164 So. 599 | La. | 1935
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *590 This is a suit by a husband, whose domicile and residence is in the parish of Jefferson, against his wife, a resident of the state of Georgia, for a divorce under the second paragraph of article 142 of the Revised Civil Code, as amended by Act No. 1 of the Second Extra Session of the Legislature of Louisiana of 1934. The petition tracks the statute, and there are annexed to it, as a part thereof, certain documents tending to show the applicability of the provisions of the act and compliance therewith.
The defendant filed a plea that the act was unconstitutional, exceptions of no right or cause of action, and a plea to the jurisdiction of the court ratione personae and ratione materiae. *591
The exceptions and pleas were overruled by the judge a quo and the defendant was allowed fifteen days to file her answer.
She did not file an answer, but, on the fourteenth day filed, simultaneously, an exception of prematurity, on the ground that the two-year period of separation provided for in the statute would have to run from the time it became effective, which exception was not passed upon below, and a rule for alimony pendente lite.
The plaintiff filed exceptions of no right or cause of action to the rule for alimony on the following grounds:
"(A) Because this suit is predicated on article 142, R.C.C., as amended by Act No. 1 of 2nd Extra Session of 1934 which grants only to the plaintiff the remedies and conservatory measures granted by law to married women.
"(B) That the mover in rule is not plaintiff in this suit, and therefore, is not entitled to the remedies and conservatory measures granted by law to married women.
"(C) That, in order to be entitled to the remedies and conservatory measures, such as alimony, even as plaintiff, the wife must show domicile in this state."
The district judge overruled the exceptions and plaintiff then applied to this court for writs of certiorari, prohibition, and mandamus, which were granted, and the matter is now before us for consideration.
While respondent in her return to this court questioned the right of relator to the issuance of the writs, in her brief she *592
states: "* * * That the court might just as well pass on the question of defendant's right to alimony now as later." Of course, the writs were issued under our supervisory jurisdiction and Peeples v. Land,
The returns of the trial judge and the defendant are identical and raise two issues, as follows:
(1) That the exceptions of no right or cause of action to the rule for alimony pendente lite were clearly without merit; and
(2) In the alternative, that the plaintiff was estopped to raise that question, because of the alleged judicial confession that defendant was entitled to alimony pendente lite, which was tendered.
Article 142 of the Revised Civil Code, as amended by Act No. 1 of the Second Extra Session of the Legislature of 1934, reads as follows:
"Whenever a marriage shall have been contracted in this State or elsewhere by parties either of whom are residents of this State and the matrimonial domicile shall have been established in a foreign country or in another state and if the husband shall have abandoned the wife, in the State of said marriage or elsewhere, or shall behave or have behaved towards his said wife in said foreign country or in said other state, in such manner as will entitle her, under our laws, to demand a separation from bed and board, it shall be lawful for her, on returning to the domicile where said marriage was contracted, *593 or to her domicile in this State, prior to said marriage, to institute a suit against her said husband for the purpose above mentioned in the same manner as if the parties were domiciliated in such place, any law to the contrary notwithstanding.
"Whenever a marriage shall have been contracted under the laws of and in this state, and there shall be issue of said marriage, and the husband or wife shall leave this state and secure a divorce in another state through substituted service in such other state, and contract another marriage in another state, of which latter marriage there is no issue, should the said husbandor wife return to this state and remain and live separate andapart for a period of two years from the spouse acquired in said latter marriage, if the other spouse of said first marriage shall have remained single, either the husband or the wife of the latter marriage shall be entitled to immediate divorce upon said facts being established to the satisfaction of the court, provided both of the parties of the said first marriage shall make and execute a sworn affidavit and present same to the court, evidencing their intention to remarry with proof that there is one or more living and dependent minor children, issue of the said first marriage, dependent upon them for support. In such case suit may be filed by either the husband or the wife seeking to secure divorce from such latter marriage at their established place of residence in this state, and such person seeking divorce shall be entitled to secure service on the dependent [defendant] either by personal service or by substituted *594 process through appointment of a curator ad hoc to represent such defendant if absent from the state.
"In such cases an attorney shall be appointed by the Court to represent said absent defendant; the plaintiff shall be entitledto all the remedies and conservatory measures granted by law tomarried women, and the judgment rendered in such case shall have force and effect in the same manner as if the parties had never left the state or were both residents thereof.
"Section 2. Be it further enacted, etc., That all laws or parts of laws contrary to or in conflict herewith, be and the same are hereby repealed." (Italics ours.)
The state has the right through the legislative department to pass laws regulating and concerning marriage, separation from bed and board, and divorce of those residing within its territorial limits.
