Bennett v. Bennett - 349 So. 2d 909 (La. Ct. App. 1977)

Rule:

To prove adultery, the circumstantial evidence must be so strong that no other reasonable conclusion can be drawn. La. Civ. Code Ann. art. 160 provides that when the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when: the wife obtains a divorce; the husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or the husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.

Facts:

Defendant husband Elmer F. Bennett obtained a judgment of separation against plaintiff wife Phyllis Ann Hollibaugh Bennett in 1974, on the ground of habitual intemperance. Subsequently, defendant began dating, he and his date admitted taking trips together, occupying one room overnight in hotels and motels. Defendant and his date denied having any sexual intercourse. Plaintiff filed an action for divorce on the grounds of adultery. Defendant reconvened, seeking a divorce based on living separate and apart for one year without reconciliation after a judgment of separation. The lower court dismissed the plaintiff’s demand and granted judgment in favor of defendant on his reconventional demand. Plaintiff sought review.

Issue:

Did the trial court err in holding defendant not guilty of adultery?

Answer:

Yes.

Conclusion:

The court reversed the judgment and rendered in favor of plaintiff granting her an absolute divorce. The court held that the lower court judge was manifestly erroneous in accepting the self-serving testimony of the defendant and his date, rather than the overwhelming circumstantial evidence to the contrary. Thus, the court concluded that the divorce should have been awarded to plaintiff on the grounds of adultery. The court also determined that, under La. Civ. Code Ann. art. 160, plaintiff was precluded from obtaining post-divorce alimony because she had been found at fault in the separation.