Perez v. PerezPerez v. Perez
Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for defendantappellant.
Before GULOTTA, STOULIG and MORIAL, JJ.
GULOTTA, Judge.
The husband was granted a judgment of separation on November 24, 1974, on the grоund of the defendant-wife‘s abandonment. Thereafter, a judgment of divorce was granted to the husband based on the fact that he and his wife had been living separate and apart for one year, without reconciliation, following the judgmеnt of separation. The wife appeals. We affirm.
Defendant asserts three assignments of error on appeal. The first is that the petition for divorce is a supplemental petition, asserting a cause of action which has become exigible since the date of the filing of the original petition. According to defendant,
Defendant‘s second assignment of error is that the trial judge erred in maintaining plaintiff‘s exception of no right or cause of action to defendant‘s demand that she be permitted to offer evidence in the divorce proceedings on her freedom from fault. Defendant acknowledges that our Louisiana Supreme Court in Fulmer v. Fulmer, 301 So.2d 622 (La. 1974), concluded that a determination of fault in a separation proceeding bars relitigation of the fault issue in a subsequеnt divorce proceeding when the final divorce is sought on the basis of the parties living separate and apart for one year, without reconciliation, following the judgment of separation. However, it is defendant‘s contention that the Constitution of 1974, effective as of December 31, 1974,2 provides for equal protection and no discrimination based on sex. Defendant claims that on December 31, 1974,
Defendant‘s third specification of error is that the trial judge erred in maintaining the husband‘s exception of no cause of action to the wife‘s request for an increase in the amount of her monthly allowance from $3,000.00 to $5,000.00, payable from the proceeds of the community and remaining in effect until a full settlement of the community has been made. It is defendant‘s contention that in plaintiff‘s motion to terminate alimony, filed in the separation proceeding, plaintiff acknowledged that the community has and continues to have considerable income, one half of which belongs to defendant, and that the community income is more than adequate to allow plaintiff to pay to defendant the sum of $3,000.00 per month from defendant‘s share of the community income.
PROCEDURE
Defendant‘s contention that plaintiff‘s petition for divorce was a supplemental petition, requiring plaintiff, upon motion and reasonable notice, to obtain a court order permitting thе filing of the divorce petition, is without merit. The petition for divorce is not a supplemental petition which is related to or connected with the original cause of action. The original demand is for a separation based on abandonment. The demand for divorce is a new and separate cause of action.
In Wallace v. Hanover Insurance Company of New York, 164 So.2d 111 (La.App.1st Cir. 1964), writ refused, 246 La. 598, 165 So.2d 486 (1964), the court concluded that the insurer‘s defense of “false swearing“, sought to be raised by a supplemental
“A supplemental plеading is one which supplements, adds to or continues the original pleadings. * * *
“. . . the supplemental pleading cannot be used to assert a new cause of action or defense. * * *”
Applying Wallace, supra, to the facts in the instаnt case, we conclude that the petition for divorce is not a supplemental petition, and
It is true that under ordinary circumstances, since the petition for divorce is a new and separate cause of action, plaintiff would be required to file the divorce suit in a separate proceeding, bearing a separate number and requiring allotment. In this connection, plaintiff claims that the Civil District Court for the Parish of Orleans, the 24th Judicial District Court and the 25th Judiciаl District Court all have adopted court rules permitting the filing of a divorce suit, based on a legal separation, in the same proceeding in which the separation suit was filed. However, the court rules were not placed in evidence in the instant matter, and we are unable to take judicial cognizance of them. Trahan v. Petroleum Casualty Company, 250 La. 949, 200 So.2d 6 (1967).
Nevertheless, as any practicing attorney recognizes, it is customary that a petition for divorce, based upon a judicial separation, be filed in the original proceeding. Though we are unable to take judicial cognizance of the court rules, we can appreciate the logic behind the adoption of such a rule. Understandably, in cases involving marital disputes, it is a far better practice for the judge who heard the separation suit and ancillary matters connected with the separation, i.e., alimony and custody, to also consider the divorce action based upon the judgment of separation. Presumably, that judge is familiar with the matters with which he had been confronted in the separation proceeding.
RELITIGATION OF FAULT
We also find no merit to defendant‘s contention that the denial by the trial court of Mrs. Perez‘s demand to rеlitigate the fault issue is violative of the equal protection and sex discrimination provisions of the Louisiana Constitution of 1974.5 The Louisiana Supreme Court in Fulmer, supra, stated:
“. . . that the judicial determination, in the separation proceeding, of the party at fault in the separation bars relitigation, in the subsequent divorce proceeding, of the fault which caused the separation, when such need be determined for the purpose of awarding post-divorce alimony under the code article. * * *”
The Fulmer decision applies equally to the husband and to the wife. We conclude that the 1974 Constitution does not affect the result reached in Fulmer, and that Fulmer is not violative of the provisions of the 1974 Constitution.
Furthermore, even if
DEMAND FOR MONTHLY ALLOWANCE INCREASE
Finally, we reject defendant‘s contention that the trial judge errеd in dismissing, on exceptions, defendant‘s request for an increase in the amount of the monthly allowance to be paid to Mrs. Perez from the proceeds of the community. The trial judge properly held that the question of community incomе was pending in a separate suit for partition of the community assets.
Questions involving the status of the property, i.e., whether separate or community, and the accounting of community income lie within the ambit of the partition proceedings.8 Logically, if no determination has been made as to which property is separate and which property is community, no determination can be made as to the amount of community income to which each party is entitled. This question is more properly considered in the partition proceedings.
Furthermore, it is true, as contended by defendant, that plaintiff did enter into a joint motion agreeing to pay the wife the sum of $3,000.00 per month, payable from the wife‘s share of community income, and stated that the community income was “more than adequate” to allow Perez to pay to his wife the stipulated amount from her share of the community income. However, the joint motion does not state that the wife‘s share of the community income is sufficient to allow payment of $5,000.00 per month.
We point out also that the $3,000.00 monthly allowance is not alimony pendente lite. It is, according to the joint motion and order, an advance to Mrs. Perez from her share of the community income. Therefore, although the divorce decree is silent on payment of alimony or payment of the monthly allowance, the obligation for payment continues after divorce. Presumably, the amount of income to be derived by both parties from the community assets will be finally determined in the partition proceedings. Under the circumstances, we conclude the trial judge properly maintained the exceрtion to defendant‘s demand for an increase in the monthly allowance in the divorce proceeding.
Accordingly, the judgment is affirmed.
AFFIRMED.