Kleinpeter v. McCulloh
| Decision Date | 10 March 1975 |
| Docket Number | No. 10173,10173 |
| Citation | Kleinpeter v. McCulloh, 312 So.2d 146 (La. App. 1975) |
| Parties | Durbin B. KLEINPETER v. Jean McCULLOH. |
| Court | Court of Appeal of Louisiana — District of US |
Ashton L. Stewart, Baton Rouge, for appellant.
Robert L. Kleinpeter, Baton Rouge, for appellee.
Before LANDRY, BLANCHE and YELVERTON, JJ.
Durbin B. Kleinpeter filed suit seeking separation from his wife, Jean McCulloh, on the grounds of her habitual intemperance.By reconventional demand, Jean McCulloh sought a separation from plaintiff on the grounds of abandonment.Judgment was rendered by the trial judge finding mutual fault and, therefore, neither party was granted a separation.From this judgment both parties appealed.We affirm the judgment of The Family Court dismissing plaintiff's suit but reverse the judgment insofar as it denies the defendant's reconventional demand for a separation.
Plaintiff and defendant have been married since 1948 and of their marriage seven children were born.At the time of trial all except two children had reached the full age of majority.During the past few years their marriage began to disintegrate and on February 14, 1974, plaintiff-husband removed himself from the marital domicile on Perkins Road, leaving the defendant wife there with their two minor children, Stephen Sears, age seventeen, and Jeffrey Andrew, age fifteen.His alleged reason for leaving was the habitual intemperance of the defendant wife.He contends that for the past several years she had continuously indulged in the drinking of intoxicating beverages to the extent that she would become extremely irritable with him and that because of such drinking she refused to accompany him on business functions, preferring to remain at home and drink intoxicating beverages.He alleges the entire matter was brought to a head when he learned from other sources that the defendant was arrested and charged with driving while intoxicated on January 20, 1974.He further alleges that for those reasons their further living together was insupportable and, therefore, he was entitled to a separation.
The trial judge held that neither party was entitled to a separation based upon the evidence and that the deterioration of their marriage was due to the mutual fault of both parties, stating that the testimony indicated that perhaps both drank more than they should.
Plaintiff's action is based on LSA-C.C. Art. 138(3)1.In attempting to prove his case, the plaintiff testified that for years the marriage between him and defendant was not what it should have been, in fact, they did not share the same bedroom for at least two years prior to his leaving.He asserted that many times he would come home in the evening and find his wife lying across her bed but when asked if he ever approached her while in such condition to ascertain what was wrong, he replied in the negative, stating that he simply assumed she had been drinking.He admitted that both of them drank but that in spite of the fact that he never drank at home he would find martini and cocktail glasses throughout the house when he returned at various times during the day, indicating to him that the defendant had been drinking.He was home for supper only once or twice a week during the several months preceding his departing the matrimonial domicile and was usually not home at night because he would leave to go to a nearby country club to play cards in an effort to prevent further friction between himself and the defendant .He never helped much around the house or did any yardwork because his being around the house usually increased the antagonism between them.He admitted the defendant attended to household duties in good fashion, gave the children a good breakfast in the morning, always kept their clothes properly and that she was 'on the ball' every morning.He contended that immediately after the schoolbus picked up the children in the morning, she would go to the golf course where she would drink until the afternoon.However, he admitted she was always present when the children returned from school.
The only other proof submitted by plaintiff to prove the habitual intemperance of the defendant was the testimony of the plaintiff's brother, Thomas G. Kleinpeter, Sr.He testified that he had seen defendant drinking on occasions during the day and that once or twice during the last six months she drove into his driveway to extend social invitations to his family while she had a drink in her hand.However, he saw her and the children at church regularly as they attended the same services and could not accuse her of being a poor mother.
The defendant-wife, Jean McCulloh, related that after the plaintiff departed for work in the morning he usually came back home about 11:00 A.M. to check his mail and phone calls and then went out again, usually not returning until everyone was in bed.She asserted plaintiff had not come home regularly for supper in years and that he, too, drank but not much at home.She agreed that he did little around the house, and, in fact, she herself did all the chores including mowing the lawn.
Sue Ann Kleinpeter began Centenary College in Shreveport in September of 1974.She said prior to her leaving home for school her mother always attended to her household duties, maintaining their clothes, cooked all their meals, managed the household, and when needed drove the children back and forth to school.She felt the defendant was a very good mother.
Durbin B. Kleinpeter, Jr., being twenty-four years...
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Chamblee v. Chamblee
...to the opposing spouse to justify his leaving. Stalnaker v. Stalnaker, 204 So.2d 779 (La.App.2nd Cir., 1967); Kleinpeter v. McCulloh, 312 So.2d 146 (La.App.1st Cir., 1975); Farkas v. Farkas, 264 So.2d 721 (La.App.1st Cir., 1972); Legleu v. Legleu, 187 So.2d 6 (La.App.1st Cir., 1966). The ca......
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Burnett v. Burnett
...there is a lack of affection between the husband and wife does not give one of them cause to abandon the other. Kleinpeter v. McCulloh, 312 So.2d 146 (La.App.1st Cir. 1975). As was noted in Loftin v. Loftin, 304 So.2d 869 (La.App.2d Cir. 'Although the participants in this action developed a......
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Arntson v. Arntson, 13087
...entitled to a separation based on abandonment when his wife left the matrimonial domicile without lawful cause. Kleinpeter v. McCulloh, 312 So.2d 146 (La.App., 1st Cir. 1975); Burnett v. Burnett,324 So.2d 622 (La.App., 2d Cir. 1975). There is no merit to plaintiff's contention the separatio......