In the case of Evans v. Evans,
"For Haddock v. Haddock does not deny the fundamentalproposition that each of the states has the right to establish for its citizens, and for all persons subject to its jurisdiction, its own policy and rules and regulations regarding marriage and divorce." (Italics ours.)
In Lepenser v. Griffin,
"We conceive the true rule to be that the actual bona fide residence of either husband or wife within a state will give that state authority to determine the status of such party, and to pass upon questions affecting his or her continuance in the marriage relation, irrespective of the locality of any alleged offense; and that any such court in that state as the Legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions and annul the marriage."
In Mathews v. Mathews,
"We think it is the uniform and consistent jurisprudence of this state that, where both spouses were nonresidents of Louisiana, and the marriage was not contracted in this state, and the cause of action arose prior to the acquisition of a Louisiana domicile by either, the courts of this state will not entertain suits, instituted by either spouse, for separation from bed and board or for divorce."
See, also, Mann v. Mann,
Therefore, all of the general laws on the subject of marriage, separation, and divorce apply to residents or citizens of this state, and all persons subject to its jurisdiction, but not to residents and citizens of other states. *596
Article 142 of the Revised Civil Code, as amended by Act No. 1 of the Second Extra Session of 1934, under the specific provisions of which the instant suit has been brought, is an exception to the general rule of law with reference to separation and divorce. It is a special statute for a particular class of cases where separation and divorce are not otherwise permitted under the general laws of the state.
In Smithers v. Smithers,
"There is only one exception to the rule that a Louisiana court has not jurisdiction of a suit for divorce or for separation from bed and board against a nonresident of the state, for a cause that occurred in another state at the time when there was no matrimonial domicile in Louisiana. The exception to that rule is found in article
"Article 142, making an exception to a general rule, should not be applied to a case to which its applicability is very doubtful."
In Lepenser v. Griffin,
"State may prescribe causes for dissolution as to women who leave husbands and establish domicile in state; authorizing constructive service is not an impairment of contract, divestiture of vested rights, or denial of due process.
"Each state has the right to prescribe the conditions upon which the marital relations *597 of its own citizens shall be created and the causes for and manner in which, by its laws, those relations may be dissolved; and that right extends to women who, having married in other states and having left their husbands for lawful causes, have, ingood faith, established here such separate domiciles as entitlethem to citizenship." (Italics ours.)
Therefore, article 142 of the Revised Civil Code, as amended, being an exception to the general rule, must be considered first by itself, and any limitations placed therein upon the rights, remedies, and conservatory measures of either party to a suit brought under its provisions must be observed and enforced.
Article 148 of the Revised Civil Code, as amended by Act No.130 of 1928, providing that alimony shall be allowed the wifewhether appearing as plaintiff or defendant, if she be without sufficient funds to maintain herself during the pendency of the suit for separation or divorce, is a general rule of law relating to separation and divorce proceedings affecting residents or citizens of this state or those within its jurisdiction. Consequently, articles 142 and 148 have no relation to each other, except as specifically provided for in the special law or article 142.
Returning now to the language of article 142, as amended by Act No. 1 of 1934 (2d Ex.Sess.), it will be observed that the first paragraph was not amended. Article 142 of the Revised Civil Code of 1870 consisted of one paragraph composed practically of the first and third paragraphs contained in the statute of 1934. *598 This article was amended by the Legislature when it adopted Act No. 113 of 1920, which placed a two-year prescriptive period on the wife's right to return and establish her residence and domicile here, for the purpose of instituting proceedings under this article, and added "abandonment" as an additional cause for separation from bed and board.
The act also amended the article by adding to the last line thereof the words "or were both residents thereof," and also by dividing the article into two paragraphs.
In 1934, the Legislature again amended the article by eliminating the two-year prescriptive period placed therein by the act of 1920, added paragraph 2, a new and distinct cause or ground for divorce, and changed the position of paragraph 2 under the article as amended by the act of 1920, so as to immediately follow the newly added paragraph 2.
Since its introduction by Act No. 9 of 1855, the provisions of the first paragraph of article 142, R.C.C., as amended, have been the law of this state. It was designed for the purpose of giving a woman, who was a resident or citizen of this state, a right to secure a separation from bed and board from her husband, who had mistreated her in another country or state where they had lived, when the marriage had been contracted in Louisiana, and she returned to her domicile in this state and there instituted suit against her husband.
