Whitt v. VauthierWhitt v. Vauthier
This case is a sequel of Whitt v. Vauthier, 295 So.2d 235 (La.App. 4th Cir. 1974), writ refused La., 299 So.2d 793. There the wife successfully appealed from a judgment finding her at fault and thus not entitled to alimony under
A counter motion was filed by the divorced wife seeking to make past due alimony executory in the amount of $4,025 based upon $175 per month from November 13, 1972, through September 13, 1974.
The trial judge rejected the husband‘s contention that
With respeсt to the divorced husband‘s attack on the constitutionality of the statute, we have the benefit of a recent decision in Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), certiorari denied by the United States Supreme Court, 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87. The reliance of the husband on Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1972), is the same as that placed on these cases by the appellee in the Murphy case. We agree with the rationale of the Georgia Supreme Court in analogizing the issue here to that disposed of by the Supreme Court of the United States in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L. Ed.2d 189 (1974), in whiсh a Florida statute giving widows a $500 exemption from property taxation was held to be constitutional even though the same benefit was not conferred on widowers. Likewise, we find the instant case distinguishable from Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514, 73-1892 on the docket of the Supreme Court of the United States which struck down
Although the issuе was not specifically raised by the husband we have also considered whether
“No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.”
The pertinent part of
“When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when: . . .”
We note at the outset that the instant case raises the constitutional validity of this statute from an oblique point of view. We have here a needy wife who therefore qualifies for alimony under the article, a husband who has the “property and earnings” out of whiсh alimony can be paid, and he complains that the statute is unconstitutional because it places an obligation upon male spouses but no express like obligation upon female spouses. It seems that the question would be more effectively and reasonably directed if this were a case where a husband had shown that he had not sufficient means for his support and was seeking alimony from the property and earnings of a wife. In the passage of
His argument is based on the theory that the existence of
When the Legislature saw fit to provide for divorce in 1827 and for the remedy to the needy divorced wife it was responding to conditions and customs which prevailed at that time. It seems tо us that there was no intention on the part of the Legislature to foreclose against needy husbands by the passage of that act, but in that day and time the problem of the needy husband was simply not envisaged by the Legislature. The relative positions of men and women in that society were such that the case of the needy husband seeking alimony from his wife was so rare, and pеrhaps would have been so bizarre, that the Legislature did not provide a statutory remedy for that situation. Conditions were much the same in 1855 when the Act of 1827 was re-enacted, and in 1870 when the present Civil Code was adopted. Thus, we know that alimony for the divorced husband was once available by virtue of a positive statute in the Code Napoleon, we know that the Legislaturе has by positive enactment provided for alimony for divorced wives, there has never been a positive legislative statement to the effect that divorced husbands cannot claim alimony, and in our research of the jurisprudence we find no case where the husband has been denied or has even applied for alimony after a divorce. We have concluded therefore that the courts may, in the appropriate case and consistent with sound Civilian principles award alimony to a divorced husband, and therefore the existence of
There is merit to the wife‘s answer to the appeal. This case came to the trial court on a rule to make past due alimony executory pursuant to
“The only remedy available to a father to relieve himself of the obligation of paying child support imposed by a judgment is by proceeding to have the judgment amended, suspended or terminated. Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (1953); Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4 Cir. 1971); Hebert v. Hebert, 159 So.2d 537 (La.App. 3 Cir. 1964). Courts cannot consider equity for the purpose of nullifying or reducing accumulated alimony, which is a vested property right, until the judgment is altered or amended by subsequent judgment or is terminated by operation of law.
LSA-C.C.P. art. 3945 ; Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Elchinger v. Elchinger, 181 So.2d 297 (La.App. 4 Cir. 1965). Courts have also disallowed attempts at reduction of past due alimony and child support instigated by judgment debtors based on their inability to pay. Snow v. Snow, 188 La. 660, 177 So. 793 (1937); Williams v. Williams, 211 La. 939, 31 So.2d 170 (1947). This further demonstrates the courts’ reluctance to allow equity to interfere with collection of past due support payments pursuant to enforceable final judgments.”
