Opinion
No. 31332.
June 20, 1932.
Appeal from Civil District Court, Parish of Orleans; William H. Byrnes, Jr., Judge.
Suit by Adele R. Kruse against Samuel Kruse. From an adverse judgment, defendant appeals.
Affirmed.
N.H. Polmer, of New Orleans, for appellant.
Weiss, Yarrut Stich, of New Orleans, for appellee.
This is an appeal from a judgment in favor of the plaintiff decreeing a separation "a mensa et thoro" between the spouses.
The litigants were married in 1920. This suit for a separation from bed and board was filed October 10, 1930. During the ten years they lived together as man and wife, three children, the issue of the marriage, were born. The eldest was 9 years of age and the youngest 5 years of age when this suit was filed. The plaintiff prayed for a judgment of separation from bed and board, for the permanent care and custody of the minor children, for an inventory of the community, and for an injunction restraining the sale of the community property pending the determination of the suit.
Following the joining of issue, by answer, a rule was served upon the defendant to show cause why he should not be condemned to pay alimony to the plaintiff in rule, "pendente lite." The rule was heard and made absolute, and the judgment thereon fixed the amount of alimony to be paid under it at $60 per month, payable in two equal installments, on the 1st and 15th of each month. The case was heard on the merits, and judgment was rendered thereon as prayed for in the petition. The appeal is only from that part of the judgment decreeing a separation from bed and board.
The suit is based upon alleged abuse, cruel treatment, physical violence, and fear. The trial judge found the allegations of the petition were amply sustained by a clear preponderance of the evidence. We have read the testimony, and concur in his findings of fact.
Where the case rests solely upon questions of fact, appellate courts will not disturb the trial judge's rulings thereon unless it appears that they were clearly erroneous. This rule is too well recognized to require citation.
For the foregoing reasons, the judgment appealed from is affirmed, at appellant's cost.