife & kids have lived w/ Wifes parents in CA.

HOLDING Husband wont be forced to pay interim periodic support to Wife, as long as he
continues to pay the CP considerable outstanding debts

Discussion: Purpose of interim support is to temporarily provide for the spouse who
doesnt have sufficient income for his/her maintenance & to preserve the status quo insofar
as maintenance & support

Wife had monetary help from her parents & lives w/ them for free

CP debt Husband has to pay is substantial, & hes paying these debts by himself, thus as
long as does this doesnt have to provide alimony pendente lite to Wife

*Potential Problem= may turn into an argument that you have family that can live w/, so
you should to save on interim support if spouse doesnt have the $ to pay it

If knew this wouldve affected her interim support award, may not have moved in w/
family

*Message= courts looks at ENTIRE financial picture of the parties for needs & means
analysis
Q= since courts look to entire financial picture of parties in needs & means analysis, should
we look at liquidity of the property or assets of each party in regard to interim spousal
support?

A= it depends

If property IS easily liquidated w/ interim support have to assess whether this

property was part of the dividends were gaining during marriage, or not
o

Ex: got dividends from stock owned that used to support their standard of
living

Thus, to the extent that a party CAN invest assets & thereby generate
income, that potential income SHOULD be considered

*BUT, claimant-spouse ISNT required to deplete her assets to live on

If property ISNT easily liquidated ct will look at it differently

Case: Rodriguez v. Rodriguez

Facts: Husband claims that the trial court erred in awarding Wife interim support, & if such
award is found to be proper, that it should be limited to the time period of actual physical
separation.

The interim consent judgment gave Wife the home, but Husband didnt leave the home
as agreed, but barricaded himself in the home.

During this time, Husband didnt pay many of the household expenses, including
groceries, utilities, or the phone bill, but rather paid the mortgage on the house in lieu of
child support to Wife.

Husband claimed that could only award interim support, when the parties are living
separate & apart.

HOLDING interim support for the period in which Husband barricade himself in the home
was properly awarded
Rule: Alimony Pendente Lite BOP on CLAIMANT to prove the NEED for it, by proving that
they lack sufficient income to maintain the standard of living that they enjoyed while living
w/ their spouse and other spouse has ability to pay
Discussion: Wife, alone, lacked the income to sustain a standard of living equivalent to
that while she was living w/ Husband, so had a need for it
*Message= in certain circs, can still get interim support award while not living separate &
apart, but together
Q= she got these expenses LATER, so what if someone said, you could obviously afford
these so why do you need to get this in interim support?

Dont know what she had to do to pay these expenses, she couldve had to liquidate
stuff to make these payments

*So, if make you judicial demand for interim support, you still claim shit you did pay for,
if in some way had to deplete your patrimony & can claim that needed it

CHILD CUSTODY & VISITATION

La. Civ. Code arts. 105, 131-137, 151-52; La. Rev. Stat. 9:291, 9:331-9:351,
9:355.1-355.17
A. Child Custody Standard
Miller v. Miller
Facts: Michael & Jennifer met when Jennifer was 16 & Michael was 20. They had a son
Dakota, & then got married.

A few months later had an affair & got pregnant, but got an abortion.

Then got pregnant again and had Cheyenne, who Michael was granted disavow from
after paternity test came back w/ result of 0% chance he was Cs dad.

Jennifer & Michael had a violent & tumultuous relationship.

They fought verbally & physically, & this was corroborated by testimony of Michaels
mom & Jennifers Grandma.

Jennifer left LA while Michael was at work with kids, to live with Grandma in Oklahoma.
Jennifer sent Dakota back to Michael one time & they found fleas in Dakotas hair.

Trial court found that giving custody to either Michael or Jennifer would place Dakota in
unsafe environment with a real physical danger & would be an extremely questionable
moral environment, so under CC 133 place custody w/ Michaels parents.

HOLDING Award of custody to Michaelss parents is in the best interest of the child, &
thus is proper under CC 133
Discussion: Jurisprudence allows court to place custody w/ childs grandparents w/o
grandparents petition the court for custody or being a party to the custody suit

Fact that Michael lives w/ parents, & thus would be living with Dakota doesnt negate the
fact that best interest of Dakota would be served by living with paternal grandparents.

Grandparents will have legal custody.

Dissent: no one had looked to the ability of the Grandparents.

*REMEMBER= here parents had NOT filed for divorce, they were ONLY living separate &
apart (so marriage was still intact)

HOWEVER, court still made custody award & interestingly enough to a non-parent who
werent even requesting custody

*9:291 Allows you to get into court for child support and custody before filing for divorce if
parents are living separate and apart.
Case: Creed v. Creed (requirement of nonparent BOP for custody)
Facts: Denise & Mark had 2 kids Ssheen (3) & Markus (1). Denise & Mark had marital
problems.

