Ardoin v. Vezina ( 1988 )

DOUCET, Judge.

Plaintiff-Appellee, Joseph R. Ardoin, filed suit against his wife, Defendant-Appellant, Marjorie Vezina, for a divorce based on the grounds of living separate and apart for one year. Ms. Vezina reconvened seeking, among other items, a divorce based on the grounds of adultery and permanent alimony.

The trial court, after reviewing all of the evidence granted a divorce based on the parties living separate and apart for one year and denied Vezina’s request for permanent alimony. Vezina appealed from this ruling.

On appeal, Vezina urges that the trial court erred when it denied permanent alimony to Vezina because Ardoin was not proven at fault. Vezina supports this contention by directing this court to the trial judge’s oral reasons assigned. The trial judge stated that the reason he was denying defendant permanent alimony was that she failed to prove any fault on the part of her husband. While we recognize that this is the improper test for determining whether a party is entitled to permanent alimony, the proper test being whether the spouse requesting alimony is free from fault, we find that the trial court could have reached the identical result even without using this erroneous test. La.C.C. art. 160.

Both parties submitted income and expense statements. On both accounts, the parties’ total monthly expenditures exceed their total net monthly income. Vezina is a licensed beautician, has considerable assets, and has good earning capacity. Whether or not permanent alimony is granted is not mandatory but purely discretionary. Taking into account the financial situations of both parties involved, we find that the trial court was not in error when it denied Vezina permanent alimony. As such, we will not disturb the lower court’s finding with respect to this issue on appeal.

Accordingly, for the foregoing reasons, the judgment of the lower court is affirmed. All costs are assessed to defendant-appellant.

AFFIRMED.