Notwithstanding the principle announced above to the effect that equity cannot be considered for the purpose of reducing accumulated alimony in oral arguments appellant has urged that we exercise our power to grant equitable relief pursuant to
We think it significant that although the opinion in the last case between these parties was handed down in February, 1974, a rehearing was not denied until June, 1974. Nothing precluded the husband from then bringing to this Court‘s attention the fact that his former wife was employed during that period and had he done so this Court may have remanded the case to the trial court for the taking of evidence and an appropriate award based on the circumstances then prevailing. Instead, our judgment
No appeal has been taken from the trial judge‘s award of $110 per month beginning October 13, 1974, and that portion of the judgment will not be disturbed.
Accordingly, the judgment appealed from is affirmed insofar as the Constitutional objectiоn to
Amended and affirmed.
REDMANN, J., dissents in part with written reasons.
GULOTTA, J., dissents with reasons to follow.
STOULIG, J., concurs in result with written reasons.
REDMANN, Judge (dissenting in part).
I subscribe to that part of the majority opinion which, with clear reasoning, recognizes the impermissible discrimination of a law which would oblige the able exspouse to assist the needy ex-spouse, only if the able spouse were of the male sex. I also endorse the reasoning that Louisiana law does not thus discriminate against male ex-spouses.
But the judgment appealed from should be reversed insofar as it awards as “arrearage” in alimony any sum for periods prior to the date of our first judgment, February 7, 1974. No executory judgment is possible,
On the other hand, after February 7, 1974 the husband did know he was cast for alimony (though our judgment was not yet definitive). If the wife was working or if other circumstances justified a reduction in alimony, he might reasonably have filed at that time a rule for reduction in the trial court; Rakosky v. Rakosky, La.App.1973, 275 So.2d 421, writ refused La., 278 So.2d 508. But prior to February 7, 1974—even if the view is erroneous that no prejudgment arrearage can occur—certainly the husband who had a judgment holding him not liable for alimony at all could not reasonably have been expected to file a rule for reduction from zero when the wife began to work.
A curious anomaly it is, therefore, that right-sensitive judges can at times be insensitive to the wrong that they themselves do by their own “law“. The horrifying example is the judge-made “law” that constitutional rights cannot be argued in an appellate court unless they were argued in the trial court: this judge-made “law” becomes the highest law of the land, and reduces the Constitution to second-class law.
A similar self-sanctification of judge-made “law” is present here. Judges earlier ordained that past-due alimony payments cannot be reduced retroactively (they are “vеsted“) no matter how dire the circumstances. This court nevertheless blithely imposed alimony retroactively on the first appeal here, and now we create for the first time a rule that refuses retroactive reduction of retroactive alimony. This new judge-made “law” relegates common fairness to a second-class principle in our system. It is little consolation that our entire Constitution is similarly second-rate law according to some judicial theorists.
STOULIG, Judge (concurring).
I concur in the result.
The judgment of this court awarding the wife alimony of $175 per month became final and dispositive of the issue upon the refusal of the Supreme Court to grant writs. Thereafter, the unpaid alimony accruing under this judgment became a vested property right and was not subject to a retrospective mоdification by a subsequent judgment of the trial court.
As stated in the case of Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971), the only remedy available to Mr. Whitt to modify the award of alimony to his divorced wife is by way of a rule seeking to reduce, suspend, or terminate, the effect of which cannot predate its filing. The retroactive limitation of the effect of any judgment adversely affecting an award of alimony to the date of the filing of the rule fоr this purpose is necessary in order to preserve the vested property right character of accrued unpaid alimony.
GULOTTA, Judge (dissenting).
I have no quarrel with the rationale employed by the majority in reaching a conclusion that
I disagree with the result rеached by the majority which amends and increases the amount of the accumulated alimony. The trial judge properly retroactively reduced the alimony payments from $175.00 to $110.00 per month effective January 13, 1974.
The majority finds fault with the trial court‘s granting of a reduction in alimony from January, 1974 to October 13, 1974 when the rule to reduce was filed. The effect of the majority opiniоn is to place
Accordingly, I dissent from that part of the decree which denies a reduction in alimony payments from January of 1974 to October, 1974. I would affirm the judgment of the trial court.