Denise filed for protective order seeking temporary restraining order to prevent Mark
from going near her or kids

Shortly after Mark filed for CC 102 divorce & sought custody of the 2 kids.

Denises lifestyle was unstable & to transient to provide appropriate home for the kids.

Mark physically abused them.

Kids spent time with Marks parents, who provided them with a loving & stable home.

Trial court awarded custody to Marks parents, b/c neither Mark or Denise was in a
position to give appropriate care & a stable home to the kids, & kids would suffer
substantial harm if either M or D was given custody.

HOLDING Granting custody to Denise would NOT result in substantial harm to kids, & her
unfortunate economic status & arguably marginal lifestyle arent enough to deny Denise
custody
Custody awarded to D.

It would be in best interest of the children (BIOC) to be raised in homes other than their
parents, but that alone is not enough.

Rule: Custody BOP when the custody contest is between the parent and a non parent
the on non-parent to prove that someone other than the parents shall have custody by
showing parent(s), by clear & convincing evidence, are unfit & that substantial harm
would result to kid(s) if parent(s) awarded custody.

Pretty high burden of compelling reasons by convincing proof.

*2 prong test- court MUST find BOTH

(1) Award of custody to parent(s) would be detrimental to the child or result in

substantial harm to child

(2) Award of custody to non-parent MUST sever the best interest of the child

*Important Consideration= natural parental relationship

Discussion: NO compelling reason to deprive Denise, as a natural parent, custody, b/c

there was NO substantial harm shown in presented by awarding custody to Denise

Conflicting evidence as to her economic status & moral fiber

questionable whether she dated a married man, lived with him with kids, & that
their relationship posed threat to kids

Didnt have a lot of money, so moved around with friends/family a lot, of whom
were living in open concubinage

Under care of Denise, kids were well nourished, loved, never physically abused, & were
generally well-cared for despite her having no financial support from Mark

*Shows= difficulty raised in awarding custody with a non-parent

Higher BOP & important consideration of natural parent relationship

Problem= how is the non-parent supposed to meet the requisite 2 prong BOP if theyre NOT
present in the case?!?
B. Custody Preferences
Case: Evans v. Lungrin
Facts: Donna had a daughter Lindsay.

Then married Bobby & moved to Alabama.

(P), Lindsays dad, was awarded visitation rights to visit with Lindsey for 2 hours every
other Saturday pending paternity results.

(P) & (D) stipulated to joint custody, w/ (D) as domiciliary parent, that (P) would
exercise visitation with Lindsey one week/month for 9 months & altering weeks in June,
July, & August, (P) was to pay $150/month in child support, & that either party would
give the other 60 days prior notice of any change in residence. (D) moved to the WA,
w/o giving (P) notice as stipulated.

(P) filed rule seeking sole custody of Lindsey.

(D) is capable of caring for Lindsey on full-time basis.

(P) feed, bathe, & put Lindsey to sleep himself; his home, where lives w/ his parents, is
clean & well kept.

BUT, after visits with (P) Lindsey would have temper tantrums & excessively cling to her
mom, expert psychotherapist said that this was a normal reaction out of a child
Lindseys age & isnt good for her.

App. Ct named (D) as domiciliary parent.

(P) claims, under La. R.S. 9:335, that because trial court awarded joint custody it is
improper to designate a domiciliary parent when there is no parent w/ whom the child
primarily resides.

HOLDING Under the circumstances presented, joint custody isnt in Lindseys best
interest, so remand to trial court to determine which parent should be the designated
domiciliary parent

In order for (P) to get sole custody, he would have to prove by clear and convincing
evidence that it is in the BIOC.

Rule: Material Change of Circs BOP when the original custody decree is a stipulated
judgment, the party seeking modification thereof MUST prove, by clear & convincing
evidence

(1) There has been a material change of circs since the original custody decree was
entered, &

(2) The proposed modification is in the best interest of the child

**More important prong of the test**

Discussion: P only met #1 of BOP (custody was stipulated)

(1) Ds relocating her & L to WA = material change in circs, because move made the
original decree unworkable

(2) FAILED to meet this prong though

Removal of parent from LA SHOULDNT, of itself, constitute sufficient reason to

terminate custody arrangement

Trial courts award of 4 month alternating split physical custody b/t P & D ISNT
in best interest of L
o

Expert testified that deprives child of Ls age of sense of stability & L at

this age is in dire need of predictability, routine, & consistency; & too far
of a distance b/t LA & WA & could be deleterious to L

Both parents are able to care for Lindsey & have genuine concern for Lindseys needs,
well-being & upbringing

*LA Supreme Court view of the custody analysis

(P) didnt have to meet higher Bergeron standard, but lower material change of circs
BOP b/c this WASNT a considered decree, BUT WAS a consent decree

*Ct said La. R.S. 9:335 is ONLY applicable if joint custody HAS been decreed
Material change in circumstances
Case: Ledet v. Ledet
Facts: (P) & (D) had 2 kids Amy (16) & Mark (9).