The second or new paragraph creates an additional and new ground for divorce and grants to either the husband or wife, *599 under the specific circumstances enumerated therein, the right to institute the suit, whereas, under the language of the first paragraph of the statute, only the wife can be the plaintiff. Under the provisions of both the first and second paragraphs, the plaintiff must necessarily have returned to his residence or domicile in this state, as a condition precedent to the right toinstitute the suit, stand in judgment, and the right to be granted the separation or divorce. Two of the requirements of the statute of 1934, in creating the new grounds for divorce, arethat the husband or wife must have returned to this state andmust have lived separate and apart from the other for a period oftwo years.
Personal and substituted service of process are provided for in the closing sentence of paragraph 2 of the act of 1934.
Paragraph 3, which deals exclusively with suits against absent defendants and provides for service of process through an attorney appointed by the court, and contains the express language that "the plaintiff shall be entitled to all theremedies and conservatory measures granted by law to marriedwomen," follows paragraph 2. (Italics ours.)
Section 2, or the last paragraph of the statute (Act No. 1 of 1934, 2d Ex.Sess.), is the general repealing clause.
It is significant that the Legislature, in retaining paragraph 2 of article 142, as amended by Act No. 113 of 1920, changed its position from following the first paragraph dealing with cases of abandonment and cruel treatment, and made it follow the provisions creating a new or additional *600 ground for divorce contained in paragraph 2 of the act of 1934.
If it had been the intention of the Legislature to have paragraph 3 of the act of 1934 apply only to cases arising under the provisions of paragraph 1 of that act, there would have been no necessity to change its position. This is made clear when it is noted that the concluding sentence of paragraph 2 of the act of 1934 specially provides for service of process on a curator ad hoc in the event the defendant is absent from the state. We, therefore, conclude that it was the intention of the Legislature that paragraph 3 of the act of 1934 should apply equally to cases arising under paragraphs 1 and 2 of the statute.
It appears to us that it was no mere accident that the Legislature made this change in the position of that particular paragraph and that it had a purpose in doing so. If plaintiff were a woman who lived in Louisiana, married here, and went to live with her husband in another state or country, where he abandoned her, or mistreated her, and she asserted a cause of action under the provisions of the statute, or, if she alleged a case under the new or second paragraph of the act, but made theallegation in her petition that she had not returned to herresidence or domicile in this state, or the place where themarriage was contracted in Louisiana, except to bring the suit, the court would be powerless to grant her a separation from bed and board, or a divorce, or any of the remedies or conservatory measures incidental to such suits, because bona fide residence *601 in Louisiana, by the plaintiff, is sacramental under the statute, to vest any rights in the plaintiff and to give the court any authority to act.
In the case of Hyman, Lichtenstein Co. v. Schlenker Hirsch, 44 La.Ann. 108, at pages 111, 120, and 122, 10 So. 623, 624, we find the following:
"This appeal presents for our determination a contest between the attaching creditors of a non-resident debtor and the non-resident wife of the debtor, who claims the property attached by virtue of a dation en paiement made to her by her husband while they were both non-residents of Louisiana, and domiciled in the state of Mississippi. * * *
"These funds, though accruing to the wife in Louisiana, were received by her as a citizen of Mississippi, and her rights thereto were governed by the law of Mississippi. They never acquired the character of paraphernality under the laws of Louisiana, and the husband's conversion of them subjected him only to the liability imposed by the law of the domicile.
"It is urged, however, by the learned counsel for the wife, that these general principles are controlled by the special provisions of article 2437 of our Civil Code, which is as follows:
"`Whenever a marriage shall have been contracted in this state, and the husband after said marriage shall remove, or shall have removed, to a foreign country with his wife, if the husband shall have behaved towards his wife in such foreign country in such a manner as would entitle *602 her, under our laws, to demand a separation of property, it shall be lawful for her, on returning to the domicile where her marriage was contracted, to institute a suit there against her husband, for the purpose above mentioned, in the same manner as if they were still domiciled in said place. In said case, an attorney shall be appointed by the court to represent the absent defendant, the plaintiff shall be entitled to all the remedies and conservatory remedies granted by the law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the state.'
"We are of the opinion that this article is inapplicable for two reasons:
"(1) The wife here has not returned `to the domicile where her marriage was contracted,' within any reasonable intendment of the law. It is true she came to Louisiana and accepted this dation, and returned immediately to her domicile in Mississippi.
