Brouillette, Harold J.

English

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Louisiana Law ReviewVolume 15 | Number 2The Work of the Louisiana Supreme Court for the1953-1954 TermFebruary 1955Civil Code and Related Subjects: PersonsHarold J. BrouilletteThis Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted forinclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationHarold J. Brouillette, Civil Code and Related Subjects: Persons , 15 La. L. Rev. (1955)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol15/iss2/5WORK OF THE SUPREME COURTCivil Code and Related SubjectsPERSONSHarold J. Brouillette*MARRIAGEIn Succession of Verrett' appellant claimed to be the putativewife of the decedent. Their marriage was null because the dece-dent had been validly wed before the alleged putative marriage.The children of the valid marriage opposed appellant's claim onthe ground that the good faith required by Article 1172 had notbeen shown; they attempted to show that the appellant knewthat their father was married at the time the alleged putativemarriage was performed. The court stated the well-establishedrule that the burden of proof rests on the party who alleges badfaith and found that the burden had not been met in this case.3DIVORCE AND SEPARATION FROm BED AND BOARDAdulteryThe court in Hayes v. Hayes4 held that the evidence did notwarrant the district court's finding that the defendant wife hadcommitted adultery. The only evidence was the testimony ofprivate investigators who had been hired by the suspicious hus-band to "shadow" his wife. They testified that she visited thealleged corespondent at his apartment on two occasions and methim at a cocktail lounge on another. The court said that whenevidence of adultery is circumstantial "the circumstantial proof... must be so convincing as to exclude any other reasonablehypothesis but that of guilt."5 In Humes v. McIntosh6 the defen-dant husband who admitted acts of adultery met the burden ofproving that his wife continued marital relations with him afterknowledge of those acts. Under the jurisprudence, a continuance* Member, Louisiana Bar.1. 224 La. 461, 70 So.2d 89 (1953).2. Art. 117, LA. CIVM CODE of 1870: "The marriage, which has been de-clared null, produces nevertheless its civil effects as it relates to the partiesand their children, if it has been contracted in good faith."3. For a discussion of the requirements necessary to prove a putativemarriage, see Note, 22 TULANE L. REV. 340 (1947).4. 225 La. 374, 73 So.2d 179 (1954).5. 73 So.2d at 180.6. 74 So.2d 167 (La. 1954).1955]LOUISIANA LAW REVIEWof the marital relation after knowledge by the injured party ofthe acts of infidelity is a valid defense to an action for divorcebased on those acts.7Recrimination and Comparative RectitudeThe doctrine of recrimination in divorce law requires thedenial of relief if the complainant has been guilty of conductwhich would entitle the other spouse to a divorce.8 Some stateshave modified this rule in favor of the so-called "comparativerectitude" doctrine under which the relative faults of the partiesare weighed and the divorce is granted to the spouse guilty ofthe least fault though the other has been guilty of conduct whichis ground for divorce.9 This doctrine has been recognized andadopted by the Louisiana Supreme Court both by implication 0and expressly." In Callahan v. Callais12 the court noted its accep-tance of the doctrine and after carefully reviewing the evidencepresented, concluded that the comparative faults of the partieswere equal and denied relief to both the husband, who soughtseparation from bed and board on grounds of abandonment, andto the wife who had reconvened on grounds of cruel treatment.It has been suggested that in cases of this nature, if the real issueis the advisability of continuing a personal relationship, mutualfault should increase rather than decrease the justification forgranting a separation. 13Dejoie v. Dejoie14 was decided on questions of fact, the courtfinding that the husband had sufficient reason for having aban-doned the marital domicile, namely, the wife's cruel treatmentunder Article 138 of the Civil Code.7. Adams v. Adams, 196 La. 464, 199 So. 392 (1940); Spence v. Spence,162 La. 4, 110 So. 68 (1926); Cooper v. Cooper, 10 La. 249 (1836).8. 1 NELSON, DIVORCE AND ANNULMENT § 10.01 (2d ed. 1945). For an exten-sive discussion of the doctrine of recrimination, see Bradway, The Myth ofthe Innocent Spouse, 11 TULANE L. REV. 377 (1937).9. 1 NELSON, DIVORCE AND ANNULMENT § 10.03 (2d ed. 1945). See alsoComment, A Comparison of Recrimination and the Doctrine of ComparativeRectitude and their Incidents, 3 BAYLOR L. REV. 55 (1950).10. Temperance v. Herrmann, 191 La. 696, 186 So. 73 (1938); Gormley v.Gormley, 161 La. 121, 108 So. 307 (1926).11. Callahan v. Callais, 224 La. 901, 71 So.2d 320 (1954); Eals v. Swan,221 La. 329, 59 So.2d 409 (1952).12. 224 La. 901, 71 So.2d 320 (1954).13. The Work of the Louisiana Supreme Court for the 1951-1952 Term-Persons, 13 LOUISIANA LAW REVIEW 253, 254 (1953).14. 224 La. 611, 70 So.2d 398 (1954).