Jenkins v. Jenkins
882 So.2d 705 (Ct. App. Louisiana 2004)

Facts:

  • Frank Jenkins and Brenda Eldridge were married on September 16, 1983 – his fourth and her first.
  • On March 21, 2002, Brenda moved out (for a second time) and filed for divorce on April 15, 2002.
  • Brenda alleged in her petition and testified at trial that the cause of the physical separation and divorce was Frank’s excessive drinking, which she said led to physical and verbal abuse directed at her.

History:
The trial judgment found that Brenda was without fault in the divorce and awarded her permanent periodic spousal support in the amount of $700 per month.

  • Frank contended that the trial court erred in finding that Brenda was free from fault. He alleged that Brenda abandoned him in March of 2002 when she moved out of the matrimonial domicile without lawful cause and refused to return.
    • Abandonment was a ground for separation and still constitutes legal fault for the purpose of preclusion of a party from permanent spousal support,

Issue:
The sole question regarding the issue of abandonment is whether Brenda had lawful cause for leaving.

Holding:
Yes. Affirmed.

Reasoning:

  • The elements necessary to prove abandonment are:
    • The party has withdrawn from the common dwelling;
    • The party left without lawful cause or justification; and
    • The party has constantly refused to return to live with the other.
  • Here, one and three were satisfied, so the focus was on the second element.
  • To justify or establish lawful cause for leaving the common dwelling, the withdrawing spouse must make a showing which is substantially equivalent to a cause giving rise to grounds for separation.
  • Habitual intemperance and cruel treatment were included among the causes serving as “fault” grounds for separation.
    • Habitual intemperance is not a just cause for a separation from bed and board unless such habitual intemperance, or such ill treatment, is of such a nature as to render their living together insupportable.
    • Regarding acts of cruelty, it has been held that where the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as to utterly destroy the objects of matrimony, a judgment of separation may be granted on grounds of cruelty.
  • The court found that there was sufficient evidence to find that Frank’s habitual, excessive consumption of alcohol followed by abusive language toward his wife seemed calculated to utterly destroy Brenda’s peace of mind and happiness rendering the marriage unsupportable.
  • This case shows us that under the old fault concept, one party had to be at fault and one not at fault.

Rule: The elements necessary to prove abandonment are:

  • The party has withdrawn from the common dwelling;
  • The party left without lawful cause or justification; and
  • The party has constantly refused to return to live with the other.

Rule: Grounds for separation include habitual intemperance and cruel treatment.

  • Habitual intemperance is just cause for separation if it is of such a nature as to render their living together insupportable.
  • Cruelty is just cause for separation where the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as to utterly destroy the objects of matrimony.