#### Ronald BROWN v. Mrs. Sylvia Steven BROWN, wife of Ronald Brown.

No. 4835.

Court of Appeal of Louisiana, Fourth Circuit.

March 21, 1972.

Rehearing Denied April 18, 1972.

Writ Refused May 25, 1972.

William E. Rittenberg, New Orleans, for Ronald Brown, plaintiff-appellant.

Bernette J. Johnson, New Orleans, for Mrs. Sylvia Steven Brown, wife of Ronald Brown, defendant-appellee.

Before CHASEZ, LEMMON and BAILES, JJ.

CHASEZ, Judge.

Plaintiff, Ronald Brown, obtained a judgment of separation by default against the defendant, Sylvia Steven Brown, on *67May 2, 1969, based on the ground of abandonment. On May 14, 1970 plaintiff instituted this suit seeking a judgment of divorce. Defendant answered alleging that she had never abandoned her husband and that there had been a reconciliation and she was living with the plaintiff as man and wife since the separation.

After trial on the merits judgment was rendered by the lower court in favor of the defendant against the plaintiff, dismissing the action. From this adverse judgment plaintiff has taken this appeal.

At the trial, Sylvia Brown testified that after the separation the plaintiff would often come to where she was living and spend nights with her. She also stated that she would go to where the plaintiff was living and spend time with him at his residence. In effect, defendant testified that she and the plaintiff would often engage in cohabitation for short periods which were secretive in nature because her husband allegedly desired it that way.

She further stated that she did not contest the separation action filed by her husband against her because she believed that the plaintiff was dropping the suit, having been so informed by the plaintiff. She also testified that the plaintiff promised he would move her and the two minor children placed in her custody by the judgment of separation, over to his place on Treasure Street, but that he kept putting her off, never establishing a date for the move.

Plaintiff denied living with his wife after the separation. Two witnesses testified on behalf of plaintiff, Jimmie C. Copeland, a long time friend and second cousin; and Ferdinand Boutte, a retired gentleman who is plaintiff’s downstairs neighbor. Both witnesses testified that they saw the plaintiff frequently and that they had never observed Mrs. Brown in plaintiff’s apartment or any evidence of a woman living with him. Nor could they recall in any conversation with him any indication of reconciliation between the parties.

Plaintiff’s primary contention of error is the trial judge’s finding that plaintiff had not carried the burden of proof. Specifically at issue is a statement by the trial judge that plaintiff had “to prove a negative.” Plaintiff contends that following a judgment of separation from bed and board the law presumes the parties will obey the judgment.

As a general principal of law, the burden of proving a fact is on the party who pleads the fact. Where, as here, a defendant enters a plea of reconciliation as a bar to divorce proceedings, the plea is an affirmative defense and the burden of proof rests with the defendant as to its factual establishment. Pace v. Pace, 144 So.2d 195 (La.App., 4th Cir., 1962).

In the present case the trial judge, in weighing and considering the value of testimony of each of the parties and witnesses, accepted Sylvia Brown’s testimony and stated that he could “not assume that this witness [Sylvia Brown] got on the stand and committed perjury.”

A trial Judge’s findings and conclusions with regard to the facts, particularly where the credibility of witnesses is involved, will not be disturbed unless manifest error is clearly present. Murphy v. Piro, 240 So.2d 111 (La.App., 4th Cir., 1970). A trial judge can determine far better than an appellate court the weight and credibility to be extended to each witness as they appear before him and an appellate court should not interfere unless the need clearly arises.

In the present case, the trial judge concluded that defendant’s testimony established a reconciliation and that plaintiff had not disproved that such was the case. We can perceive no manifest error in this conclusion. The testimony of witnesses offered in behalf of the plaintiff in no way rebutted the testimony of defendants. Indeed, any attempt to disprove secretive acts of cohabitation would be difficult, to say the very least. The most that can be said *68of the testimony of plaintiff’s witnesses is that when they saw or talked to the plaintiff the defendant was not with him.

As to whether reconciliation was proved or not we must accept the trial judge’s conclusions regarding defendant’s testimony. When plaintiff, on numerous occasions, spent the night with the defendant he forgave her of the abandonment and condonation and reconciliation occurred.

