177 So. 793 | La. | 1937
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *662
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *663 On the 11th day of June, 1935, Mrs. Kathleen Van Hoose Snow obtained a judgment of divorce and was allowed alimony at the rate of $40 per month for herself and $20 per month for her two children. She was given the care and guardianship of the children, then twelve and nine years of age. On the 22d day of October, 1935, the defendant, Lee H. Snow, obtained a rule on Mrs. Snow to show cause, on November 6, 1935, why he should not be relieved thereafter of the payment of alimony to his wife. He averred that his net income was then only $175 per month, that he was no longer able to pay the alimony, and that Mrs. Snow had obtained employment, at which she was earning $70 per month. On the 6th day of November, 1935, the rule was dismissed as of nonsuit. On the 17th day of June, 1936, in a summary proceeding brought by Mr. Snow, the judgment by which Mrs. Snow was given the care and guardianship of the *664 children was modified so as to allow Mr. Snow to have the children in his care on alternate Saturday afternoons, from 2 to 6 o'clock, beginning on June 20, 1936.
Mr. Snow paid the alimony up to and including the month of October, 1935, that is, up to the time when he asked to be relieved of the payment of alimony to his wife; but thereafter his payments averaged only the $20 per month for the children. On the 12th of January, 1937, Mrs. Snow filed a petition to have the amount of the past-due alimony determined and fixed, in order that she might have the judgment executed. The delinquent payments then amounted to $595. In defense of the proceeding, the defendant pleaded: First, that Mrs. Snow had disobeyed the judgment allowing him to have the children with him on alternate Saturday afternoons, and had thereby forfeited her right to collect alimony; second, that he was earning only $140 per month, and was not then and had never been able to pay alimony to his wife; third, that he owed certain debts, antedating the judgment of divorce, and certain other debts contracted after the judgment of divorce was rendered; and, fourth, that Mrs. Snow was then and had been for three years employed at a salary of $100 per month, and was receiving royalties amounting to $25 per month from gas wells on an estate owned by her, and was collecting rents amounting to $75 per month, from tenants on the estate. Hence the defendant prayed that the demand for past-due alimony should be rejected, and that he should be relieved thereafter of the payment of alimony to his wife. He made no complaint of the obligation to pay $20 a *665 month for the support of his children. After hearing the evidence the judge gave judgment for Mrs. Snow for the $595, with legal interest from the 12th day of January, 1937, that is, from the date of the filing of her petition; and the judge reserved to Mrs. Snow the right to claim the alimony that had accrued after the filing of her petition. In the judgment, the judge reduced the future payments of alimony to Mrs. Snow, from $40 to $20 a month, from and after the date of the judgment, April 19, 1937. Mr. Snow is appealing from the judgment; and Mrs. Snow, answering the appeal, asks for a reversal of that part of the judgment which reduces the payments of alimony hereafter.
On the trial of the case, the attorneys for Mr. Snow attempted to prove that Mrs. Snow had disobeyed the decree allowing him to have the children with him on alternate Saturday afternoons; and the attorneys for Mrs. Snow objected to the testimony on the ground that it was irrelevant. It is perhaps not necessary to decide whether the objection was well founded, because most of the testimony on this subject was admitted, and it shows that Mrs. Snow did not disobey the judgment. On the contrary, on every Saturday afternoon on which Mr. Snow had the right to have the children with him, Mrs. Snow had them dressed up and waiting to go with their father; but, on many of these occasions, Mr. Snow neglected to call for the children. His attorneys undertook to prove that Mrs. Snow refused to bring the children to his office on the Saturday afternoons in question; but the attorneys for Mrs. Snow objected to the testimony, on *666 the ground that it was irrelevant; and the judge, very properly, sustained the objection, because no such duty was imposed upon Mrs. Snow by the terms of the judgment. The testimony which the judge excluded was not relevant to the issue in this proceeding; i.e., whether Mr. Snow must pay alimony to his wife, and, if so, how much must he pay.