[VOL. XVWORK OF THE SUPREME COURTALIMONYArticle 232 provides that when circumstances warrant adischarge from the obligation of paying alimony or a reductionin the amount being paid, "the discharge from or reduction ofthe alimony may be sued for and granted." But it is well settledthat an alimony judgment is the property of the person to whomgranted and as to alimony past due, it cannot be altered orannulled.15 In Pisciotto v. Crucia6 the defendant stopped makingthe alimony payments without getting a discharge from thecourt. After 162 weekly payments had been missed, the plaintiffbrought an action for a lump sum judgment. The defendantalleged that the payments had been waived by the plaintiff'sfailure to complain timely. The court followed a line of juris-prudence holding that the failure to protest periodically doesnot waive payment of alimony.' 7 The defendant's plea of pre-scription based on Article 3538 was maintained as to paymentsdue for more than three years, thus reducing the judgment tothe total due for 156 weeks.In Hillard v. Hillard'8 the court, reversing the district courtdecision, applied the well-established rule that the duty of ahusband to pay ailmony pendente lite is not dependent upon thegrounds for or the outcome of the suit for separation from bedand board or divorce. The judgment of the district court denyingthe alimony was rendered at the same time as the decree grant-ing the husband a separation on grounds of abandonment, andon appeal Justice McCaleb dissented saying that, since Article148 authorizes alimony only "pending the suit for separationfrom bed and board or for divorce," when a final judgment ofseparation from bed and board has already been rendered "thereis no statutory sanction for the continuance of the alimonypendente lite."'19Only two other cases involved alimony and their decisionswere based on questions of fact; one concerned the sufficiencyof evidence to prove that the ex-wife had sufficient means for15. Art. 548, LA. CODE OF PRAcTICE of 1870; Williams v. Williams, 211 La.939, 31 So.2d 170 (1947); Snow v. Snow, 188 La. 660, 177 So. 793 (1937).16. 224 La. 802, 71 So.2d 226 (1954).17. Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950); Wainwright v.Wainwright, 217 La. 563, 46 So.2d 902 (1950), 25 TULANE L. REv. 264 (1951).For a discussion of the question of waiver of alimony payments, see TheWork of the Lou4siana Supreme Court for the 1949-1950 Term-Persons, 11LOUISIANA LAw Ramw 173, 174 (1951).18. 225 La. 507, 73 So.2d 442 (1954).19. 73 So.2d at 446.1955]LOUISIANA LAW REVIEW [VOL. XVher maintenance, 20 and the other the sufficiency of the evidenceto prove that the ex-husband was able to pay the amount ofalimony awarded by the district court.21ILLEGITIMATE CHILDRENCriminal Neglect of FamilyThe question of a father's liability to support his illegitimatechildren has caused no little difficulty in Louisiana. Article 74of the Criminal Code imposes penal sanctions on parents forfailure to support their children, both legitimate and illegitimate.The legislature's amendments to this article and the court's inter-pretation of these amendments have received extensive com-mentary in this Review.2 2 Two cases decided during the lastterm, State v. Lemoine;3 and State v. Mack,24 indicate that thisarea of our law continues to be a troublesome one.Article 923In Succession of Wesley 25 the court was required to deter-mine whether or not a legitimate child can have "natural brothers20. Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954).21. John v. John, 224 La. 426, 69 So.2d 737 (1953).22. See Comment, 12 LOUISIANA LAW RVIEw 301 (1952); Louisiana Legis-lation of 1952, 13 LOUISIANA LAW REVIEW 21, 59-60 (1952); The Work of theLouisiana Supreme Court for the 1951-1952 Term--Persons, 13 LOUISiANA LAWREVIEw 253, 261 (1953); Louisiana Legislation of 1954-Criminal Law andProcedure, and Penal Institutions, 15 LOUISIANA LAW REVIEW 59 (1954); Note,14 LOUTsIANA LAW REvIEw 898 (1954).23. 224 La. 200, 69 So.2d 15 (1953). In 1950, Article 74 of the CriminalCode, which provides that failure to support a wife or child is a crime, wasextended to require support of illegitimate children. State v. Randall, 219 La.578, 53 So.2d 689 (1951), presented the question of whether the state couldintroduce, in a prosecution under this article, evidence to show that thedefendant was the father of a child when the mother was legally marriedto someone else. The court held that such evidence was not admissible be-cause the right to contest the legitimacy of a child born of a married womanis reserved to her husband who may disavow the child only by an action enddsaveu and within certain delay periods as prescribed by Articles 184-191of the Civil Code. The legislature, by Act 368 of 1952, again amended Crimi-nal Code Article 74, this time to provide that "in case of an illegitimatechild" evidence is admissible to prove paternity for purposes of criminalprosecution but that "such evidence shall not be construed as establishingany civil obligation." State v. Lemoine presented the same problem as theRandall case and the state contended that the 1952 amendment permittedsuch evidence. The court held that the Randall case was controlling andthat the 1952 amendment did not change its rule because those provisionsapplied only to the case of illegitimate children and the child in theLemoine case was, by irrebutable presumption, the legitimate child of themother's husband.It is noteworthy that one writer had suggested that the rule of theRandall case had not been changed by the 1952 amendment. See The Workof the Louisiana Supreme Court for the 1951-1952 Term-Person8, 13 LOuIsI-ANA LAW REVIEW 253, 262, n. 36 (1953).24. 