"The law obviously means a return to the domicile for thepurpose of living there under the protection of its laws, and was intended only to dissolve the community, which articles 2399 and 2400, Civil Code, extend in favor of non-residents, and to protect her property and her future earnings from control or interference by her husband. This is rendered more clear by reference to the origin of the article. It is taken from Act No. 9 of 1855, which is as follows:
"`That, whenever a marriage shall have been contracted in this state, and the husband, after such marriage, shall remove, *603 or shall have removed, to a foreign country with his said wife, and shall behave, or have behaved, towards his wife in said foreign country in such a manner as would entitle her, under our laws, to demand separation from bed and board, or a separation ofproperty, it shall be lawful for her, on returning to the domicile where her marriage was contracted, to institute a suit there against her husband for the purposes above-mentioned, in the same manner as if they were still domiciliated in said place,' etc.
"The compilers of the Code of 1870, in distributing these provisions to their appropriate headings, separated the provisions relating to separation from bed and board and those relating to a separation of property into two distinct articles, viz., the above article 2437 and article 142. But these articlesmust still be construed together, and it is apparent that the same kind of removal to the former domicile is required to support an action for separation of property as to support one for separation from bed and board, and consequent divorce. It would hardly be supposed that a married woman domiciled in Mississippi could run over into the state of Louisiana for a day, without any intention of remaining here, or resuming her residence, institute an action for a separation from bed and board leading to divorce, return instantly to her Mississippi domicile, and claim a decree in such a case that any court in christendom would grant or respect. We had occasion recently to consider the rights of a married woman in such a case, and the limitations upon her right to invoke the jurisdiction of her *604 original matrimonial domicile. Smith v. Smith, 43 La.Ann. 1140, 10 So. 248.
"No such case was contemplated by the law, which only intended to extend its protection to women married here, whose husbands, domiciled in another country, had so mistreated them as to justify them in leaving the matrimonial domicile, and in returning to their former homes, to live under and to receive theprotection of its laws. * * *
"The only proper pertinency of this statute is to demonstrate that, outside of its exceptional provisions, the views we have herein expressed are correct, and that non-resident marriedwomen, though their marriage took place in this state, had not,independently of the statute, the right to bring an action for separation of property in this state, or to avail of similar relief extended by our laws in the protection of our own marriedwomen." (Italics ours.)
Under the above recited hypothetical case, the court would not have any jurisdiction ratione materiae, and plaintiff could not recover alimony pendente lite in that proceeding. Peeples v. Land,
It is said that the defendant nonresident wife is entitled to alimony pendente lite, whether she appears as plaintiff or defendant, because article 148 of the Revised Civil Code, as amended by Act No. 130 of 1928, does not expressly limit the benefits of its provisions to residents of this state. Neither does it expressly extend its provisions to nonresidents. However, article 142 of the Revised Civil Code, as amended, does limit the right to the benefits of its provisions to those who reside in this state and expressly confers jurisdiction upon the courts of this state, because of the fact that the plaintiff in the suit is a resident of Louisiana. It further expressly limits the remedies and conservatory measures granted by law to married women, to the plaintiff in suits filed under that statute. In other words, the legislative limitation on remedies and conservatory measures incidental to the main demand in favor of the plaintiff, who is required to be a resident of Louisiana, is equivalent to the limitation of the right to *606 be asserted through such remedies and conservatory measures.
In the case of Union Cotton Manufactory v. Lobdell, 7 Mart.(N.S.) 108, the plaintiffs sued defendant on a promissory note and he pleaded prescription of five years. In affirming the judgment of the district court, and overruling the plea of prescription, the court said:
"The law invoked to support the plea of prescription in the present case, on which the defendant mainly relies, is found in the 3505th article of the Louisiana code. It prescribes actions founded on instruments similar to that on which this suit is instituted, by the lapse of five years, to be reckoned from the day when they were payable. Previous to the promulgation of the code the prescription or limitation of actions like the present was thirty years. The arguments used by the counsel for the defendant in favor of this peremptory exception, have for their foundation the differences between the force and effect of laws relating to legal remedies and those which relate to rights; and a supposed distinction which should be recognized in the application of the former class to contracts made under the operation of foreign laws. It is difficult to perceive anysubstantial difference between a law which should attempt todestroy a right by taking away entirely the remedy by which itmight have been enforced, and one which should attack directlythe right itself. They would, in our opinion, be equally unjust, and violate in the same degree the rule of interpretation, which denies to all laws a retroactive *607 effect, to the prejudice of rights previously acquired." (Italics ours.)
The argument that, if we interpret the law to mean that only a plaintiff can enjoy the remedies and conservatory measures, would lead to the absurd conclusion that a husband, as plaintiff, could claim alimony from his wife is without merit, since the wording of the statute is that plaintiff shall have the remedies and conservatory measures of a married woman. The only sensible construction that can be placed upon the language is that, if the wife is the plaintiff, she shall have the benefit of those remedies and measures, because she has established her residence in Louisiana, otherwise, she will not be entitled to them, because she has not availed herself of our law by remaining out of the state. Furthermore, the general law makes no provision for a man to recover alimony from his wife in a separation or a divorce case.
