Lemoine v. Lemoine
97 La.App. 3 Cir. 1626, 715 So. 2d 1244 (1998)
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Rule of Law:
Under Louisiana Civil Code Article 102, the requirement that spouses live 'separate and apart continuously' for 180 days after a divorce petition is served is substantively equivalent to determining whether the parties have reconciled, which is a question of mutual intent to reestablish the marital relationship permanently.
Facts:
- On February 18, 1997, Henry H. Lemoine, Jr. physically separated from Brenda Gremillion Lemoine when he moved out of the marital domicile.
- After their separation, Henry and Brenda Lemoine traveled out of town together on four separate overnight trips.
- After their separation, Henry H. Lemoine, Jr. stayed overnight with Brenda Gremillion Lemoine at the former marital domicile on at least four occasions, during which they resumed sexual relations.
- During the separation, Henry H. Lemoine, Jr. rented a separate residence.
- Henry H. Lemoine, Jr. never intended to return to the marital domicile permanently, always brought his clothes with him when staying overnight, and never moved any of his possessions back into the marital home.
Procedural Posture:
- On February 18, 1997, Henry H. Lemoine, Jr. filed a Petition for Divorce and Other Relief in a trial court (court of first instance).
- On February 24, 1997, Brenda Gremillion Lemoine was personally served with the divorce petition.
- On March 11, 1997, Brenda Gremillion Lemoine filed an Answer and Reconventional Demand also seeking a divorce under La.Civ.Code art. 102.
- On July 28, 1997, a hearing was held on the rule for custody, child support, and alimony pendente lite, where Brenda Gremillion Lemoine was granted $2,000.00 per month in alimony pendente lite.
- On August 25, 1997, Henry H. Lemoine, Jr. filed a Motion for Final Divorce, alleging 180 days had elapsed since service and that the parties had lived separate and apart continuously without reconciliation.
- Brenda Gremillion Lemoine answered, denying Henry H. Lemoine, Jr.'s allegations that they had lived separate and apart continuously.
- The trial court rendered judgment in favor of Henry H. Lemoine, Jr., granting him a divorce pursuant to La.Civ.Code art. 102, finding no reconciliation and that the parties had lived separate and apart for six months.
- Brenda Gremillion Lemoine (appellant) appealed the trial court's judgment to the Court of Appeal of Louisiana, Third Circuit.
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Issue:
Does the requirement under La.Civ.Code art. 102 that spouses live 'separate and apart continuously' for 180 days after a divorce petition is served require a different inquiry than determining whether the parties have reconciled?
Opinions:
Majority - Thibodeaux, J.
No, the requirement of living 'separate and apart continuously' for 180 days under La.Civ.Code art. 102 is substantively the same as determining whether there has been no reconciliation during that period. The court affirmed the trial court's judgment, finding that Article 102 contemplates reconciliation as a method for extinguishing a cause of action for divorce, as supported by La.Civ.Code art. 104 and its 1990 Revision Comments. The court emphasized that Articles 102 and 104 are in pari materia and must be interpreted together. 'Living separate and apart' means the parties live in such a manner that the community is aware of the separation. Reconciliation, which defeats a divorce action, occurs when there is a mutual intent to reestablish the marital relationship on a permanent basis, and this is a question of fact determined from the totality of the circumstances. Despite intermittent physical contact, including overnight stays and sexual relations, the trial court's finding of no reconciliation was not manifestly erroneous because Henry Lemoine maintained a separate residence, kept his major belongings elsewhere, and lacked the intent to permanently restore the marriage. Additionally, the court denied Henry Lemoine’s request for damages for a frivolous appeal, determining that Brenda Lemoine's contentions were brought in good faith and not solely for delay.
Analysis:
This case clarifies the interpretation of Louisiana's no-fault divorce statute, specifically how the requirement of 'living separate and apart continuously' relates to the concept of 'reconciliation.' It establishes that courts may properly consider reconciliation as a defense to a divorce action under La.Civ.Code art. 102, confirming the intertwined nature of these concepts. The ruling provides valuable guidance on evaluating the intent behind a couple's interactions during a separation period, emphasizing that intermittent physical contact or sexual relations do not automatically negate the 'separate and apart' requirement if there is no mutual intent to reconcile permanently. This helps prevent minor, non-committal interactions from indefinitely delaying or frustrating valid divorce proceedings.