P acted violently towards kids on numerous occasions, smoked weed in front of kids,
abuses alcohol & smoked cigs in front of M who was asthmatic.

Trial court found that D wasnt violent towards kids nor sexually abused them, & thus
awarded custody of them to D, w/ visitation for P.

P claims trial court erred in awarded D custody, b/c this isnt in the best interest of the
kids

Rule: The primary concern is the best interest of the child

The determination of what is best for the child is in full discretion of the trial court
HOLDING Awarded custody to D, conditioned upon that he lived w/ his sister & receive
counseling (Custody can be conditional), & gave P visitation rights
Discussion: Evidence of Ds mishaps didnt have merit and was circumstantial at best

Kids' testimony denied that D was sexually or physically abusive

Nature of the family here was deeply troubling to the court, thus recommended (D)
receive counseling

Court, if facts presented are contradictory & cant really discern who would be better parent,
COULD

(1) Order a custody evaluation of the parents by an expert

(2) Speak to children, if of age to get insight (here was 16, so could)

(3) Hear both sides of the story from both parties

Case: Schaeffer v. Schaeffer

Facts: Jennifer & Thad were parents of Kyle (3). Jennifer & Kyle lived w/ Jennifers parents.

Jennifer had substance abuse issues, Jennifer & her parents used & abused drugs.

Trial court made joint custody award, designated Thad as domiciliary parent, & gave
Jennifer specific periods of physical custody.

HOLDING Joint custody with Thad as primary domiciliary parent & Jennifer having
specified periods of physical custody was in Ks best interest

Rule: *Non-domiciliary parent SHOULD be assured of frequent & continuing

contact w/ child

Substantial time rather than strict equality of time is mandated in legislative scheme for
joint custody

Custodial arrangement here is sufficient to afford Jennifer substantial time as well as

frequent & continuing contact with her child

Discussion: There was negative & conflicting testimony on both parents fitness, lifestyles,
& personal histories

The evidence overwhelmingly shows that the trial court made the correct decision

Jennifers Best Argument is in the BIOC b/c child is so young needs mother care

La R.S. 9: supports b/c custody should be shared b/t the parents EQUALLY

La. R.S. 9: supports b/c both parents need frequent & continuing relationship w/ child

*REMEMBER= raise these statutes as a custody agreement even when circs indicate one
parent shouldnt be awarded custody
CC 133- if an award of joint custody or of sole custody to either parent would result in
substantial harm to the child the ct SHALL award custody to [*NON-parent*]

(1) Another person w/ whom the child has been living in a wholesome & stable
environment, OR

(2) Any person able to provide an adequate & stable environment

*REMEMBER= Parents have a PARAMOUNT right & interest in custody of child

Thus subject to high substantial harm BOP (*NOT BOIC standard*)

*Non-parent seeking custody has this BOP

C. Visitation Rights
Case: Wood v. Wood
Facts: William & Lachelle entered into a consent judgment that stipulated for joint custody,
designated W as domiciliary parent, & aware visitation once a week to paternal
grandparents.

Lachelle filed rule to change joint custody arrangement b/c had become detrimental to
kid b/c William had recent criminal history of sexual abuse & was incarcerated.

Trial court awarded Lachelle sole custody & limited grandparents visit & ordered that
they not allow William to have contact w/ kid.

Grandparents sought to modify award.

Lachelle filed rule for contempt b/c grandparents allowed kid to contact William over
phone during visits & planned a visit b/t them.

Lachelle & grandparents entered into a stipulated judgment where Lachelle had sole
custody & grandparents got 1 weekend/month visitation, & 1 Sunday/month, & 1 day &
night on major holidays.

Grandparents filed rule that Lachelle refused to comply w/ stipulated judgment, &
wanted to specify a meeting place for exchange on visitation.

Trial court granted GPs request for modification; placed BOP on Lachelle to show that
summer vacations w/ GPs would be detriment; & granted summer vacation visits b/c
Lachelle failed to meet her BOP.

HOLDING Held for the Lachelle, right of Grandparents are secondary to rights of the
mother.

BOP is on GPs, & showing simple disagreement over amount of visitation DOESNT
outweigh the rights of Lachelle (mother) to decide what is in the BIOC

Rule: Galjour BOP on NON-parent to show the requested visitation is BOTH

(1) Reasonable (i.e.- is this too much time?)