In Lemonius v. Mayer,
"A primary rule of construction is that the legislature must be assumed to have meant precisely what the words of the law as commonly understood import, and this may be said to be the fundamental and controlling rule of construction."
In 59 C.J. 945, quoted under note 55, and cited from Ætna Life Ins. Co. v. Otis Elevator Co. (Test Case) (Tex.Civ.App.)
"Courts are not authorized to extend scope and application of statute merely because there is apparently no reason why *608 right given in one case should not have been given in another."
In Hurry v. Hurry,
"Act 269, 1916, p. 557, adds the fifth ground for divorce, namely, when married persons have been living separate and apart for a period of seven years or more. * * *
"The language of the act is clear and free from ambiguity. It says:
"`That when married persons have been living separate and apart for a period of seven years or more,' etc. This language can convey but one meaning to the mind. If, as contended for by defendant, the Legislature meant to say that the period of seven years or more referred to in the act was to be after the passage and the promulgation of the act, the language would have been different. The court cannot add the words `after the promulgation of this Act.'"
See, also, Hava v. Chavigny,
But it is said that to interpret article 142, as amended, so as to deny a nonresident defendant wife alimony pendente lite would be inequitable and harsh.
Article 120 of the Revised Civil Code provides:
"The wife is bound to live with her husband and to follow himwherever 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." (Italics ours.) *609
Under article 142, as amended, the wife had a period of two years within which to comply with this requirement of the article. If she does not obey the mandate of the law, the statute in question in effect prescribes her right to return, because of her failure to join her husband, in violation of her obligation to do so. The law of this state simply requires of the wife that she present herself at the Louisiana domicile of the husband and demand that he receive and support her. If he refuses to receive her, the state places at her disposal, for her protection, all of the general laws of the state, including the remedies and conservatory measures granted by law to the married women who reside in this state. Clark v. Clark,
It is not unreasonable to require of a nonresident wife that she present herself at the domicile of her husband in this state and request him to receive her (this also being required of resident married women), as indicative of her desire to have her status determined by the state of Louisiana, in conformity with its laws. Defendant in her rule for alimony does not allege that she ever came to this state with the desire of establishing her residence here, or reconciling with her husband, and, in fact, in this proceeding, as well as a former one, Peeples v. Land, supra, it appears that she failed to comply with article 120 of the Revised Civil Code, although she alleged that her husband abandoned her in Georgia, and attempted to have the court compel him to return to his former matrimonial domicile in Atlanta, Ga. *610
Courts are not concerned with the wisdom of a legislative act, for they must construe its provisions as they are written. A mere reading of the amendment to article 142 of the Revised Civil Code shows that the members of the Legislature had in view the reconciliation of the divorced spouses to the first marriage, where there was offspring therefrom, and an estrangement between the spouses to the second marriage for two full years and no issue of the second union and no reconciliation. This is obviously sound public policy, wholesome and salutary, because it reconciles and unifies a family group where there are children, and the state is vitally interested in their welfare. In order to accomplish this laudable purpose, the Legislature required the father to support his offspring of the first marriage, and an affidavit by the wife of the first marriage that she had not married a second time, but was ready and willing to remarry her divorced husband and father of her children. This means that the father is placed in the position where he has the serious responsibility of maintaining, supporting, and educating his children and is about to voluntarily assume the like responsibility with reference to his first wife. If the nonresident wife, who was so utterly lacking in interest in her husband, that she has not lived with him for two full years, is to be granted alimony pendente lite, unless the husband has a splendid income, the whole practical purpose of the new part of the statute will be defeated, as it would be most difficult to support them all and not inviting and encouraging for him to make *611 the attempt, if the law placed upon him such a burdensome responsibility.
There is no legal reason why a wife, who, without just cause, violates her marital vows in refusing to live with her husband, should be supported and maintained by him. Act No. 34 of 1902; article 120, Rev.Civ. Code; Cyclopedia of Law and Procedure, vol. 14, pp. 746, 747.
In order to grant the defendant wife alimony pendente lite in a suit brought by the husband under the provisions of article 142, Rev.Civ. Code, as amended, it appears to us that we would have to add to the act the words "the wife either as plaintiff or defendant," shall have a right to all of the remedies and conservatory measures granted to married women who are residents of this state. This is contrary to the clear provisions of the act. We have no right to add language to a statute under the guise or pretense of interpreting its unambiguous provisions.
