LoCoco v. LoCoco
Also decided on this docket: La. Ct. App. 1st Cir., February 12, 1979 368 So. 2d 194; La. Ct. App. 2d Cir., October 1, 1974 301 So. 2d 400
LoCoco v. LoCoco, 420 So. 2d 459 (La. Ct. App. 1st Cir. 1982).
Cited by
- Lo Coco v. Lo Coco 423 So. 2d 1181 La. 1982
Opinion text
WARD, Judge, dissenting with written reasons. In this petition for permanent alimony Ms. Bua alleged that her former husband, Dr. Lococo, precipitated the divorce when he abandoned her. She also alleged that she was justified in not returning to the matrimonial domicile after Dr. Lococo returned, since he had treated her cruelly during the marriage. Dr. Lococo alleged his wife abandoned the matrimonial domicile and caused the dissolution of the marriage. The trial court found both Ms. Bua and Dr. Lococo “mutually at fault.” That finding is legally inconsistent. If Dr. Lococo abandoned the domicile before Ms. Bua left the domicile, she is not at fault. If Dr. Lococo treated Ms. Bua cruelly, forcing her to leave the domicile or justifying her refusal to return to the domicile after he returned, she is not at fault. The majority opinion points out that Dr. Lococo has not appealed the trial judge’s finding of fault on his part, and therefore his fault must be accepted as proven; yet it finds Ms. Bua at fault and affirms the trial court’s decision. In order to affirm the trial court’s decision, the majority must necessarily find that Ms. Bua abandoned the matrimonial domicile — meaning she left without cause and without fault of Dr. Lo-coco; therein lies the inconsistency. This in effect reverses the trial court’s finding that Dr. Lococo was at fault. This court cannot reverse the trial court’s finding of fault of Dr. Lococo when that finding of fact was not appealed. The inconsistent finding of mutual fault should be reversed.