(2) In the best interest of the children

*REMEMBER= When there is SOLE custody to one parent, other parent doesnt have
decision-making authority AT ALL
*REMEMBER= Person w/ visitation HAS NO decision-making authority at all
*Message= Non-parent visitation standard BOP is on the NON-parent claimant, not parent,
that would be in BIOC

*BIOC Presumption= if parent is involved, parent acted in BIOC

*Court MUST consider this & give special weight to parents determination of
BIOC*

Case: Barry v. McDaniel

Facts: Bryan & RitaAne had 1 kid, Madelyn.

R died & her parents filed petition for visitation under La. R.S. 9:344(A).

Trial court award GPs visitation.

Bryan filed motion to terminate GPs visitation until they underwent mental evaluation,
claiming their behavior posed a threat to Ms well being.

Grandparents filed rule for contempt alleging B denied visitation.

Bryans new wife subsequently adopted Madelyn.

Trial court held that La. R.S. 9:344 = CON, found Bryan in contempt, & awarded
Grandparents visitation 1 weekend/month & 1 week/summer.

HOLDING Grandparents visitation award was proper under La. R.S. 9:344, in light of
positive influence Grandparents would be on Madelyn & deference given to Bryans role as
parent

Trial court held Grandparents rights ancillary to that of wifes (RitaAne)

*Parents wishes were given much deference when it came to when kid was w/
Grandparents (always have phone #; know where going; put in car seat; call kid
by certain name only; etc.)

Discussion: Presented a reasonable basis for awarding visitation

Only connection to Madelyns birth mom; had as much desire to protect Madelyn as
Bryan did; & psychologist recommend continued visitation w/ Grandparents

Q= What is the difference b/t Barry & Wood?

A= This case didnt deny Grandparents time w/ child, like Wood case, b/c mom DIED
here, wasnt just incarcerated

Wont ever be able to see mom, so had to know her some way

Maybe, also Grandparents here didnt ask for much more visitation time

Rule: Standard applicable here= (1) BIOC + (2) requested visitation is reasonable

*DONT have to show extraordinary circs under the facts presented b/c parent died
under La. R.S. 9:344(A)

note and dissent:

* Outcome differs here b/c mother was dead.

But, dissent thinks this is dangerously close

to infringing on parents constitutional right to make decisions for child.

Seems that Judge Whipple thinks that because the grandparents disregarded the
parents wishes that it almost makes the trial judge required to terminate the
grandparents visitation rights

D. Change in Custody & Relocation of Parent

Case: McCorvey v. McCorvey
Facts: W & H had 1 kid D. Parents were awarded joint custody in divorce, & entered
agreement that W was domiciliary parent, & on alternating weeks H had D for 1 st 3 nights,
then 4 nights.

W & H both remarried.

H made comments to D that wanted her to be a dark-skinned black woman & wouldnt
let her play w/ white dolls; watched porn & listened to sexually explicit music in front
of D (she started singing it in public); & argued aggressively w/ Ws new H.

W offered expert testimony of 2 psychologist who said Hs misconduct was harmful to D

& that kid of Ds age needed to have single home which spent a majority of time at.

W filed motion to modify custody award to reduce Hs custody of D.

District court granted Ws request & app ct affirmed.

HOLDING W only had to prove that proposed alternative custody arrangement was in
kids best interest, & she met that BOP through the evidence she produced at tr, thus
modification of custody award reducing Hs time w/ D was proper

Original custody was NOT based on a considered decree, thus W didnt need to meet the
heightened Bergeron BOP to modify custody award

Was a stipulated agreement b/t W & H

*REMEMBER= W DIDNT have to prove that it was deleterious b/c it involved a CONSENT
AGREEMENT
*ONLY had to prove material change in circs. and that modification was in the BIOC
No hearing was ever had
Case: Bergeron v. Bergeron
Facts: D was awarded sole custody of her & Ps kid in divorce judgment.

D was a dentist in Shreveport. P lived in Jefferson Parish.

W/o Ds knowledge her new H arranged w/ P to send T to him for 1 week.

D protested upon finding out Tr ct held that P wasnt required to show that a material
change in circs occurred that affected kids well being, only needed to show that was in
kids best interest to modify custody award & gave P custody for 9 months/yr.

HOLDING P didnt meet his requisite BOP, under the facts presented, thus the tr ct
improperly modified the original custody decree
Rule: Bergeron BOP when original custody award seeking to be modify is a
considered decree moving party MUST show that there was a change in circs that
materially affected the welfare of the kid before can consider making a significant
changed in the custody order
Discussion: None of the events proved by P, w/o additional evidence, meet this BOP (Ps
improper retention of T in violation of custody order; & mothers divorce, remarriage &
granting of custody of other 2 kids)

D didnt intend to surrender custody permanently, b/c all her actions b4 & after show to
the contrary & that desired to remain primary custodian

Ps testimony isnt credible admitted D said wanted to remain primary custodian; other
testimony about exchanges w/ D were sketchy & unconvincing; & his petition asserted
that he unlawfully retained T over objections of D while he sought to change custody

*Set standard for change of custody when a CUSTODY HEARING IS HAD

KNOW THIS STANDARD & HOW TO APPLY IT

Look for would change in circs outweigh its advantages in changing custody? Would it
be deleterious to kid?

