Holliday v. HollidayHolliday v. Holliday
On April 26, 1963, plaintiff, Vertie Eagles, nee Leeper, and defendant, Andrew S. Holliday, entered into an antenuptial agreement
On June 25, 1976, plaintiff instituted this action against defendant seeking a separation from bed and board on the ground of cruel treatment and custody of the minor children of the marriage. Additionally, plaintiff sought alimony pendente lite in the sum of $800 per month and child support in like amount. Defendant filed an answer denying the allegations of plaintiff‘s petition and pleading as a bar to plaintiff‘s right to alimony pendente lite the antenuptial agreement executed by the parties. He further reconvened seeking a separation in his favor on the ground of cruеl treatment and custody of the minor children of the marriage. After trial on the merits, judgment was rendered in favor of plaintiff awarding her a separation from bed and board and rejecting defendant‘s reconventional demand. Defendant was ordered to pay to plaintiff alimony pendente lite in the sum of $400 per month and child support for a minor child of the marriage in the amount of $50 per week.
Defendant appealed only that portion of the district court‘s judgment which awarded to plaintiff alimony pendente lite. The court of appeal concluded that the provision of the antenuptial agreement in which plaintiff waived her right to alimony pendentе lite in the event of a judicial separation was a valid and binding agreement and was not against public policy. Hence, it barred plaintiff‘s right to alimony pendente lite. Accordingly, the court amended the lower court‘s judgment so as to delete therefrom the award of alimony pendente lite to plaintiff.1 We granted plaintiff‘s aрplication for certiorari to review the correctness of this decision.2
With respect to antenuptial agreements,
In relation to property, the law only regulates the conjugal association, in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals,[3] and under the modifications hereafter prescribed.
Pursuant to this provision, an antenuptial agreement is valid provided that it is not contrary to good morals or to public policy.
The sole issue presented for our determination is whether the provision of the antenuptial agreement in which plaintiff waived her right to alimony pendente lite in the event of a judicial separation from bеd and board is null and void as against public policy.
Although, under
Art. 119:
The husband and wife owe to eаch other mutually, fidelity, support and assistance.
Art. 120:
The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition. (Emphasis added.)
Although a judgment of separation from bed and board terminates the spouses’ conjugal cohabitation and their community of acquets and gains, where one exists, it does not dissolve the marriage itself nor does it extinguish the obligation of fidelity and duty of support and assistance provided for in
It is the public policy of this state as expressed in the provisions of
We, therefore, conclude that the provision of the antenuptial agreement in which plaintiff-wife waived her right to alimony pendente lite in the event of a judicial separation from bed and board is null and void as against public policy.6 Hence, the court of appeal erred in recognizing the validity of the waiver as a bar to plaintiff‘s right to alimony pendente lite.
Since we are unable to ascertain from the record before us whethеr defendant raised in the alternative the issue of the excessiveness of the alimony award in his appeal to the court of appeal, we must remand the case to that court for further proceedings.
DECREE
For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to that court for further proceedings consistent with the views herein expressed. The costs in this court are assessed against defendant, Andrew S. Holliday.
SUMMERS, J., dissents and will assign reasons.
CALOGERO, Justice, dissenting.
I would affirm the judgment of the Court of Appeal. As correctly stated by the majority the precise legal issue presented here is whether a waiver of alimony pendente lite by a wife in a prenuрtial contract is an agreement against public policy and thereby null and void.
Initially two pertinent factors should be emphasized:
a) the contract under consideration was entered into prior to marriage, i. e. before the parties were contractually incapacitated by their marital status;1 and
(b) the only alimony at issue is alimony pendente lite under
La.Civil Code article 148 .
As there is no question оf the capacity of the parties to enter this contract our attention is focused on the contract‘s subject matter.