When the attorneys for Mr. Snow undertook to prove that Mrs. Snow had an income of her own, the attorneys for Mrs. Snow objected to the testimony, on the ground that the court had no authority to reduce the alimony which had become delinquent after the judgment was rendered, fixing it at $40 per month. The judge overruled the objection, and heard the testimony, because the defendant was asking to be relieved of the payment of alimony in the future, as well as of the past-due alimony. The testimony, being that of Mrs. Snow herself, which was not contradicted, showed that she was employed at a salary of $75 a month at the time When the judgment of divorce was rendered, fixing the alimony at $40 a month; and that she had been so employed for a period exceeding five months before the judgment of divorce was rendered; and that she continued to be so employed until the 1st day of November, 1935. The period of employment, therefore, had expired at the time of the dismissal of Mr. Snow's rule to have the alimony reduced, November 6, 1935. She was obliged to give up her employment because of trouble with her eyes. She was employed again for nearly eleven months, from March, 1936, to the latter part of January, 1937, during which period Mr. *667 Snow was neglecting to pay the alimony which was due to her. She did not receive any revenue from the land in which she had an interest, because her mother had the usufruct of the property. Mrs. Snow sold her interest in the land to her mother for $1,200; but the price, like the salary which she had earned, went to pay debts which she had contracted for her support and that of her children. She was compelled to go into debt because Mr. Snow abandoned her in 1933, leaving her without any means of support. Assuming, for the sake of argument only, that we should consider the testimony on the subject of Mrs. Snow's income with reference to the past-due alimony, the testimony would not justify a reduction of the past-due alimony.
The testimony tendered by Mr. Snow to show the amount of debts that he had incurred after the judgment of divorce was rendered was objected to, also, on the ground that the judgment was final as to the past-due alimony. The judge overruled the objection because Mr. Snow was asking to be relieved of the payment of future alimony, as well as the past-due alimony. The testimony shows that debts to the amount of $1,547.30 were incurred by Mr. Snow after the judgment of divorce was rendered; but there is no proof that the incurring of these debts prevented Mr. Snow from paying the alimony as it fell due. Assuming, for the sake of argument only, that the testimony on the subject of the debts should be considered with reference to the past-due alimony, the testimony would not justify a reduction of the past-due alimony. *668
When the attorneys for Mr. Snow offered testimony to show that the income from his business did not enable him to pay the alimony as it fell due, the attorneys for Mrs. Snow objected, on the ground that the judgment for the past-due alimony was final, and not subject to reduction on the ground of inability of the defendant to pay the alimony as it fell due. The judge sustained the objection. The ruling was correct, particularly in the light of the defendant's pleadings, and the testimony relating to the question of reducing the future alimony. The allegation, in the defendant's answer to this proceeding, that he was not then, when he filed his answer, and had never been, able to pay the alimony, was merely an expression of opinion or conclusion on his part. His allegation that his income was only $140 a month had reference to what he called his net income, as explained in his testimony. He is the proprietor of an insurance agency, in Shreveport, and depends upon commissions for his earnings or income. When he was called to the stand for cross-examination by counsel for Mrs. Snow, and was asked what his gross income was, he drew a memorandum from his pocket and said that he did not have the gross figures; that he did not have any idea what the gross income from his business had been because he did not keep any books, but he knew that his net income was $140 a month. Afterwards he took the witness stand in his own behalf and repeated that he knew that his net income was $140 a month, but did not have any idea what the gross income from his business was. We do not understand how a man in business can know *669 what his net income is without knowing what the gross income is. Mr. Snow testified that he had two women employed in his office, one permanently and the other only temporarily. We infer that the business was not such a small affair, or so lacking in bookkeeping or system, that the proprietor could not have ascertained, if he desired to ascertain, what was the gross income of the business. He did not give the court any information as to what expenditures he had deducted from his monthly income, in arriving at the result that his net income was only $140 per month. He said that he had married again, and that the expenses of his new household amounted to about $125 per month; but, on cross-examination, it developed that the second wife had means of her own, having an income from rents of property which she owned, and from mortgages which she held, and from an estate which she was heir to. Mr. Snow admitted that his second wife's income was more than $100 per month, and that she was well able to take care of herself; but he said that he did not know how great her income was, or whether it was as much as $300 per month.