Relocation
Case: Curole v. Curole
Facts: G.C. & M.C. are parents of N (6) & E (2).

G & M had bad relationship & often physically fought.

G & M entered a consent judgment under which they shared joint custody; G was
domiciliary parent; & M was entitled visitation w/ kids every weekend.

G notified M that she wished to relocate to OH, b/c would get an equity in a family
owned business there & make $50Gs/yr, would provide better environment for kids.

M filed timely objection to such, believing that G only choose to do this to encourage N
to resist visitation w/ M.

Trial court found G didnt met her BOP in proving her relocation under La. R.S. 9:355.1,
b/c didnt meet 2nd prong & thus denied the proposed relocation.

App ct said she did & granted relocation.

Rule: Factors to consider w/ relocation & whether in BIOC: 12 facts

HOLDING Under La. R.S. 9:355.12, proposed relocation ISNT in BIOC so denied it
(A) Sought proposed relocation in Good Faith

Permanence of sought after employment; desired to be long term residence; & desire to
move didnt stem from getting kids & herself away from M

(B) WASNT in BIOC though

(2) AGAINST psychologist said that kids should have frequent visits w/ both & living
away from M will almost certainly injury their relationship w/ M

(3) AGAINST preserving relationship w/ M & kids was too remote if relocation
allowed

(4) IRRELEVANT kids too young for preferences to be considered

(5) AGAINST Gs previous actions militated against relocation (encouraged

transitions b/t parents to be an ordeal & her influence was direct cause of transition
problems)

(6) FAVORS relocation would enhance kids & Gs quality of life

(7) AGAINST benefits of relocation are outweighed by the long-term detrimental

effects on the relationship b/t the kids & M

Ct not supposed to consider whether mom will relocate without the kids.

Case: Payne v. Payne

Facts: T & R had 1 kid E. R had 2 affairs.

T received judgment designating her as domiciliary parent under a joint custody plan, &
R was awarded alternating weekend visitation + certain weekend visitation.

T offered evidence of Rs illegal use of steroids & sought a TRO.

T filed motion to move to MS to accept a job that would increase her income 20%.

Rs financial situation was headed towards bankruptcy & would eventually force T & E to
move from family home.

T was also willing to modify custody agreement to give R substantially the same time w/
E, if allowed to relocated.

Trial court found T didnt meet her BOP that relocation was in BIOC, & denied relocation
insomuch as several aspects of Es life, such as school, church & dance were rooted in
LA.

Rule: Factors to consider w/ relocation & whether in BIOC [La. R.S. 9:355.12]
HOLDING Relocation to MS in BIOC & Ts request was made in GF, motion granted
(1) Request was made in GF
Desired to move for both emotional & financial reasons; & to be near her parents
(2) WAS in BIOC

(1) FAVORS Ts life revolved around E, & R had outside interest that distracted him
from family life

R not really involved; on steroids; & had affairs

(2) FAVORS E wasnt so invested in any school/activity that relocation would cause a
detrimental impact on her development

Tr ct placed too much weight on factors of school & activity ties for such a young
child

(3) FAVORS Distance b/t MS & R wasnt too much so that would affect Rs
relationship w/ E

R, while dating T, made trip to MS every weekend

(4) IRRELVANT E is too young

(5) FAVORS T indicated strong willingness to continue to facilitate the

father/daughter relationship

(6 & 8) FAVORS Move would present T & E w/ many opportunities

(11) FAVORS R used steroids while E was in his house

CHILD SUPPORT
Guillot v. Munn

Issue: whether the amount of time the child spends with the non domiciliary parent
constitutes a deviation from the amount of child support paid by the non domiciliary parent
to the domiciliary?

The argument was that the money that was given to the domiciliary parent was
not in the best interest of the child because the non domiciliary parent needed it
for when the child was in their care

Rule: La. R.S. 9:315.8(E) gives the ct discretion in determining whether to allow a
deviation in a SHARED custody situation when the non-domiciliary parent has the child for
an extraordinary amount of time per yr, & can adjust amount of child support paid during
the period of time that the child spends w/ non-domiciliary parent
-

In this case, non-domiciliary parents increased time w/ child increases her direct childrelated expenses

BUT this doesnt mean that domiciliary parents expenses are necessarily decreased, just
that there is an increase in the total amount of expenditures made on the kid, due to
redundant costs of fixed expenses that BOTH parents must pay (i.e.- housing, utilities,
bedroom, & toys)

*TEST= Deviation from guidelines 3 part test for La. R.S. 9:315.8,
MUST DETERMINE that

