98 So. 664 | La. | 1923
Lead Opinion
Plaintiff obtained against her husband, a judgment of separation from bed and board, and after expiration of the year provided by the Code (article 139) sued for a ■ final divorce and for alimony in the sum of $250 per month; but subsequently dismissed1 the latter proceeding. In the meantime, an amicable settlement of the community was reached and reduced to judgment in the court below. Having been given the custody of the two children, a boy and a girl, in the original judgment, she was also awarded alimony in the sum of $150 per month for their support. Later, the son married, and by agreement between counsel for plaintiff and defendant it was stipulated that defendant should pay for the support of the daughter, a child about 12 years old, the sum of $45 per month, which defendant subsequently increased voluntarily to $60.
After the expiration of two years, plaintiff not having seen fit to ask for a final divorce, except in the proceeding which was dismissed, defendant availed himself of the-statute and sued for a final decree. Plaintiff admitted there had been no reconciliation and submitted the matter to the court, but averred that defendant enjoyed an income of $10,000 per year and that she should be allowed alimony in the sum of $250 per month. In an amended answer she attacked the former settlement of the community on the ground of fraud and deception as to the value of- its property, and in reconvention prayed that the judgment based thereon be set aside; that a new inventory be made, and for a just and equitable adjustment. Pleas of res judicata, prescription, and no cause of action were filed. There was judgment for defendant, sustaining the exception of no cause of action, and dismissing the re-conventional demand set up in the amended answer, and, on the merits, granting the husband an absolute divorce.
Orders of appeal, suspensive and devolutive, were prayed for and granted, conditioned upon the wife executing bond as provided by law, and made returnable to this court August 14, 1922. There is nothing to show
On June 21, 1922, plaintiff (wife) filed a rule to increase the alimony which defendant was paying for the support of his daughter from $60 to $500 per month upon the allegation that he enjoyed an income of $15,-000 per year. After trial, the court below fixed the sum to be paid at $75 per month, and from this order plaintiff prosecuted a separate appeal.
For the reasons assigned, the appeal from judgment dismissing the wife’s reconventional demand is dismissed at her cost, as having been abandoned; as to the judgment for alimony for the minor Rosemary Huth, the same is increased to the sum of $125 per month; appellee to pay all costs thereof.
Rehearing
On Application for Rehearing.
By the WHOLE COURT:
1. The acceptance by plaintiff of the sum of $75 per month, fixed by the lower court as alimony for the support of their minor daughter placed in her (plaintiff’s) custody, was not an acquiesence in that judgment, for these reasons; That the judgment was in favor of (or quasi in favor of) the child and not of the mother, and hence the latter had no right, being a mere disburse!- of the allowance, to acquiesce
And again, since there was both a legal and a natural obligation on the part of the father to contribute to the support of his ehilp., the mother would have been recreant to her trust had she refused what the father voluntarily' contributed, and thereby suffered the child to want; the presumption being that the father made such contribution either out of a sense of duty, or in fear of the penal laws (let us hope the former), and not because of the judgment, which was not executory, since plaintiff was appealing therefrom.
But the fact that the father has failed to provide suitably for his child for a time affords no warrant for this court to capitalize the arrears of what he should have contributed over and above what he did contribute, and award them now to the child in one lump sum. That would not be awarding her alimony, but furnishing her with capital; for the $75 per month allowed by the district judgment did suffice for her actual maintenance, even though insufficient to maintain her in the manner in which we think her father should maintain her. The case would be different, if we thought the amount contributed had not sufficed to maintain her at all, and the mother had herself been obliged to furnish necessaries for the child's support.
Our decree is therefore so amended that the alimony shall remain as fixed by the lower court until February 1, 1924; and that the amount awarded by this court shall begin only at that date, and be payable monthly in advance. And with this amendment a rehearing is refused.