When the defendant in a suit for alimony pleads merely that he is unable to pay the alimony, he states only his opinion or conclusion as to how liberal he can afford to be in that respect; and when he states the amount of the net income from his business, and refuses or fails to say what the gross income is, he deprives the court of its authority to pass judgment upon the fairness or propriety of the deductions which he has made. It is the province of the judge, and not of the defendant, to calculate or estimate the net *670 income, from the gross income, of a man's business, in fixing the rate of alimony, in a divorce suit.
The article of the Civil Code, article 160, which authorizes the judge to allow alimony to a divorced woman, limits it to the extent that it shall not exceed one-third of the income of the divorced husband, and declares that the allowance of alimony shall be revocable if it becomes unnecessary, or if the divorced wife remarries. Article
"That failure to obey an order or judgment of Court, when such order or judgment is in effect an order or judgment for the payment of money, shall not be construed as a contempt, if it appears that the failure to obey is due to inability to comply with the order or judgment which inability existed when the order or judgment was rendered."
The title of the statute, as well as the text, makes it plain that its purpose is only to protect the delinquent debtor from being held in contempt of court, if he was unable to pay. The title of the act is "An Act. To carry into effect Article 177, of the Constitution [of 1898], and to limit the power of courts to punish contempts of court." Article 177 of the Constitution of 1898 is retained exactly in the Constitution of 1921, as section 17 of article 19 thus: "The power of the courts to punish for contempt shall be limited by law." To relieve a debtor from the odium of being in contempt of court, or of liability to punishment, for having failed to pay his debt when and as it came due, is a very different thing from releasing him from the debt itself. See State ex rel. Huber v. King, Judge, 49 La.Ann. 1503, 22 So. 887. See, also, Edwards v. Perrault,
"In regard to the contention that the pendency in this court of relator's application for relief from the sentence of contempt prevented the execution of the judgment for alimony against relator's property, it is sufficient to say that the two proceedings are separate and distinct, the one from the other. A judgment debtor for alimony may be proceeded against for contempt of court for not paying the alimony as decreed, and at the same time execution against his property may be issued to collect the amount due."
In Lorson v. Madere,
In Donnels v. Bouillion,
Counsel for the defendant cite and rely upon the decisions in the following cases: Compton v. Airial, 9 La.Ann. 496; Imhof v. Imhof, 45 La.Ann. 706, 13 So. 90; Baker v. Jewell,
"Without expressly approving all that was said in the Compton Case, we may say that, where a judgment allows alimony payable at certain periods, and by reason of insufficient and irregular payments arrears have accumulated so that the amount due is indefinite and cannot be easily ascertained, some proceeding, judicial or otherwise, should be taken to ascertain the amount as a guide to the clerk and as a basis on which the execution can be issued."
In Edwards v. Perrault, however, it was held that there was no necessity for a judicial determination of the amount of the alimony in arrears, before the issuing of the writ of fieri facias, because the defendant had admitted the amount that remained unpaid, in his answer to a rule to show cause why he should not be held in contempt of court, in Perrault v. Edwards,
The only ruling that was made in Imhof v. Imhof, on the subject of alimony, was that this court did not have jurisdiction of an appeal from an order setting aside a writ of fieri facias for the collection of one month's alimony pendente lite, at $45 per month. It was said in the course of the opinion that an order to pay alimony pendente lite was an interlocutory order and was subject to modification at any time; which, of course, nobody disputes.
