Rivette v. Rivette
2005 WL 767860, 899 So. 2d 873 (2005)
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Rule of Law:
A cause of action for divorce based on continuous separation for a statutory period is extinguished if the parties reconcile, which occurs when there is a mutual intent to reestablish the marital relationship on a permanent basis.
Facts:
- Cynthia and Dennis Rivette were married on May 9, 1998, and later had one child, Aiden, born March 8, 1999.
- On November 1, 2003, Dennis Rivette moved out of the marital domicile, causing the parties to physically separate.
- Cynthia and Dennis Rivette engaged in mediation to amicably negotiate a joint custody arrangement and a partition of their community property.
- In mid-February 2004, Cynthia Rivette testified that Dennis Rivette returned to live with her and their son, bringing a large suitcase of clothes, and that they resumed living together as a couple, mutually cared for their son, and restarted their sexual relationship.
- In late-February 2004, Dennis Rivette renewed his driver's license, listing the marital home's address.
- In early March 2004, Cynthia Rivette testified that she 'kicked out' Dennis Rivette again because he continued to bring up legal issues regarding the community property settlement.
- Dennis Rivette maintained that he never intended to reconcile or move back in permanently, only visiting for dinner and to care for his son, sometimes spending the night when Cynthia Rivette was away or their son was ill.
Procedural Posture:
- On December 16, 2003, Cynthia Rivette filed a petition for divorce in the trial court (court of first instance) in accordance with La.Civ.Code art. 102.
- On December 23, 2003, Dennis Rivette accepted service and waived citation of the divorce petition.
- On March 1, 2004, Cynthia Rivette filed a rule to terminate the community property regime, alleging continuous separation without reconciliation since December 16, 2003, with an affidavit of verification dated February 17, 2004.
- On March 25, 2004, Cynthia Rivette filed motions to dismiss her previously filed petition for divorce and rule to terminate community property, alleging 'a period of reconciliation of the parties.'
- On April 13, 2004, Dennis Rivette filed a rule to show cause asking the trial court to order the mediator to release the community property settlement documents for recordation.
- On April 26, 2004, Cynthia Rivette filed a rule for interim and final spousal support, stating that the parties had 'reconciled for a brief period of time, but have since physically separated again.'
- On June 30, 2004, the trial court heard the motions and rendered judgment in favor of Cynthia Rivette, dismissing her petition for divorce on the basis of reconciliation.
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Issue:
Does a brief period of cohabitation and intimacy between spouses, following the filing of a divorce petition but prior to a motion for judgment of divorce, constitute 'reconciliation' sufficient to extinguish a cause of action for divorce under Louisiana Civil Code article 102, which requires continuous separation?
Opinions:
Majority - Judge Genovese
Yes, a trial court's finding of reconciliation, based on a brief period of renewed cohabitation and intimacy, is sufficient to extinguish a cause of action for divorce under La.Civ.Code art. 102 if it demonstrates mutual intent to permanently reestablish the marital relationship. The court affirmed the trial court's dismissal of the divorce action, finding no manifest error. Louisiana Civil Code article 102 requires spouses to live 'separate and apart continuously for at least one hundred eighty days' for a divorce to be granted. Reconciliation occurs when there is a 'mutual intent to reestablish the marital relationship on a permanent basis,' a determination that is a question of fact for the trial judge based on the totality of the circumstances (citing Lemoine v. Lemoine and Woods v. Woods). The appellate court reviews such factual findings under a 'manifest error' or 'clearly wrong' standard, giving great deference to the trial court's evaluations of credibility and inferences of fact, especially when there is conflicting testimony (Rosell v. ESCO). Here, the trial court explicitly found, based on its observation and appraisal of Dennis Rivette's testimony, that he did move back in with his wife in February. This was a clear demeanor and credibility determination. Given the deferential standard of review, the appellate court concluded that the trial court's finding of reconciliation was reasonably supported by the record and was not manifestly erroneous.
Dissenting - Judge Painter
No, the trial court’s finding of reconciliation was manifestly erroneous and not supported by a reasonable factual basis in the record, therefore it should not extinguish the divorce action. The dissent argued that the majority failed to properly apply the burden of proof, which requires the party claiming reconciliation (Cynthia Rivette) to establish it by a preponderance of the evidence (Walker v. Walker). Reconciliation demands a 'mutual intent to re-establish the marital relationship on a permanent basis' (Lemoine, Woods). The timeline of Cynthia Rivette’s court filings directly contradicted her testimony; she filed a rule alleging continuous separation without reconciliation on March 1, 2004, verified by an affidavit dated February 17, 2004, a period during which she later claimed reconciliation occurred. Furthermore, Cynthia Rivette failed to call any of the 'lots of people' or 'best friends' she claimed witnessed the reconciliation, invoking the adverse presumption rule that their testimony would have been unfavorable (Shelvin v. Waste Mgt., Inc., Driscoll v. Stucker). Her testimony was deemed self-serving, inconsistent, and contradicted by Dennis Rivette and his roommates, who testified he never moved back permanently and showed no intent to reconcile through his actions (e.g., paying rent elsewhere, continuing to pursue community property settlement). The trial court's own oral reasons for judgment, questioning Dennis Rivette's manipulative intent and Cynthia Rivette's financial motives, suggested a lack of the requisite mutual intent for permanent reconciliation. The dissent concluded that there was no reasonable view of the evidence to support the trial court's finding of reconciliation, making its decision clearly wrong.
Analysis:
This case significantly reinforces the substantial deference appellate courts grant to trial courts in factual findings, particularly those reliant on witness credibility in domestic disputes. It illustrates that for reconciliation to extinguish a divorce action, the focus is on a subjective 'mutual intent to reestablish the marital relationship on a permanent basis,' not merely on acts of cohabitation or intimacy. The dissenting opinion provides a strong counter-argument, emphasizing the importance of documentary evidence and consistent behavior in challenging a trial court's credibility determinations, even under a stringent manifest error standard. Ultimately, the case highlights that a party's actions, especially legal filings, must align with their assertions of reconciliation to be persuasive.