(1) Situation is a SHARED custody situation (i.e- extraordinary visitation warrants

deviation)

(2) Extraordinary amount of visitation time w/ non-domiciliary parent results in a

increased financial burden on that parent + a decreased financial burden on
domiciliary parent
o

Difficult burden= proving DECREASED financial burden on domiciliary parent

(3) The application of the guidelines

o

(a) WOULDNT be in BIOC, OR

(b) WOULD be inequitable to the parties

*This ct added this prong

Extraordinary visitation
Walden v. Walden
Facts: H & W had 2 kids of their marriage.
-

There was a provisional plan granting H at least 4 days/month w/ his kids, & W agreed
to remain flexible, allowing H any additional days that his rotating schedule would allow.

H was ordered to pay W child support of $1,591/month.

Although H had requested that the ct not use his overtime earnings in calculating his
gross income, they did.

Ct established that Hs monthly gross income was $6,211 & Ws was $7,486.
The ct then added to the basic support obligation, $279 for child care cost & $213 for
private school tuition per month.

Subsequently, H accepted a promotion, & though his hourly rate increased, his salary
was reduced to $4.2Gs/month due to fact that he was no longer working overtime.

Tr ct found as a fact that H was voluntarily underemployed, & denied his request for a
reduction in child support.

H claims that tr ct shouldve deviated from the child support guidelines as the amount of
the award is larger than necessary to care for 2 small kids, & that the award should at
least be offset by the amount of time the kids spend in his care & custody.

HOLDING Basically, by including his overtime pay the tr ct. judicially mandated long-term
overtime, which under these circs would be inequitable, thus tr ct erred when it considered
Hs potential, rather than actual income
-

Overtime included when required by job, not if voluntary.

Rules:
La. R.S. 9:315.2(B) & 315.9 if a parent is voluntarily underemployed, child support
shall be calculated based on his earning POTENTIAL (NOT actual income)
*BUT consider 9:315(4)(d)(iii)
La. R.S. 9:315(4)(d)(iii) - extraordinary overtime SHOULDNT be included if the
inclusion would be inequitable
-

H only worked overtime while married for a goal, once divorce was no longer working
towards some "family goals"

H has ordinary full-time job & got a promotion, but overtime availability wasnt as
extensive as was b4

*Message= dont include extraordinary work (overtime) in gross income in determining &
calculating child support award, UNLESS it is necessary and equitable
Williams v. Williams
Facts: H & W had 1 kid.

Ct awarded joint custody to both parents, tr ct ordered W as domiciliary parent, &

ordered H to pay $491/month ($364 for tuition) in child support.

H seeks to reverse part of judgment ordering him to pay portion of child support for
private school tuition.

HOLDING Since tuition is required for kid to continue at private school, dist ct didnt
abuse its discretion by including it in the child support award

H failed to meet BOP of showing private school for kid WASNT in BIOC, so Ws decision
on this will be upheld

W, as domiciliary parent, chose to send to private school so her decision gets

presumption that is in BIOC

Rule: La. R.S. 9:315.6- by agreement of the parties or order of the ct, the following
expenses incurred on behalf of kid may be added to the basis child support obligation
(1) Any expenses for attending special/private school
-

Corley parties agree that kid will attend private school, tr ct can add to child
support award

Kelly it is in the BIOC to continue attending private school if the child had
attended private school for yrs

Kid here attended private school all her life

Financing for this was priority of both parents during marriage

H didnt prove that putting her in public school, at this point in her schooling, was
in BIOC

(2) Any expenses for transportation of kid(s) from one party to other
*Shows= decision to send kid to private school is a different issue than the issue of whether
private school will be included in a child support award
Janney v. Janney
Facts: H & W had 1 kid.

Parties' stipulation, which was entered into in judgment, awarded parents joint custody,
designated W as domiciliary parent, H was awarded visitation every other week Th-M, &
set child support of $1.2Gs/month to be paid by H.

Ct gave written reasons of method used to reach Hs gross income; detailed method
used under custody stipulation to calculate the actual amount of days H had kid to find
that he had her 45.3% of yr & render arrangement a joint custody arrangement.

Yr later parties entered stipulation, which was entered into judgment, reducing child
support to $700/month & provided sharing 50/50 of school & med expenses.

Then tr ct ruled that this was a SHARED custody situation, thus reduced Ws child
support payments to $62/month b/c worksheet B was used.

W claims that

(1) tr ct erred in finding this was a shared custody arrangement & further
calculating support under these provisions; &

(2) erred in failing to include Hs retained corp earnings & s/h loans of his 3
businesses.

