#### Allen BRIDGEWATER v. Mattie Lee Johnson BRIDGEWATER.

No. 12-025.

Court of Appeal of Louisiana, First Circuit.

June 12, 1978.

Michael W. McKay, Baton Rouge, for plaintiff-appellant.

John D. Carpenter, of C. Alvin Tyler & Associates, Baton Rouge, for defendant-ap-pellee.

Before BLANCHE, COVINGTON and CHIASSON, JJ.

COVINGTON, Judge.

Allen Bridgewater, plaintiff-appellant, filed an eviction rule against his wife, Mattie Lee Johnson Bridgewater, defendant-ap-pellee, for her to show cause why she should not be ordered to vacate his separate property which had been occupied by them as their matrimonial domicile. Following a hearing, the trial court denied plaintiff’s demands for eviction of his wife,1 and he appeals. We affirm.

The facts were stipulated, and can be briefly stated as follows. On November 22, 1977, plaintiff filed a rule against his wife, seeking to have her evicted, by summary proceedings, from their residence which is the separate property of the husband and served as the matrimonial domicile up to the time they commenced living separate and apart. At the time of the hearing, there was pending before The Family Court, East Baton Rouge Parish, Louisiana, a suit for separation from bed and board, but judgment of separation had not been rendered therein.

The sole issue before this Court on appeal is whether or not a husband is allowed, prior to a judgment of separation, to evict his wife from the matrimonial domicile when the home is the husband’s separate property.

The trial judge, with written reasons, answered in the negative, relying on the case of *Purdy v. Purdy,*331 So.2d 868 (La.App. 2 Cir. 1976). We agree with the ruling of the trial judge and with the holding and rationale of the *Purdy*case.

*220The judgment is affirmed at appellant’s cost.

AFFIRMED.

CHIASSON, J., dissents and assigns written reasons.

1

. The judgment permitted plaintiff to use his separate property “to the extent that it does not deprive defendant, Mattie Lee Johnson Bridgewater, of her right to occupy the house as matrimonial domicile until the judgment of separation is rendered between them.”

CHIASSON, Judge

dissenting:

While I agree with the general principle as announced by the Supreme Court in the case of *Kramer v. Freeman,*198 La. 244, 3 So.2d 609 (1941) that there may be cases where a court would be justified, for reasons based upon the public policy, in refusing to permit a husband to sue his wife during the marriage, I cannot agree that the deciding factor should be the obtaining of a judgment of separation. The marriage is still in existence even after a judgment of separation. Further, if a cause for separation exists, Louisiana Revised Civil Code Art. 120 is not enforceable even before the rendition of a judgment of separation.

In this particular case the premises were used as the matrimonial domicile of the parties prior to their separation and as a place of business of the husband. The parties were in fact separated and a suit for separation was pending in the Family Court of East Baton Rouge Parish. The husband-owner’s responsibilities to his separated wife should be determined by the orders of the family court in which the separation suit is pending. No order or judgment of that court has been filed in this proceeding which obliges the husband-owner to allow his wife the use of these premises or accepting her occupancy thereof as a payment in kind of alimony. The fact that the occupant of the premises is the owner’s separated wife does not affect the owner’s right to possession of his property. *Pritchett v. Pritchett,*350 So.2d 1264 (La.App. 4th Cir. 1977).

I therefore respectfully dissent.