224 La. 886, 71 So.2d 315 (1954), 14 LOUISIANA LAW REVIEW 898.25. 224 La. 182, 69 So.2d 8 (1953).WORK OF THE SUPREME COURTand sisters." The decedent was the acknowledged illegitimateson of the claimant's legitimate mother and the claimant allegedinheritance rights under Article 923 which provides:"If the father and mother of the natural child diedbefore him, the estate of such natural child shall pass tohis natural brothers and sisters, or to their descendants."The court held that "natural brothers and sisters" means theother natural children of the same father or the same mother,thus negativing the possibility of a legitimate person acquiringthat status.26Proof of PaternityArticle 210 provides that the paternity of an illegitimate childmay be proved by the oath of the mother if she is not a woman"of dissolute manners" and if she has never had an "unlawfulconnection" with any man other than the accused. In Rousseauv. Bartell27 the mother testified that on one occasion she un-successfully attempted intercourse with another man and thecourt held that this did not constitute an "unlawful connection"and that her oath that the defendant was the father of the childwas a proper basis for a judgment declaring him such. This caseis treated fully elsewhere in this Review.23CUSTODYIn Cannon v. Cannon29 the district court refused to grantcustody of two minor children to their mother for the reasonthat the home where she resided was small and inadequate ascompared with the one provided by the father, which was thehome of the paternal aunt of the child. The father .had beengranted custody with the wife's consent at the earlier divorceproceeding. The Supreme Court reversed stating "it is to thewelfare and best interest of young children that the mother beawarded their custody unless she is shown to be morally unfitor otherwise unsuitable [citing authorities]."026. For a discussion of the difficulties encountered in the use of theterm "natural child," see Note, 15 LOUISIANA LAW REVIEW 221 (1954).27. 224 La. 601, 70 So.2d 394 (1954).28. See Note, 15 LOUISIANA LAw REVIEW 218 (1954).29. 74 So.2d 147 (La. 1954).30. Id. at 148.19551LOUISIANA LAW REVIEWThree other cases involved child custody, two being litigatedon questions of procedure,31 and the third concerned a conflictof laws problem.82ADOPTIONWhere a person by an act of adoption acquires the status ofa forced heir of the adoptive parents, is that status lost as tothose parents by a subsequent adoption of the same person bydifferent parents? The court in Succession of Gambino33 an-swered that question in the negative. Discussing the legal rightsand obligations resulting from adoption, the court said thatArticle 214 of the Civil Code is "the substantive law on thissubject. 3 4 and that "this article does not provide how thisrelationship once created can be undone."3 Section 13 of Act428 of 1938, which was in effect at the time of the second act ofadoption, would have, if valid, led to a different result. It pro-vided: "Upon the entry of the final order of adoption, the saidchild shall cease to be heir of its parents." But the court agreedwith the district court holding that the provision was violative ofArticle III, Section 16, of the Louisiana Constitution of 1921 inthat it dealt with substantive matters not indicated in its title.The title indicated that the act dealt only with the method andprocedure of adoption.In the only other case of the term involving adoption, Suc-cession of Williams,8 the court held that a notarial act of adop-tion which was not in accordance with the law in effect at thetime of its execution had been rendered valid by Act 46 of 1932which "confirmed, approved, and validated" prior acts of adop-tion.3731. Bernard v. Bernard, 224 La. 83, 68 So.2d 766 (1953); D'Antoni v. Geraci,224 La. 818, 70 So.2d 883 (1954).32. Francis v. Carpenter, 224 La. 916, 71 So.2d 326 (1954). See discussionof this case in the Conflict of Laws section of the symposium, page 299infra.33. 225 La. 674, 73 So.2d 800 (1954).34. 73 So.2d at 803.35. Ibid.36. 224 La. 871, 71 So.2d 229 (1954).37. La. Acts 1872, No. 31, p. 79, as amended by La. Acts 1924, No. 48, p.76, was in effect at the time of the act of adoption (1928) and La. Acts 1932,No. 46, p. 239, "confirmed, approved, and validated" prior acts of adoption.The 1932 act was superseded by La. Acts 1940, No. 241, p. 992.[VOL. XV

Civil Code and Related Subjects: Persons

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Civil Code and Related Subjects: Persons

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