It is our opinion that the defendant nonresident wife is not entitled to the remedies or conservatory measures contained in the general law, which includes article 148 of the Revised Civil Code, as amended, providing for alimony pendente lite, because article 142, Rev.Civ. Code, as amended, a particular law and an exception to the general rule, does not give the nonresident defendant such a remedy, and the courts are powerless to supply it.
The alternative plea of estoppel is based upon the fact that the plaintiff in his petition filed on January 18, 1935, alleged that, *612 while his wife was not entitled to alimony, since she was earning $65 per month, he, nevertheless, tendered $35 a month, as alimony pendente lite, which was placed in the registry of the court.
After all of the defendant's pleas and exceptions had been overruled on April 4, 1935, and she was allowed fifteen days to answer, she did not do so, but, on April 18, 1935, filed a rule for alimony pendente lite for $150 per month, with full reservation of her pleas and exceptions which were overruled, including the one challenging the jurisdiction of the court ratione materiae. In the meantime, she had refused to accept the $35 a month deposit for alimony, and, on April 26, 1935, the plaintiff amended his petition, alleging that through error of law and fact he had tendered the $35 per month for alimony, when his wife was not entitled to it, as she had been maintaining herself for two years prior to the institution of the suit and had an independent income which she was still receiving.
Plaintiff also filed a motion to withdraw the $140 which had accumulated as a result of the monthly deposits. The judge declined to enter an order allowing the withdrawal of the funds.
When the rule to fix alimony pendente lite was called for trial on May 9, 1935, plaintiff interposed the exceptions of no right or cause of action hereinbefore explained, and the district judge overruled them.
Article 2291 of the Revised Civil Code reads as follows: *613
"The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
"It amounts to full proof against him who has made it.
"It can not be divided against him.
"It can not be revoked, unless it be proved to have been made through an error in fact.
"It can not be revoked on a pretence of an error in law."
The interpretations placed upon this article by this court, while not uniform and clear in some respects, are consistent in that it must be shown that the party litigant has relied upon the judicial confession to his prejudice, before a plea of estoppel will be maintained.
In the case of Farley et al. v. Frost-Johnson Lumber Co.,
"Finally, in the recent case of Nora Coleman et al. v. Jones
Pickett, [
In the case of Imhof v. Imhof, 45 La.Ann. 706, 13 So. 90, the court held that judicial admissions would be considered *614 waived or renounced unless insisted upon through a plea of estoppel by the party in whose favor they were made.
In the instant case the record shows that the defendant in no way relied upon the plaintiff's allegations, but repudiated them. She declined to accept the alimony tendered and interposed no objection to the plaintiff amending his original petition, by stating that he had offered the alimony pendente lite through error of law and fact. The trial judge entered the proper order permitting the filing of the supplemental and amended petition and all of this was done before the defendant filed any answer, which the record discloses she has never filed. She filed a separate rule against the plaintiff with full reservation of all of her previously overruled exceptions and pleas, and particularly as to the jurisdiction of the court ratione materiæ, and prayed that the plaintiff be condemned to pay her $150 per month alimony pendente lite. There is nothing stated in this rule about the plaintiff being estopped to deny liability for alimony. In response to this rule, the plaintiff squarely placed at issue the right of defendant to alimony, by his exceptions of no right or cause of action.
The right to alimony pendente lite is not an absolute one in favor of the wife, for she must show that she comes under the law which would entitle her to it. Even in the cases where she has been granted alimony, it is subject to revision by the court from time to time, as the circumstances of the parties change. Ramos v. *615
Ramos,
The allegations of the plaintiff's petition, in substance, are that the wife is not entitled to alimony, because she has a separate income sufficient to maintain her in her usual position in life, but that plaintiff tendered $35 per month, as alimony pendente lite. It is obvious that this statement involves both questions of fact and conclusions of law. Plaintiff might well have made an error in fact in stating that his wife enjoyed sufficient income for her maintenance pending the suit. The statement that she was not entitled to alimony was a conclusion of law.
The codal article expressly provides that the judicial confession cannot be divided against him. Defendant is seeking to divide the judicial admission by taking advantage of the part that is beneficial to her and repudiating the part that she considers is unfavorable to her. On the question of liability for alimony, she would have the court hold that his (plaintiff's) allegation estopped him from contesting that point, but, as to the amount to be awarded, his statement that $35 per month is adequate is to be rejected. We do not believe that defendant is entitled, under the express provisions of the article, to have the court make such a ruling.
It is our opinion that the contention that the plaintiff is estopped by the alleged judicial confessions is untenable.
