Becker v. Becker

654 So. 2d 1365, 94 La.App. 1 Cir. 1224, 1995 La. App. LEXIS 1341, 1995 WL 273546
CourtLouisiana Court of Appeal
DecidedMay 5, 1995
DocketNo. 94 CA 1224
StatusPublished
Cited by3 cases

This text of 654 So. 2d 1365 (Becker v. Becker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Becker v. Becker, 654 So. 2d 1365, 94 La.App. 1 Cir. 1224, 1995 La. App. LEXIS 1341, 1995 WL 273546 (La. Ct. App. 1995).

Opinion

|2GONZALES, Judge.

The salient issue in this case is whether alimony, paid pursuant to a contract which provides for termination upon the recipient spouse’s death or remarriage, is likewise terminated by the recipient spouse entering into open concubinage.

Kenneth R. Becker and Mariella Mooney Becker were divorced in 1987. The Beckers signed a community property settlement agreement dated December 14, 1987, wherein Mr. Becker agreed to pay Mrs. Becker $1,300.00 per month in alimony until her death or remarriage. Some time in 1989 Mr. Becker stopped making alimony payments. Mrs. Becker filed a petition on March 11, 1991, alleging that Mr. Becker owed her $21,900.00 in back alimony payments, plus additional sums that accrued on a monthly basis during the pendency of the proceedings.

Mr. Becker answered the petition, alleging that Mrs. Becker “is not and has not been entitled to receive permanent alimony from Kenneth R. Becker for the reason that she has lived in open concubinage, in contravention to the public policy of the State of Louisiana, and is not entitled to collect permanent alimony.”

The parties stipulated to the following pertinent facts: 1) Mr. Becker stopped making alimony payments some time in 1989; 2) on or before March of 1989, Mrs. Becker began a relationship with a man to whom she was not related; 3) in November of 1990, Mrs. Becker’s home was foreclosed upon and she began sharing a residence with that man; and, 4) Mrs. Becker is living in open concubinage with the unidentified male.

The trial court ruled in favor of Mrs. Becker by judgment dated September 20, 1993, ordered Mr. Becker to pay Mrs. Becker $1,300.00 per month as contractual permanent alimony and found him in arrears for $57,000.00 plus legal interest. Mr. Becker filed a motion for new trial, which was denied. Mr. Becker is appealing the Judgment dated September 20, 1993, and makes the following assignments of error:

1. The trial court erred in interpreting silence regarding concubinage in a community property settlement to mean that the parties intended for the alimony to contin[1367]*1367ue when the former wife lives in open concubinage.
2. The trial court erred in finding that the payor spouse remains obligated to the recipient spouse for contractual alimony, under the specific terms of their community property agreement, when she enters into an open, sexual relationship with a man to whom she is not married in direct violation of the public policy of this state.
3. The trial court erred in not finding that entering open concubinage constitutes bad faith that would vitiate the contract.

THE PERTINENT TERMS OF THE CONTRACT

Section 4(d) of the contract between Mr. Becker and Mrs. Becker provides as follows:

In consideration of the mutual understandings and transfers between the parties, Husband agrees to pay and Wife agrees to accept permanent alimony in the amount of $1300.00 per month until her death or remarriage. The parties agree and acknowledge that the issue of fault in dissolution of the marriage has not been litigated and is disputed. The agreement to pay alimony contained herein does not constitute an admission that alimony is due, but said contractual agreement is entered into to avoid litigation of that contested issue. Wife, on her part, in consideration of the agreement to pay alimony, waives any and all rights to seek alimony in any further amount and recognizes this as a full and final settlement and compromise of her right to seek alimony from Husband. As security for this obligation, Husband agrees to purchase and maintain in full force and effect a life insurance policy on his own life with Mariella Mooney Becker as irrevocable beneficiary payable on the death of Kenneth Becker in the amount of $80,000.00. This insurance guarantee may be funded through Equitable Variable Life Insurance Policy number 33-568-287 in the face amount of $50,-000.00 and Armed Forces Relief and Benefit Association Policy number 5846G in the face amount of $30,000.00. Wife agrees that in the event of her remarriage she shall have the obligation to transfer title, if title has been transferred to her, and to cooperate in allowing revocation of beneficiary states [sic] and to cooperate in the transfer of cash values under said policies or any substitute policies back to Husband and he shall have the right to cancel such policies.

Section 4(g) of the contract provides as follows:

Notwithstanding the above, it is agreed that if Wife should obtain any gainful employment or derive any income from wages or from the production of goods or rendition of services either individually or as derived from any partnership, corporation or joint venture in excess of $500.00 per month the alimony payable hereunder shall be reduced on a | ¿[dollar for dollar basis. Wife agrees to provide a copy of her income tax return for each calendar year to husband within 30 days of the filing thereof. If none is filed, she shall produce a statement of income and earnings no later than May 15 of each year.

ASSIGNMENTS OF ERROR NO. 1 AND 2

In his brief, Mr. Becker cites La.C.C. art. 2045, which provides “Interpretation of a contract is the determination of the common intent of the parties.” Mr. Becker then contends that:

Because this contract contained expressed resolutory conditions, ie [sic], reduction for work, and termination at remarriage and death, the common intent of the parties can only be that Mr. Becker was to provide limited financial assistance until such time as the alimony was not needed. The inclusion of these resolutory conditions does not exclude all other reso-lutory conditions, because La.C.C. Art. 1768 states that a condition may be expressed in a stipulation, or implied by [the] law, the nature of the contract or the intent of the parties.

Mr. Becker further contends that:

Because the contract was silent with regard to the issue of concubinage, La.C.C. art. 2054 must be applied. That article states that when the parties have made no provision for a particular situation, it must [1368]*1368be assumed that the parties intended to bind themselves not only to the expressed conditions of the contract but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose.

Louisiana Civil Code article 112(A) provides in pertinent part:

(4) Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.2

Mr. Becker contends that, because the parties did not make any provision for open concubinage, La.C.C. art. 112 should apply to revoke the alimony Mrs. Becker receives.

THE JURISPRUDENCE

The trial court, in its reasons for judgment, relied upon a case on point, Romero |5v. Romero, 509 So.2d 681 (La.App. 3rd. Cir.), writ not considered, 512 So.2d 427 (La.1987). In Romero, the trial court terminated contractual alimony based upon the wife living in open concubinage. The appellate court, in reversing the trial court, found:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burns v. Burns
94 So. 3d 941 (Louisiana Court of Appeal, 2012)
Victoria L. Burns v. James M. Burns
Louisiana Court of Appeal, 2012
Aufrichtig v. Aufrichtig
796 So. 2d 57 (Louisiana Court of Appeal, 2001)
Boudreaux v. Boudreaux
745 So. 2d 61 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
654 So. 2d 1365, 94 La.App. 1 Cir. 1224, 1995 La. App. LEXIS 1341, 1995 WL 273546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-becker-lactapp-1995.