219 La. 750

#### MEYER v. HACKLER et al.

No. 39750.

Supreme Court of Louisiana.

Feb. 12, 1951.

On Rehearing May 28, 1951.

*8Edward J. Stoulig, Kenner, for plaintiff-appellee.

R. A. Dowling, New Orleans, for appellant.

MOISE, Justice.

This appeal has been prosecuted from a judgment of the district court granting the plaintiff husband a divorce a vinculo mat-rimonii from the defendant wife on the ground of adultery; granting him the permanent care, custody and control of their three-year old daughter; dissolving the community of acquets and gains and ordering a partition thereof; enjoining the defendant from styling herself “Mrs. Wendel M. Meyer”; dismissing defendant’s recon-ventional demand for a separation from bed and board; and disallowing the defendant’s attorneys’ fees prayed for in connection with the said reconventional demand.

Inasmuch as we have concluded that the major consideration for determination on the charge of adultery is the sufficiency of the evidence adduced, we *9submit the following facts of substance: The record shows that the plaintiff’s brother and three men companions on the night of August .25, 1949, waited in an automobile, which was parked near the residence of plaintiff and defendant, for the arrival of a mysterious “someone” at that residence, the plaintiff being absent and away at the time. At about 9:40 p. m. a taxi cab stopped at the street corner down from the residence, which was in the middle of the block. We are not told to whom or to what company this cab belonged, nor are we given the license number of the cab, nor did the driver of the cab ever appear to testify in these proceedings. It is said that this man alighted from the cab and went into a common alley between the residence of plaintiff and defendant, and the house next door. The four observers remained in the parked automobile until 4:18 a. m. the next morning, when they say they saw a man whom they believed to be the same individual come out of the residence of plaintiff and defendant. It may be noted that the residence is of the type known as a double house, and that plaintiff and defendant occupied one side thereof. It did not occur to the four “observers” to follow this person whom they say left the house, nor did they observe the name or number of the taxi cab in which they claim he departed, nor was the driver of this cab produced. It is also worthy of note that this was the only time the plaintiff’s brother had ever requested any one to “watch” with him, and further that it was the only time which he admitted having “watched” himself. This, then, is the charge of adultery.

Any attempt to go into the credibility of the witnesses would be a vain and useless thing, because the issue here is the sufficiency of the evidence. We have thoroughly reviewed the pleadings and analyzed the testimony adduced at both the trial on the merits and the antecedent rule for the custody of the child, and no intricate legal question being involved, a proper determination of the case merely requires a correct appreciation of the conclusiveness of the evidence.

In many of the common law states, adultery 'has been made a criminal offense. In Louisiana we have no such statute, but the charge is semi-criminal, before the wife can be stigmatized, the proof of adultery should be so clearly and conclusively shown, that there is no practical theory under which she could be innocent, when all of the evidence is considered together. Salles v. Salles, 187 La. 914, 175 So. 618; Clark v. Clark, 207 La. 606, 21 So.2d 758 are cases bearing on sufficiency of proof. We submit that an ounce of analysis as to what has been *said*by the witnesses .is worth more than a smokehouse full of *theories*as to the proof of the charge. Here a young woman has been stigmatized an adulteress, and it is a far graver thing to brand a woman an adulteress than to brand a man an adulterer, because he, be-i ing the grosser animal, is not so amenable to shame when thus convicted as the hapless woman. “A coat of black paint will ruin a marble Venus, but has no appreciable effect on an iron Hercules.” Men regard such lapses as venial, but women regard such lapses on the part of their sex as a mortal sin.

With regard to defendant’s reconven-tional demand for separation from bed and board from the plaintiff on grounds of cruel and inhuman treatment, she has alleged several acts, some of which are proven by the very testimony of the plaintiff and others by the testimony of third parties. The acts complained of and substantiated in the record either by external proof or admissions of the plaintiff are: habitual arguing and cursing on his part; boasting of adultery with a woman on Magazine Street in New Orleans (he later denied the act, though he admitted the boast); jealous accusations of infidelity (he admitted that he was constantly trying to trap his wife into an admission of such unfaithfulness) ; giving their infant daughter beer to drink, particularly when this was contrary to Mrs. Meyer’s religious training; finally, abandoning the wife. Taken together, these acts constitute sufficiently cruel treatment on the part of the husband to justify a judgment of sep*10aration from bed and board in favor of the wife. Art. 138, par. 3, 5, R.C.C.

In Salles v. Salles, [187 La. 914, 175 So. 618] supra, the husband instituted action for the divorce. The syllabi read: “1. In suit for divorce, testimony of husband and corespondent was insufficient to prove adultery or cruel treatment on the part of the wife.” “2. In suit for divorce, testimony in support of reconventional demand of wife for decree of separation from bed and board, that husband frequently became intoxicated and subjected wife to cruel treatment was sufficient to justify decree of separation from bed and board.”

Having reached the conclusion that the wife is entitled to a separation from bed and board on her reconventional demand, we must consider that part of the decision which awarded the care, custody and control of the three-year old girl to the father. The record disclosed that there is nothing objectionable to the wife’s character except the unproven charge of adultery upon which this suit was instituted. In fact, the evidence preponderates that she bears an excellent reputation for morals, being a devoted worker in the church of- her affiliation, and further that she has been a good mother. This testimony is conclusive and is not refuted by any of the plaintiff father’s witnesses. To deprive a mother of her child, her moral unfitness must 'be clearly proved. From the evidence adduced it is our conclusion that it would better promote the general welfare of the child for her to remain in the custody and control of her mother.

