Opinion
No. 8689.
January 11, 1978. Rehearing Denied February 14, 1978. Writ Granted March 31, 1978.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE H. C. GAUDIN, J.
Aubrey E. Pate, Kenner, for plaintiff-appellant.
Tucker, Schonekas Garrison, Arthur S. Mann, III, New Orleans, for defendant-appellee.
Before REDMANN, LEMMON and STOULIG, JJ.
Lawlest LeBlanc has appealed from that part of a judgment of divorce which awarded his wife alimony. The decision on appeal turns on the wife's proof of her freedom from fault.
Mr. LeBlanc stated his reason for leaving the matrimonial domicile was that his wife refused to have sexual relations for over two years, told him she didn't love him, and urged him to leave.
Mrs. LeBlanc, who described their marriage as "happy" until her extraordinarily silent husband suddenly left home, denied she told her husband she didn't love him or encouraged him to leave, but she neither denied his testimony about her refusal of sex nor attempted to explain the refusal.
Mutual fulfillment of reasonable sex desires is a marital obligation. Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4th Cir. 1973), cert. den. La., 288 So.2d 643. Voluntary and persistent refusal of normal sexual relations, without any attempt to explain or justify the refusal (such as prior outrageous behavior by the denied spouse) constitutes cruel treatment and outrage of such a nature as to render living together insupportable. C.C. art. 138(3).
In this case Mrs. LeBlanc's failure to deny her husband's statements about refusal of sex leaves that testimony uncontradicted. She has thus failed to prove her entitlement to alimony under C.C. art. 160.
For these reasons, the judgment of the trial court is reversed in part, and it is now ordered that the wife's demand for alimony be dismissed. Each party is to bear his own costs.
REVERSED IN PART AND RENDERED.