The decision rendered in Baker v. Jewell is favorable to the plaintiff in this case. Miss Baker and Mr. Jewell were married in New Orleans and established their matrimonial domicile here. Jewell moved to New York and threatened to move to a western state and sue for a divorce. Mrs. Jewell brought suit against him in New Orleans, for a decree of separation from bed and board, and in the suit she obtained an order for the payment of alimony pendente lite at the rate of $100 per month. Service of citation was had by posting the process at the courthouse door, and by serving it upon a curator ad hoc, appointed to represent the absent defendant. Mrs. Jewell obtained the judgment of separation from bed and board, and, ultimately, a judgment of divorce. Meanwhile she had recorded in the mortgage office the order or judgment for the payment of alimony pendente *676 lite at $100 per month. The Hart Land Company, having bought from Mr. Jewell his interest in certain real estate in New Orleans, after the order or judgment for the payment of the alimony pendente lite was recorded in the mortgage office, proceeded summarily to have the order or judgment for alimony canceled in so far as it purported to be a judicial mortgage on the property which the Hart Land Company had bought from Jewell. The Hart Land Company set up two separate and distinct reasons for demanding a cancellation of the judgment in so far as it purported to be a judicial mortgage, viz.: First that the judgment for alimony was a judgment in personam, and was therefore null for want of personal service of citation on the defendant, Jewell; and, second, that a judgment for alimony payable in future installments was not a final judgment and hence, even if valid, could not have the effect of a judicial mortgage. The civil district court held that the suit for alimony pendente lite was only an incident of the suit for separation from bed and board, of which the court had jurisdiction without personal service of citation, and hence that the judgment for alimony pendente lite was a valid judgment; and the court held also that the judgment for alimony pendente lite was a final judgment, as long as it remained unaltered by a judicial decree, and therefore that it had the effect of a judicial mortgage. The Hart Land Company appealed to the Court of Appeal, and that court, in its judgment, pretermitted the question of validity of the judgment for alimony, but held that the judgment did not have the effect of a judicial mortgage because no definite sum *677 could be deemed to be due under the judgment. Hence the Court of Appeal reversed the judgment of the civil district court, and ordered the judgment for alimony canceled in so far as it had the effect of a judicial mortgage on the property which the Hart Land Company had bought from Jewell. Mrs. Jewell brought the case to the Supreme Court on a writ of review; and, on the original hearing, this court reversed the ruling of the Court of Appeal, and reinstated and affirmed the decision of the civil district court, both as to the validity of the judgment for alimony and as to its having the effect of a judicial mortgage. On rehearing, the court adhered to its decision that the judgment for alimony was a judgment in personam, having the effect of a judicial mortgage; but the court held that the judgment for alimony, having been rendered without service of citation on the defendant in person, was null, for the very reason that it was a judgment in personam. In adhering to the decision, on rehearing, that the judgment for alimony was a judgment in personam, the court said:
"We reached this conclusion in our former opinion when we held that a decree for alimony is a judgment for money, subject to appeal, and susceptible of enforcement through a writ of fieri facias."
There is nothing appropriate to this case in Abrams v. Rosenthal. The only question presented in the case was the amount to be allowed as alimony pendente lite, and the court, having determined the amount to be allowed, said, en passant, at the conclusion of the opinion, that a judgment for alimony pendente lite was subject to amendment, and that, if the defendant's income should increase, or if the plaintiff's *678
income should decrease, the plaintiff might obtain relief by applying to the court of original jurisdiction. That, of course, had no reference to past-due alimony. In fact, the case had been before the Supreme Court before, and had been remanded. Abrams v. Rosenthal,
The case of Braud v. Huth was an appeal by a divorced woman, from a judgment condemning the divorced husband to pay $75 a month alimony to his minor child, confided to the care of the mother. This court, finding that the husband's income was then $12,000 per annum, increased the judgment for alimony for the child to $125 a month. But, on an application by the husband for a rehearing, the court amended its decree so that the increase, which this court allowed, in the rate of the alimony, should not have effect previous to the date of the increase. It was observed that the payment of alimony by a father to his child is founded not primarily upon the judgment condemning him to pay alimony, but upon his natural and legal obligation to support the child. Hence it was said that, in cases of need, a judgment for alimony might be made retrospective, thus:
"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 *679 awarding her alimony, but furnishing her with capital; for the $75 per month allowed by the district [court's] 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 theamount contributed had not sufficed to maintain her at all, andthe mother had herself been obliged to furnish necessaries forthe child's support." (The italics are ours.)
In this case, it appears that Mrs. Snow's mother was obliged to contribute to Mrs. Snow's support, while her husband was failing to pay the alimony for which she held a judgment against him. She is not asking for alimony antedating the judgment which allowed her the alimony. She is asking only for the alimony that has accrued since the judgment was rendered. In that respect the case is not like Braud v. Huth. In Curtiss v. Fisher,
In Gallant v. Gallant,
In 4 Tulane Law Review, 660, is an editorial comment on the decision in Gallant v. Gallant, in which the editor concludes that the decision would be wrong if construed to mean that the Civil Code of Louisiana authorizes the court to increase or reduce installments of alimony already accrued.