For the reasons assigned, the judgment of divorce on the grounds of adultery is reversed, annulled and set aside; and

It is now ordered that there be judgment in reconvention in favor of the defendant, Mrs. Merl Hackler Meyer, granting her a separation from bed and board, dissolving the community of acquets and gains between them, and awarding Mrs. Merl Hackler Meyer the permanent care, custody and control of her minor daughter, Wendelyn; and

It is further ordered that these proceedings be remanded to the district court for a decision on the question of alimony for Mrs. Merl Hackler Meyer and her child, and reserving the right of action to sue for attorneys’ fees as the law directs; plaintiff to pay all costs of these proceedings, all other costs to await the final disposition of the case.

LE BLANC, J., concurs with written reasons.

LE BLANC, Justice

(concurring).

I concur. However I do not subscribe to some of the statements in the opinion from which it might be implied that a different standard of conduct is tolerated as between a married man and a married woman, depending on which of the two may be the guilty party in committing adultery.

Regardless of how society may look upon the fault of either, and regardless of whose sin may be the greater, we have to consider the matter, in cases of this kind, purely from the standpoint of what the law is and certainly Article 139 of the Revised Civil Code, which specifies adultery as one of two grounds only for obtaining an absolute divorce, makes no distinction between the husband and the wife with respect to which of the two is entitled to the divorce when the other has been found guilty of adultery.

On Rehearing.

HAMITER, Justice.

In his application for a rehearing plaintiff complained only of that part of our decree which granted to defendant under her reconventional demand a judgment of separation from bed and board, his counsel contending that the district court during the trial had excluded all evidence of alleged acts of cruel treatment (the basis of defendant’s demand) when sustaining plaintiff’s general objection that such acts had been condoned. We granted a rehearing on the showing thus made, but restricted it to a consideration of the reconven-tional demand. Except to this extent, therefore, our original decree has not been vacated.

*11-On this limited rehearing plaintiff’s counsel, in addition to urging the mentioned contention made in the application, insists that defendant’s demand in reconvention (for a separation on grounds of cruel treatment) cannot lie or be maintained in this action (for a divorce predicated on charges of adultery) because the former is not necessarily connected with and incidental to the latter as required by Code of Practice Article 375.

The record discloses that during the trial counsel for plaintiff invoked the provisions of said Article 375 by offering an objection based thereon to any and all evidence in proof of the reconventional demand. The district court did not specifically rule on this objection; however, it appears to be without merit. In her pleadings setting out the reconventional demand defendant averred, as an element of cruel treatment, that plaintiff has continually accused her of being unfaithful to him and that for several months he had her followed by detectives. In view of these factual allegations it must be said that the reconven-tional demand is connected with and incidental to the main demand.

In Salles v. Salles, 187 La. 914, 175 So. 618, this court affirmed a judgment which had maintained the defendant wife’s re-conventional demand for a separation, grounded on charges of cruelty, filed in the husband’s main action for a divorce, based on allegations of adultery.

True, in the Salles case the issue presently under consideration was not specifically raised. But it was raised and passed upon in Landry v. Regira, 188 La. 950, 178 So. 502, 503 the court there holding that “the evidence of ill treatment and the evidence of adultery are certainly connected and incidental.”

Adverting now to plaintiff’s contention which prompted our granting this limited rehearing, we find in the record much evidence tending to show that plaintiff was guilty of cruel treatment toward defendant. But such evidence of cruelty was admitted for the sole and exclusive purpose of determining the issue respecting the custody of the child after the court had sustained the objection of plaintiff’s counsel to any and all testimony in proof of the reconventional demand “on the ground that the actions of the parties in living together after these alleged offenses is a condonement on the part of the defendant, Mrs. Merl Hackler Meyer.” Consequently, particularly since the record before us contains no legally admitted evidence in proof of the reconventional demand, we were without right in granting to defendant on the original hearing a judgment of separation.

It is our opinion, however, that the district court erred when ruling that defendant 'had condoned the cruel acts charged to plaintiff, and, hence, that she could not introduce evidence in support of the allegations of her reconventional demand.

In the Revised Civil Code it is stated:

> “The action of separation shall be extinguished by the reconciliation of the parties, either after the facts which might have given ground to such action, -or after the action had been commenced.” Article 152.

> “In either case the plaintiff shall be precluded from bringing his action; but he shall be at liberty to bring a new suit for causes arising since the reconciliation, and therein make use of the former motives to corroborate his new action.” Article. 153.

Reconciliation (or condonement), as provided for in these codal articles, is an affirmative defense; and the burden of establishing it is with the one so pleading. Furthermore, a mere forbearance of a wife in enduring cruel treatment of the husband should not be construed as reconciliation barring her action for separation from bed and board. New v. New, 186 La. 1017, 173 So. 748.

Through his objection to the evidence offered by the defendant in proof of her reconventional demand, plaintiff sufficiently pleaded condonement (replication is unknown to our law). But at the time the court ruled on the objection and excluded all of defendant’s evidence, the existence of the pleaded condonement or reconciliation did not appear with legal certainty, *12the plaintiff having failed to discharge the burden which he carried of affirmatively establishing it. Thereafter, of course, the reconventional demand having been eliminated, such establishment was useless and unnecessary.

Therefore, the case will have to be remanded not only for the purpose of deciding the question of alimony, as originally .decreed, but also to’ receive evidence respecting, as well as to determine, defendant’s reconventional demand and plaintiff’s plea of condonement.

For the reasons assigned the case is remanded to the district court for further proceedings according to law and not inconsistent with the views herein expressed.

MOISE, J., concurs in decree.