Relator, in his application for writs to this court, prayed that the district judge be directed to enter the proper order for *616 the withdrawal of $140 tendered as alimony pendente lite and deposited in the registry of the court. In view of our above conclusions, he is entitled to this relief.
For the reasons assigned, the judgment of the district court is annulled, the rule nisi made absolute, and the writs perpetuated, the exceptions of no right or cause of action are maintained, and the rule filed by the defendant wife, for alimony pendente lite, is dismissed, and the trial judge directed to enter the proper order authorizing the withdrawal of $140 from the registry of the court, to be paid to the plaintiff herein; plaintiff to pay the costs of this court.
ROGERS and ODOM, JJ., dissent.
O'NIELL, C.J., dissents and will hand down reasons.
LAND, J., recused; BOND, J., sitting by appointment.
Dissenting Opinion
The defendant, in her prayer for alimony pendente lite, does not rely upon any provision in article
"If the wife has not a sufficient income for her maintenance pending the suit for *617 separation from bed and board or for divorce, the judge shallallow her, whether she appears as plaintiff or defendant, a sumfor her support, proportioned to her needs and to the means of her husband." (The italics are mine.)
The expression, "the judge shall allow her, whether she appears as plaintiff or defendant," leaves no room for interpretation, as to whether the wife must be the plaintiff, in order to have an allowance for her support during the pendency of a suit for divorce, or for separation from bed and board. Before this article of the Civil Code was amended by Act No. 130 of 1928, it did not contain the clause "whether she appears as plaintiff or defendant," but it did contain a paragraph to the effect that the wife would not be entitled to alimony pendente lite unless she resided continuously in the house assigned to her by the judge. The deleting of that paragraph, by the act of 1928, has as much significance as the adding of the clause "whether she appears as plaintiff or defendant." The effect of the amendment is to give to the wife, "if the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce," the absolute right to an allowance for her support, whether she is the plaintiff or the defendant in the suit, and wherever she resides, so long as she is either actually or constructively within the jurisdiction of the court. The article is founded upon the obligation of the husband to support his wife as long as the marriage remains undissolved. The right of the wife in that respect is so zealously protected *618
that she may demand that the husband shall support her even during the pendency of a suit for annulment of the marriage. See State v. Loyacano,
"This court has interpreted R.C.C. art. 148, as amended, to be mandatory in character, and enforceable so long as a suit for separation from bed and board [or divorce] is pending in the courts, whether in the court of original jurisdiction or in the appellate court. * * *
"It is a well-recognized and accepted rule in this state that, as long as the relation of husband and wife exists, the husband *619 is under a legal obligation to support his wife, and the relation of husband and wife can be terminated only by death or a final decree of a competent court."
When the case of Brouilette v. Mallet,
There is nothing whatever in article
The only basis for the husband's pleading, in this case, by way of demurrer, or exception of no cause or right of action, that his wife has no right to an allowance for her support during the pendency of this suit, is the erroneous idea that a wife's right to alimony pendente lite is not a right, but a remedy, orconservatory measure. That error is repeated in every paragraph of the demurrer; which is quoted literally in the prevailing opinion in this case.
The defendant pleads that his wife is not entitled to alimony pendente lite "because this suit is predicated on article 142 R.C.C., as amended by Act No. 1 of the Second Extra Session of 1934, which grants only to the plaintiff the remedies andconservatory measures granted by law to married women." (The italics are mine.) Then it *620
is pleaded "that the mover in rule [the wife] is not plaintiff in this suit, and, therefore, is not entitled to the remedies and conservatory measures granted by law to married women." And so it is reasoned out that, as the right to alimony pendente lite is aremedy or conservatory measure, and, as article 142 "grants only to the plaintiff the remedies and conservatory measures granted by law to married women," and, as the wife in this instance is not the plaintiff in the suit, ergo, she is not entitled to alimony pendente lite. All of which philosophizing is founded upon the false premise that the right to alimony pendente lite, or the right of the wife to demand an allowance for her support during the pendency of a suit for divorce or for separation from bed and board, is not a matter of right, but is one of the remedies or conservatory measures referred to in the declaration in article
The theory and the reasoning in the plaintiff's demurrer in this case is adopted in the prevailing opinion. In the opinion it is said (
"Therefore, article 142 of the Revised Civil Code, as amended, being an exception to the general rule, must be considered first by itself, and any limitations placed therein upon the rights,remedies and conservatory measures of either party to a suitbrought under its provisions must be observed and enforced." (The italics are mine.) *621
I have italicized the clause which, obviously, means that the granting to the plaintiff only, in a suit brought under article
It is said in the prevailing opinion in this case (
