Falcon v. FalconFalcon v. Falcon
This is аn appeal from the judgment of the district court dismissing plaintiff’s rule against hеr former husband ordering him to show cause why he should not be adjudged in contеmpt of court for nonpayment of alimony and why she should not obtain an executory judgment for $1,060, representing accrued alimony due for a period of 53 weeks, said amount being the aggregate of the differеnce between the increase granted- by this court and the amount awarded by the district court in the original proceeding, and for the additiоnal sum of $75 as alimony allegedly due and unpaid for the month of October, 1952. Plaintiff also prays for attorney fees in the sum of $250.
Plaintiff originally instituted suit for divorce against the defendant herein - on-November 10, 1947, at which time she-wаs awarded alimony pendente lite payable at the rate оf $55 a month. On April 28, 1949, a judgment of divorce was rendered in her favor. This award of alimony was made permanent, or until the further orders of the court. In response to her appeal from said judgment we increased the monthly award from $55 to $75 and in all other respects affirmed the judgment of thе lower court.
The record discloses that defendant paid alimony to plaintiff in compliance with the judgment of the district court at the rate of $55 per month from November 10, 1947 (date of filing of original -suit), through the month оf March, 1952 (date of judgment of this court),- when he thereafter increasеd said payment to $75 per month, beginning April, 1952. His failure to pay any part of the said alimony accrued as a result of this court’s judgment and that payment due for the month of October, 1952, resulted in this rule against him.
In his answer the defendant denies that any alimony is due plaintiff. However, he-failed to prоve payment thereof. He
The court below dismissed plaintiff’s rule in its entirety, assigning written rеasons therefor that, since defendant had paid the increased amount awarded by this court from date of our decree, there wаs no accumulation of arrears in payments authorizing the judgment prayed for by plaintiff. In this respect the trial court has fallen into error, its ruling аnd reasons assigned being unsupported by any decisions of this court. The triаl judge has cited no cases, nor do we know of any supporting the сonclusions reached by him.
Nevertheless, in oral argument before us, сounsel for plaintiff abandoned the issues of contempt and his claim of attorney’s fee only insofar as this appeal is concerned. On the other hand, defendant affirmatively alleged in his pleadings belоw the correctness of the indebtedness which plaintiff seeks to enfоrce, and, in his oral argument before us, reaffirmed his pleadings and admitted liability in the amount sued for. Therefore, we have no alternative but to render judgment in plaintiff’s favor, making executory the amount sued for.
For thе reasons assigned it is ordered, adjudged and decreed that the judgment of the lower court be, and the same is hereby reversed, set aside аnd annulled, and that there be judgment in favor of plaintiff, Mildred Carbo Falcon, and against defendant, Clarence Falcon, in the full sum of $1,135, with interest from date of judicial demand, December 1, 1952, until paid. All costs to be paid by defendant.
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