Reconciliation of the parties in the present case is a complete bar to plaintiff’s action for divorce. LSA-C.C. Art. 152; Collins v. Collins, 194 La. 446, 193 So. 702 (1940).

For the foregoing reasons the judgment of the lower court in favor of the defendant and against the plaintiff, dismissing his action is affirmed. Plaintiff to pay all costs of this appeal.

Affirmed.

LEMMON, Judge

(dissenting).

I disagree with the majority on two major points.

BURDEN OF PROOF

I agree that the party relying on reconciliation as a defense to an action for divorce under R.S. 9:302 has the burden of proving the fact that the parties reconciled subsequent to the judgment of separation from bed and board. In an action under R.S. 9:302 fault or other ground for entitlement to a judgment of separation has already been established by the plaintiff in the separation suit. The statute requires a waiting period after the judgment of separation in order to encourage and afford the opportunity for reconciliation.1 After the waiting period, either party may petition for a divorce, and reconciliation is an affirmative defense to that action and must be proved by the party relying on that defense.

However, I don’t believe that the trial judge accepted the testimony of the wife and rejected that of the husband. In my view he called a tie in the evidence and decided the case on burden of proof, as indicated in the following quotation:

> “ * * * You are trying to prove a negative, that something did not happen. I feel that, under the circumstances, I can’t assume that this witness got on the stand and committed perjury. I can only assume that you did not carry the burden of proof required.”

Therefore, if we accept the trial judge’s evaluation of the evidence (based on his reluctance to assume that either party committed perjury) and then apply the correct burden of proof, the wife loses since she failed to establish her affirmative defense.

RECONCILIATION

I do not believe that one act or several isolated acts of sexual intercourse are solely determinative of the issue of reconciliation.2

Reconciliation is the resumption or reestablishment of the relationship which formerly existed between the parties. While sexual intercourse constitutes strong evidence that the relationship has been resumed, I do not believe that proof of one act of sexual intercourse conclusively establishes a reconciliation which under R.S. 9:302 will abrogate the judgment of separation.

The issue of reconciliation should be determined after consideration of all of the actions of the parties and all of the circumstances of the case.

*69In this case there was no evidence whatsoever that the parties mutually intended to reestablish their former relationship, except for Mrs. Brown’s unsupported testimony about isolated occasions of hidden interludes. On the contrary, there was considerable evidence that the parties did not intend a reconciliation. Mrs. Brown admitted that her husband kept deferring any reestablishment of their family relationship. The parties continuously maintained separate residences, and since early in the separation, the children remained solely at the residence of the wife.

Except for the isolated brief periods disputed in the testimony, the husband did nothing to resume his status as husband, father and head of the household, and the wife did nothing to change her status from that of a separated spouse.

Even if we accept the wife’s contention of several instances of sexual relations, I believe that the evidence fails to establish reconciliation as a legal proposition.

There are numerous reasons why we should not establish a rule that one act of sexual intercourse conclusively constitutes reconciliation under R.S. 9:302. Since the law favors reconciliation, we should encourage opportunity for reconciliation. But if intercourse is solely determinative of reconciliation, an attorney must advise his client who has obtained a judgment of separation to avoid any situation conducive to serious reconciliation discussions, because intercourse might occur or be inferred. This deters rather than encourages a true reconciliation.

Additionally, it is virtually impossible to prove the occurrence of intercourse, and a “one act of intercourse” rule promotes a swearing contest between the parties in which one has to be lying.

Furthermore, such a rule encourages a conniving spouse with no thought of true reconciliation to use this most intimate relationship for such selfish purposes as avoiding payment of alimony after an adverse judgment of separation.

I consider more reasonable, and more adapted to its social purpose, a rule that reconciliation (particularly reconciliation after a judgment of separation as opposed to condonation after filing of suit for separation) is not synonymous with one act of sexual intercourse.

1

. See generally 1 Planiol, Traite Elémentaire de Droit Civil, Ch. V, § 1, No. 1338, p. 736 (12th ed. La. State Law Institute transl. 1969).

2

. See 35 A.L.R.2d 707, § 10 (1954); 24 Am.Jur.2d, Divorce and Separation § 214 (1966); 27A C.J.S. Divorce § 61 (1959).