Jenkins v. Jenkins - 38873 ( La. App. 2 Cir 09/22/04), 882 So. 2d 705

Rule:

For purposes of spousal support in a divorce, legal fault may include, among other actions, habitual intemperance or excesses, cruel treatment or outrages, and abandonment. 

Facts:

The wife moved out of the matrimonial domicile, and she had no plans to return. The wife alleged in her petition and testified at trial that the cause of the physical separation and divorce was the husband's excessive drinking, which she said led to physical and verbal abuse directed at her. On one occasion, she said he grabbed her hair and twisted her arm behind her back when she tried to walk away from him after they had been arguing about alcohol. The husband denied that he drank excessively or ever abused the wife. The wife petitioned for interim and permanent spousal support. Divorce was granted on December 12, 2002, while issues regarding a claim for past due interim support and permanent support were still pending. After trial on these issues, the court awarded the wife $ 700 per month permanent support, but denied her motion for past due interim support. The husband appeals the judgment awarding the wife permanent support and the amount of support. The wife answers the appeal, seeking an increased award and past due interim support.

Issue:

Did the trial court err in finding that the wife was without fault in the dissolution of the marriage and that she was entitled to spousal support?

Answer:

No.

Conclusion:

The appellate court found that the wife’s testimony supported a finding that the husband underwent a personality change when he drank. Additionally, the appellate court found that the husband's habitual, excessive consumption of alcohol followed by his use of abusive language toward his wife seemed calculated to utterly destroy her peace of mind and happiness rendering the marriage unsupportable. Thus, the trial court did not err in finding that the wife was without fault in the dissolution of the marriage and that she was entitled to spousal support. Because the trial court did not abuse its discretion in determining the amount of the award, the award would not be disturbed on appeal.