HOLDING NO abuse of discretion in saying was a shared custody arrangement, b/c each
parent had kid for approximately equal amounts of time
Rule: Shared Custody: [La. R.S. 9:315.9] a joint custody order in which each parent has
physical custody for approximately equal amount of time
1. Tr ct has discretion as to whether is approximately equal amount of time in deciding
whether is shared custody
Discussion: Here, H had for 45.3% of yr, so met the standard

Being that had kid for approximately = amounts of time there were redundant cost for
kid that ct factored into award of $62/month

*Shows= 45.3% of a yr in physical custody = approximately equal amount of time to

warrant classifying situation as a SHARED custody situation

Q= What about 40% of the yr? Would you apply Worksheet B in calculating child
support [actual SHARED custody situation]? Or apply Worksheet A?
A= Draw line at Janney, 40% not enough so apply worksheet A
o

BUT, argue that 40% is significant enough to warrant

extraordinary vistation to warrant an adjustment in child support
award under La. R.S. 9:315.2 & Guillot case
a. 40% is more than 73 days

*Another case used in this case stated 30% was shared custody. Wallace doesnt like.
48, 49% should be shared custody.

Modification of Child Support Award

Stogner v. Stogner [change of support]
Facts: H & W had 2 kids.

Tr ct, by stipulation of the parties, awarded joint custody, designated W as domiciliary

parent, & H was to pay $400/month in child support.

2 yrs later W filed for increase due to change in circs.

Tr ct held that although the original child support was set in complete disregard for the
guidelines, it was done pursuant to agreement b/t the parties, & since W couldnt show a
change in circs it would deny Ws motion for increase in child support.

HOLDING Pursuant to La. R.S. 9:315.1(A) & (D), tr ct shouldve considered the guidelines
& reviewed the adequacy of the stipulated amount before entering it into judgment, &
further shouldve give oral or written reasoning for warranting the deviation from the
guidelines provided by La. R.S. 9:315.1(B)

Rule: La. R.S. 9:315.1(D)- The ct MAY review and approve a stipulation b/t the parties
entered into after the effective date of this Part as to the amount of child support to be
paid. If the ct DOES review the stipulation, the ct SHALL consider the guidelines set forth to
review the adequacy of the stipulated amount

May review & approve the stipulation means that although the parents may present a
stipulation for consideration, the tr ct isnt bound to follow it & may choose to use
guidelines instead

If the ct does review the stipulation means that if tr ct doesnt reject stipulation it
SHALL consider the guidelines, to review the adequacy of the stipulated amount

Tr ct, here, didnt do this, & didnt give reasoning for deviation from guidelines

Guidelines were enacted for 2 reasons

(1) To address inconsistency in amount of child support awards

(2) As an appropriate solution to the inadequacy of these awards

Thus, are intended to fairly apportion b/t the parents the mutual financial obligation they
owe their kids under CC 227, in an efficient, consistent, & adequate manner

Waiver of child support

Dubroc v. Dubroc
Facts: Tr ct gave H & W custody of 2 kids to W, & ordered H to pay $250/month in child
support.

Later W didnt want custody of her son, so agreed to take a 50% reduction in child
support if H would take custody of him.

However, didnt go to tr to make such reduction.

W brought this action seeking to recover past due child support which she was entitled
by original judgment.

Tr ct found in favor of her, & ordered H to pay past due amount of $4.5Gs.

App ct held that since parties orally agreed, the agreement was more than Ws mere
acquiescence to reduction, was bilateral, & H was due credit for the $4.5Gs.

HOLDING Parties mutually agreed to the reduction, & since the reduction doesnt
interrupt the childs maintenance or upbringing or isnt contrary to BIOC (not to kids
detriment), agreement = enforceable

Nothing in arrangement affected welfare of kids, & in fact new custody arrangement was
in BIOC, b/c W wasnt capable of caring for her son

Halcomb a party CANT unilaterally reduce his child support payments; & other partys
mere acquiescence in failure to pay full amount doesnt amount to a waiver

W, here, voluntarily assented (more than mere acquiescence), & was a bilateral
agreement

*REMEMBER= if have a child support award judgment, it is bad idea to agree to a

modification out of ct & not have it confirmed by ct b/c spouse will have a legally
enforceable judgment to entitle them to past due child support if fits Halcomb scenario
[unilateral decision + mere acquiescence]

HOWEVER, under facts presented here, mutual agreement was given

*Wallace says always go back and to court and stipulate.

BIOLOGICAL FILIATION
The Paternity Presumptions
Smith v. Smith D is the legal father, but not biological father of C.

P served child support petition on D in 95.

D admitted that though was in jail, learned that P was pregnant when she told him she
was divorcing him while he was in jail in 92.