In Gallant v. Gallant, the Supreme Court of Mississippi, in dealing with the full faith and credit clause, referred to Barber v. Barber,
"First, that, generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments, since, as declared in the Barber Case, `alimony decreed to a wife in a divorce or separation from bed *682 and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.' Second, that this general rule, however, does not obtain where, by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent thatno absolute or vested right attaches to receive the instalmentsordered by the decree to be paid, even although no application toannul or modify the decree in respect to alimony had been madeprior to the instalments becoming due." (The italics are ours.)
In the Sistare Case, however, the Supreme Court of the United States reversed a judgment of the Supreme Court of Connecticut [
"§ 1771. Custody and maintenance of children, and support of plaintiff. Where an action is brought by either husband or wife, * * * the court must * * * give, either in the final judgment, or by one or more orders, made from time to time, before final judgment, such directions *683 as justice requires, between the parties, for the custody, care, education, and maintenance of any of the children of the marriage, and where the action is brought by the wife, for thesupport of the plaintiff. The court may, by order, upon theapplication of either party to the action after due notice to theother, to be given in such manner as the court shall prescribe,at any time after final judgment, annul, vary or modify suchdirections."
The Chief Justice, for the court, observed that, although there was "no decision of the court of last resort of New York dealing with the subject," the true interpretation of the statute was that it did not permit a court that had rendered a judgment for future alimony in favor of a divorced woman to annul, vary, or modify the judgment with respect to installments of alimony that had come due after the judgment was rendered and before application was made for an annulment or modification of the judgment. Speaking of the way in which the authority of the New York courts had been enlarged by section 1771 of the New York Code of Civil Procedure, the court said:
"But in view of the well-settled doctrine prevailing in New York, that no power exists to modify a judgment for alimony, absolute in terms, unless conferred by statute, and the practice of treating the right to collect accrued instalments of alimony as vested and subject to be enforced by execution, * * * we think it becomes quite clear that the mere enlargement of the power of the court so as to permit modification of the allowance for alimony upon the application of the husband did not confer the authority to change or set aside *684 the rights of the wife in respect to instalments which were overdue at the time application was made by the husband to modify the decree."
At another stage in the reasoning, the court went further, and, immediately after quoting that part of section 1771 of the Code of Civil Procedure authorizing a court to "annul, vary or modify" a judgment for alimony, the court had this to say, which is as appropriate to articles 160 and 232 of the Civil Code of Louisiana as it is to section 1771 of the New York Code of Civil Procedure, viz.:
"But it is equally certain that nothing in this language expressly gives power to revoke or modify an instalment of alimony which had accrued prior to the making of an application to vary or modify, and every reasonable implication must be resorted to against the existence of such power, in the absence of clear language manifesting an intention to confer it."
In Weston v. Weston,
Our conclusion is that the district judge, in this case, was right in maintaining that he had no authority to release the defendant from his debt for the past-due installments of alimony. *685
Referring now to the judgment which reduces the future alimony, from $40 a month to $20 a month, our opinion is that if a reduction is to be made, it should go into effect from January 27, 1937, that is, from the time when the defendant asked for the reduction, in his answer to the plaintiff's petition in this proceeding, provided the conditions prevailing at that time were the same as when this proceeding was tried. The judge ordered the reduction to be made only from and after the date of his decree, April 19, 1937. But we are not prepared to say that the defendant is entitled to a reduction of the alimony from and after the time when he asked for the reduction in this proceeding. It is impossible to make a calculation or even an estimate of the net income of a person without any information as to his gross income, or as to the extent or character of the expenditures to be deducted therefrom. We find it necessary, therefore, to remand the case for the introduction of further evidence on the question of reducing the alimony from and after the defendant's demand for it in this proceeding, and for a complete disclosure of his gross income and his expenses.
FOURNET, J., concurs in the decree.
HIGGINS, J., absent.