Menge v. Menge - 491 So. 2d 700 (La. Ct. App. 1986)

Rule:

The Louisiana Supreme Court approached a definition of adultery when it stated: 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. Thus, the commission of oral sex constitutes adultery within the meaning of La. Civ. Code Ann. art. 139.

Facts:

Plaintiff-appellee Danny Menge filed a petition for divorce alleging that defendant Diana Caronia, was guilty of adultery, he also requested the custody of their minor daughter. For her part, defendant filed an answer and reconventional demand, alleging that she was entitled to a separation based on cruel treatment and abandonment. At trial, defendant admitted that she had engaged in certain enumerated sexual activities including oral sex, with an individual who was not her husband. However, she maintained that because she did not engage in sexual intercourse, her conduct did not constitute adultery. The court granted plaintiff’s petition for divorce and found defendant guilty of adultery and at fault. The custody of the child was also granted to plaintiff. On appeal, defendant sought to distinguish between the acts to which she admitted and sexual intercourse, averring that her actions did not constitute adultery. Thus, she argued that there was insufficient evidence to find her guilty of adultery.

Issue:

Did the court err in granting plaintiff’s petition for divorce on the ground of adultery?

Answer:

No.

Conclusion:

The court affirmed the judgment and held that the commission of oral sex constituted adultery within the meaning of La. Civ. Code Ann. art. 139. The court further found that the trial court's conclusion that defendant also engaged in coitus was justified. Thus, the court ruled that defendant’s direct admissions gave probative and corroborative value to the statements made by the private detectives who were conducting surveillance of her activities. The court also ruled that the evidence from the detectives showed that the defendant’s assignations occurred before plaintiff left the matrimonial domicile. As such, the court concluded that there was no evidence to support defendant’s reconventional demand. Hence, it was dismissed.