Boyd v. Boyd , 348 So. 2d 121 ( 1977 )

348 So.2d 121 (1977)

Lola Jones, wife of Elzie BOYD
v.
Elzie BOYD.

No. 8606.

Court of Appeal of Louisiana, Fourth Circuit.

June 7, 1977. Rehearing Denied August 1, 1977.

Roger I. Dallam, Greenberg & Dallam, Gretna, for plaintiff-appellant.

Walter E. Kollin, Metairie, for defendant-appellee.

Before REDMANN, GULOTTA and BEER, JJ.

REDMANN, Judge.

A wife appeals from a judgment which refused her a judgment of separation for abandonment and granted her husband a divorce for two years of living apart.

The wife argues that the trial judge erred in reasoning that she had not proved that the husband "constantly refused to return", as required by La.C.C. 143 for separation on the grounds of abandonment. But the trial judge's more basic ruling was that the husband did not leave the marital dwelling in 1976 as alleged. Instead, the trial judge found, the parties had separated in 1973 or earlier and had since then lived apart continuously. The trial judge thus rejected much of the wife's (and the 18-year-old son's and a neighbor's) testimony in accepting that of the husband (and two of his neighbors). We cannot say the trial judge thereby erred.

Thus the wife's only legal argument is that the husband's admitted staying at her house one night during the two years prior to suit (sleeping in the children's room while the wife was in the house) prevents a divorce for "living separate and apart continuously for a period of two years or more. . .", as required by R.S. 9:301. We disagree.

Although the living apart must be visible to the community and therefore is not present when spouses merely live in separate bedrooms in the same house. Hava v. Chavigny, 1920, 147 La. 330, 84 So. 892, a husband's staying at the wife's house only one night (in the children's room) during a period of more than two years would not change the neighbors' impression of the spouses' "living apart . . . in such a manner that those in the neighborhood may see that the husband and wife are not living together", as the required living apart is described in Arnoult v. Letten, 1924, 155 La. 275, 99 So. 218. Even less indicative of not living apart is the husband's allowing the wife to go with him and the children on a family-day picnic given by his employer.

Affirmed.