“LSA-C.C. Article 2326 provides that an antenuptial contract cannot alter the order of inheritance by the children or posterity of the parties. Article 2327 provides that such a contract cannot derogate from the power of the husband over his wife and children. Article 2392 expressly provides that the parties may stipulate that there shall be no community of acquets and gains. Article 2395 provides that where the parties agree that they shall be separate in property, each contributes to the expenses of the marriage in the manner agreed to in their contract, or, if there be no agreement in the contract, the wife contributes one-half of the expenses of the marriage.”2
Therefore, if the agreement waiving alimony pendentе lite is null and void it can only be so if it is “contrary to good morals”3 or if it is an attempt to “derogate from the force of laws made for the preservation of public order or good morals.”4
In support of relator‘s contention that the contractual stipulation in question is against public order, public good and/or good morals, relator in brief relies upon
“The husband and wife owe to each other mutually, fidelity, support and assistance.”
Relator additionally cites the appellate court decision in Favrot v. Barnes, 332 So.2d 873 (La.App. 4th Cir. 1976) wherein the court questioned the ability of spousеs to “repeal or amend” the mutual marital obligations established by
I disagree with relator‘s contentions and the majority‘s resolution of the issue. Alimony pendente lite is not one of the “mutual” duties of support contemplated by
Neither am I persuaded by relator‘s contention and the majority‘s inference that alimony pendente lite is, in the public interest, essential to avoid a wife‘s becoming a social burden and/or ward of the state. This attitude is a demeaning one which is inconsistent with the realities of the day. It is simply not correct to assume that all, or most, women are incapable of financial independence but must, instead, be wholly dependent uрon either their husbands or the state.
Furthermore, in this case, as in almost all marriages where the spouses have entered into an antenuptial agreement, there is no community of acquets and gains. The wife thus has the same control over her property between separation and divorce as she had prior to sepаration and prior to marriage. An antenuptial waiver by the wife of alimony pendente lite would make the wife no more of a burden on the state than she was prior to marriage. I therefore view alimony pendente lite as a right which is provided for the benefit of the individual and not for the protection of public order and good morals.
Of paramount importance in what would be my resolution to this legal issue is the freedom of parties to contract, which is essential to both our society and system of government. Planiol states in Chapter III of his Treatise on the Civil Law, entitled “Of the Freedom of Juridical Acts,” section 288:
“Here is an outstanding rule of law which is nowhere written in fоrmal terms. Its existence is, however, certain. It runs: all that is not prohibited by law is permitted. Freedom is the rule. Private will is autonomous, with due regard to the limits fixed by law.”
In our jurisprudence the issue appears to be res nova. No prior case until now has conclusively resolved the issue although it has been raised on several occasions.6
Respondent urges reliance upon the case of Nelson v. Walker, 250 La. 545, 197 So.2d 619 (1967) for the result which I espouse here. He contends that that case held a waiver of alimony pendente lite by a wife to be substantively valid. I would find it unnecessary to rely on that decision but would conclude for the reasons I have expressed hereinabove that the waiver of alimony pendente lite by relator-wife was a valid and еnforceable element of the antenuptial agreement between Vertie and Andrew Holliday.7
Therefore, I respectfully dissent.
SUMMERS, Justice (dissenting).
I dissent for the reasons assigned by Mr. Justice CALOGERO.
Notes
The general incapacity to contract between spouses is provided in
“Besides the general incapаcity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as a husband and wife, tutor and ward, whose contracts with each other are forbidden; or in relation to the subject of the contract, such as purchases, by the administrator, of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of the husband, to alienate her dotal property, or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this Code.”
The exception to this general incapacity is provided by
“A cоntract sale, between husband and wife, can take place only in the three following cases:
1. When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.
2. When the transfer made by the husband to his wife, even though not separated, has a legitimate сause, as the replacing of her dotal or other effects alienated.
3. When the wife makes a transfer of property to her husband, in payment of a sum promised to him as a dowry.
Saving, in these three cases, to the heirs of the contracting parties, their rights, if there exist any indirect advantage.”
If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.
“Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.”
Other Civil Code articles relative to prohibited conditions are:
“But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, and is not contrary to the public good.”