HOLDING D failed to timely bring a disavowal action, thus P has right to assert a claim
for child support against him
Rule: CC 189 must file disavow w/in 180 days after H learned of birth or shouldve
D learned about Cs birth in 92, but took no action to disavow until 95, thus his action is
untimely
*Message= MUST file disavow w/in 1 yr prescriptive period IMMEDIATELY after H learned
of birth or shouldve
TODAY this case wouldnt be decided the same, so 1 yr prescriptive period from
knowledge of birth past wouldnt apply, b/c would fit the exception
EXCEPTION= living separate & apart living & notice during the 300 days b/f the birth of
the child. Get 1 yr from written notice to disavowal.
Succession of Cosse Decedent (C) & Q divorced in 1899.

At time divorce was filed they were living separate & apart, & Q was living w/ D in open
concubinage while divorce was pending, & sometime after divorce judgment was
entered.

During this time she had 3 kids prior to finalization of her divorce from C.

V was born on 2/20/1900, less than 300 days after C was granted final judgment of
divorce. C died in 1933.

Tr ct held that V was a surviving heir & child of C, & thus was entitled to be place in
possession of all Cs succession.

HOLDING The paternity presumption under CC 189 may be refuted by sufficient evidence
that the legal father isnt the biological father where evidence supports such, & thus will
enable the biological child to bring a WD or survival action on b of their biological parent;
evidence was sufficient to rebut here so V is entitled to his portion of Cs succession

Cts no longer apply the presumption of paternity strictly when the facts reveal that
application of the presumption would result in an injustice

Gnagie 1 having NO biological relationship & no personal relationship to the deceased

other than the fictional position of legal father shouldnt be permitted to obtain a
monetary award b/c of death

*Message=

(1) Presumption shouldnt apply when [Gnagie] 1 having NO biological relationship & on
personal relationship to the deceased other than the fictional position of legal father
shouldnt be permitted to obtain a monetary award b/c of death b/c would permit an
INJUSTICE

(2) If dont know about the birth of kids, then prescription DOESNT begin to run (need
to have knowledge or shouldve had knowledge of birth)

DONT need Gnagie injustice argument though if this applies

Difference b/t Gnagie & Smith different policies considerations at play w/ the
paternity presumptions

Smith child seeking child support

Gnagie dad seeking to profit from death of child
*Some play that application of presumption will not be allowed if causes inequity. Should
not be able to use presumption foe financial gain only.
Smith v. Cole [dual paternity] P married H & had 2 sons, HN & DR. In 74 they
physically separated, & P began living in concubinage w/ D.

A child DN was born in 75, approximately 1 yr after P & D began living together.

Birth certificate named H as DNs father.

P & H werent divorced until 78.

However, divorce petition declared that P & H only had 2 kids of their marriage, HN &
DR.

App ct held that children are allowed to establish their true parentage even though they
are filiated w/ another legally, thus re:less of the legal fathers duty of support, the
biological father, here D, also has financial responsibility for his progeny.

HOLDING There is a presumption that the H of the mom is the legal father of her child,
however LA law also recognizes the right of a child to establish his biological paternity, &
such filiation to 1s biological father doesnt basterdize the child or otherwise affect the
childs legitimacy status to his legal father. Dual paternity.

Hs failure to disavow paternity doesnt preclude D from bringing an avowal action, & it
would be unjust to construe the presumption as to provide D w/ a safe harbor from child
support obligations

It is in DNs best interest to recognize her biological tie to D

Legal tie of paternity wont be affected by subsequent proof of the childs actual
biological tie

CC 184 wasnt intended to shield biological fathers from their support obligations

Biological fathers are civilly obligated for the support of their offspring

*Message= LA allows child &/or father to establish paternity to a child, even in light of a
legal father (dual paternity)
Difference b/t child establishing paternity & dad establishing paternity
State v. Johnson P claims that D had sexual relationship w/ H, which led to birth of M as
part of its child support petition.

Order for blood test was made, & it concluded that there was a high likelihood that D
was Ms dad by probability percentage of 99.9996%.

HOLDING
(1) The rebuttable presumption of La. R.S. 9:397.3 is procedural in nature, & thus may be
applied retroactively (thus, applies to this case)

La. R.S. 9:397.3 BOP & Presumption upon the introduction of a blood test showing
the alleged father to have a 99.90% or < probability of paternity, it is presumed that he
is the dad & the burden shifts to him to rebut the presumption. Will be very difficult to
do.

(2) P met preponderance standard in proving D was biological dad of M

Rule= Scientific evidence of paternity ALONE sufficient, however provides persuasive &
objective evidence that can help establish paternity to a preponderance standard

DNA test established that was a 99.9996% chance D was the biological dad of M

H arranged to meet D at his house to have sex, to see which of the 2 were better in bed

After arranging this, she called her friend & told her what she was going to do

*Message= the rebuttable presumption under La. R.S. 9:397.3 is applied retroactively

*Shows= DNA tests arent really as reliable as you think, thats why need 99.9% or <
probability to apply the paternity presumption

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