Cardinale v. Cardinale

397 So. 2d 54

 

RULE:

A charge of adultery intended to serve as a basis for a judgment of divorce is not of itself a defamation such as would entitle a party to a separation, even though the party failed to sustain his or her allegations by proof.

FACTS:

Plaintiff husband filed for divorce on the grounds of adultery. The trial court denied the husband's motion for a continuance in the absence of his private investigators and rejected his demands for a divorce because he failed to prove adultery. Defendant wife appealed the conclusion that she could not use the adultery allegation in the divorce petition as a basis for a separation under La. Civ. Code Ann. art. 138(4) on the grounds of public defamation.

ISSUE:

If an accusation is not wanton or malicious, although unfounded in point of fact, can it be said that there was a public defamation?

ANSWER:

No.

CONCLUSION:

The court affirmed, at the wife's cost, the denial of her demand for a separation from the husband. The court held that the trial court's conclusion was supported adequately by the fact that the husband was forced to trial without having his investigators available to testify and that the wife admitted staying with another man at a bar for some time before he took her back to her apartment on the night of the alleged adultery. The court held that the failure of the husband's attorney, before trial, to subpoena the investigators to testify that the man stayed in her apartment with the lights out did not establish that the husband made his adultery allegations with malice. A charge of adultery intended to serve as a basis for a judgment of divorce is not of itself a defamation such as would entitle a party to a separation, even though the party failed to sustain his or her allegations by proof. If the accusation be not wanton or malicious, although unfounded in point of fact, it cannot, with propriety, be said that there was a public defamation.

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