As I have said, the fallacy in the plaintiff's plea, that his wife is not entitled to alimony pendente lite because she is not the plaintiff in the suit, is in the confusing of rights withremedies and conservatory measures. A remedy is the corollary of a right. If a right were itself a remedy, there would be no meaning in the maxim that for every right there is a remedy. The Civil Code itself, in article 230, defines alimony as a right, a substantial right, and not a remedy or conservatory *623
measure, viz.: "By alimony we understand what is necessary for the nourishment, lodging and support of the person who claims it. It includes the education, when the person to whom the alimony is due, is a minor." Surely, the right to "what is necessary for the nourishment, lodging and support" of a person is not a remedy or conservatory measure. Ballentine's Law Dictionary defines "remedy" as "the means by which the obligation or the corresponding action is effectuated," and the author adds: "The `remedy' is to be distinguished from the `cause of action,' and also from the `relief sought.'" Webster's New International Dictionary defines the word "remedy," in its law sense, as "the legal means to recover a right, or to prevent, or obtain redress for, a wrong." The same author defines the word "conservatory" as "having the quality of conserving or preserving." The word has reference to the conserving or preserving of an estate, or property, not a wife or child. The same authority defines "measure," in its law sense, as "a means to an end." I assume that the redactors of article
As a matter of fact, the third paragraph of Act No. 1 of the Second Extra Session of 1934, which was the second paragraph of article
"In such cases an attorney shall be appointed by the Court to represent said absent defendant; the plaintiff shall be entitled to all the remedies and conservatory measures granted by law to married women, and the judgment rendered in such case shall have force and effect in the same manner as if the parties had never left the state or were both residents thereof."
That paragraph was in the article of the Civil Code before it was amended by the act of 1934, and was appropriate to a suit brought under the first paragraph of the article. These two paragraphs are retained, word for word, in the article as amended by the act of 1934. The only change made by the act of 1934 is the insertion, between the two original paragraphs, of the cause of action for a divorce, on the ground of separation for two years, under the conditions specified in the new paragraph. Before the article was amended by the act of 1934, it gave only to a married woman who formerly resided in this state and had had a matrimonial domicile in this state the right to *625
sue her husband residing in another state, for separation from bed and board, for a cause of action arising outside of the state, and by service of citation upon an attorney appointed to represent the nonresident defendant. In order for the wife to have such a right of action, she must return to the place where the marriage was contracted in this state, or to her former domicile in this state, with the intention of residing here. The same rule applies to an action by the wife for separation of property, against a nonresident husband, under the provisions of article
Putting aside the fact that the term "remedies and conservatory measures" does not mean alimony pendente lite, I have said that the third paragraph of the act of 1934, which was the second paragraph of article 142 before it was amended by the act of 1934, is not appropriate to the second paragraph of the act of 1934. In the first place, it is not appropriate to say, "In such cases an attorney shall be appointed by the Court to represent said absent defendant," because the second paragraph of the act of 1934 declares that "such person seeking divorce [which is obtainable only under this new paragraph] shall be entitled to secure service on the dependent [meaning defendant] either bypersonal service or by substituted process through appointment ofa curator ad hoc to represent such defendant if absent from thestate." (The italics are mine.) Why, after that statement, should the Legislature say, "In such cases an attorney shall be appointed by the Court to represent said absent defendant"? (The italics are mine.) The appointment of an attorney to represent the absent defendant was, and is yet, necessary in a suit brought under the first paragraph of article
It is said in the majority opinion in this case (
It is said in the majority opinion in this case (
It is said in the majority opinion in this case (
In the majority opinion in this case (
In the majority opinion in this case (
"A primary rule of construction is that the legislature must be assumed to have meant precisely what the words of the law as commonly understood import, and this may be said to be the fundamental and controlling rule of construction."
I respectfully submit that, if we apply that rule to articles 142 and 148 of the Civil Code, as amended, and if we take the words "remedies and conservatory measures" in the sense in which they are "commonly understood," the defendant in this case is entitled to alimony pendente lite.
I concede that the so-called "judicial confession" which the plaintiff made in his original petition and in his supplemental petition, in this case, to the effect that the defendant was entitled to alimony pendente lite, does not have the effect of an estoppel. The allegation was merely an interpretation of the law on the subject. But I consider it worthy of consideration that *633 the plaintiff's first impression, or that of his attorney, in bringing this suit, was that Act No. 1 of the Second Extra Session of 1934 was not intended to deprive the defendant of her right to alimony pendente lite, under article 148 of the Civil Code.
