Brenan v. Montz

221 So. 2d 40, 253 La. 897, 1969 La. LEXIS 2929

• Court: Supreme Court of Louisiana
• Decided: March 31, 1969
• Docket: 49311
• Status: Published

Opinions

FOURNET, Chief Justice.

Zenon Joseph Montz, Jr., whose wife, Mrs. Catherine Brenan, had secured a judgment of separation from bed and board from him on the 16th day of April, 1963, and after more than one year and 60 days had elapsed without reconciliation, secured a judgment of final divorce on July 6, 1966 wherein the wife was awarded alimony at the rate of $250 per month, from which judgment no appeal was taken; subsequently, however, on May 2, 1967 he caused a rule to be issued directing his ex-wife to show cause why the alimony should not be terminated, or in the alternative, reduced. The matter is now before us pursuant to a writ of certiorari issued by this court, 252 La. 473, 211 So.2d 332, on the application of Mr. Montz in order that we might review-the judgment of the Court of Appeal for the Fourth Circuit affirming the judgment of the district court dated July 14, 1967 dismissing the rule. 209 So. 2d 799.

Relying on the jurisprudence of this court that the wife holding assets of $20,000 cannot be said to be without sufficient means for her support as pronounced in the case of Smith v. Smith, 217 La. 646, 47 So.2d 32, relator contends that his former wife is not entitled to alimony under the provisions of L.S.A.-Civil Code Article 160 as amended¹ as she has unencumbered property valued in excess of $20,000, $6,000 of which is in cash.

The court of appeal, like the district court, gave no consideration to the jurisprudence of this court relative to the rights of the wife to alimony under article 160. The court stating that “it is our opinion that Mrs. Montz is in necessitous circumstances considering her age, her inability to work, her medical expenses, cost of food, clothing and the maintenance and upkeep of the home,” held, “Under the circumstances, we cannot say that the trial Judge abused his discretion in refusing to eliminate or reduce the award of alimony of $250.00 which is within the prescribed one-third of the husband’s earnings.”

In the Smith case we distinguished alimony under L.S.A.-Civil Code Article 148 from that in article 160 pointing out that the rights of the wife to alimony pendente lite under article 148 is based on the husband’s obligation as prescribed under Civil Code article 120,² whereas following the divorce, there being no longer an obligation on the part of the husband to support his ex-wife, the redactors of our Code in their wisdom in including article 160, and the law makers in adopting the same, sought to provide for the wife without sufficient means for her support alimony to be fixed by the trial judge in his sound discretion to be paid by the husband from his property and income and not to exceed one-third of that income. In the course of the opinion the court aptly observed, “Article 160 makes no reference to the wife’s income and takes into consideration only her means of maintenance and whether they are sufficient or not. In other words, under Article 160, the Court is not concerned with the wife’s income as such but only with the means she has, including income, and whether they are sufficient- for her maintenance. * * * ” and in determining what is meant by the phrase “sufficient means for her maintenance”³ declared, “Maintenance may be said to include primarily food, shelter, and clothing, and certainly property or means amounting to $20,000 ought to provide those necessities very readily. * * * ” See also, Brown v. Harris, 225 La. 320, 72 So.2d 746; Stabler v. Stabler, 226 La. 70, 75 So.2d 12; Rabun v. Rabun, 232 La. 1004, 95 So.2d 635.

In the case of Brown v. Harris, supra, like the case at bar, not being an appeal from the judgment granting alimony but an appeal taken on the rule filed by the husband to have his divorced wife show cause why the alimony should not be set aside after the trial judge merely reduced the award, we summarized the jurisprudence as pronounced in the Smith case which stated that “inasmuch as there is no longer an obligation under Article 120 for the husband to support the wife and the alimony is nothing more than a pension or gratuity, the trial judge in fixing the amount is not bound by the manner in which the wife has been accustomed to live,” and in reversing the judgment of the lower court awarding her alimony held that the wife in partitioning of the community had received $7,315.01 and having a salary of $150 could not he said to be without sufficient means for her support.

In Rabun v. Rabun, supra, the court observed after reviewing the recent decisions of this court that the question of what is to be considered in awarding alimony under Article 160 is no longer open to serious debate, and, in overruling the judgment of the lower court awarding the wife $100 per month alimony, held that the wife in that case who was employed at approximately $125 per month and as a result of the community property settlement had a home valued at $13,000 subject to a mortgage indebtedness of $8,123.33 that she assumed, a promissory note by Mr. Rabun for $2,500 and a Studebaker automobile had “sufficient means ior her maintenance and, therefore, is not entitled to any alimony.”

In Stabler v. Stabler, supra, the wife, like the case at bar, was unemployed and suffered periodically from chronic bronchitis. The court, nevertheless, held she was not entitled to alimony under Article 160 since she had property valued at $25,-000.00 subject to a mortgage of $3,600, from which she received a net rental income of $120 per month.

In light of this constant jurisprudence and considering that at the time the judgment was rendered on the rule, Mrs. Montz owned an unencumbered house with a stipulated value of $18,000 in which she lived, equity in certain stock valued at $6,000, and $6,000 in cash which she has in her house, she cannot be said to be without sufficient means for her support.

For the reasons assigned the judgments of the district court and the court of appeal are reversed and it is now ordered, adjudged and decreed that the rule instituted by the husband be made absolute and that he be relieved of further payments of alimony under the judgment of July 6, 1966 as of July 14, 1967.⁴ The court, however, availing itself of its discretion under Code of Civil Procedure Article 2164 orders all cost to be taxed against the husband.

1 . “When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of tho property and earnings of the husband, alimony which shall not exceed one-third of his income when:

(1) * * *

(2) The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for specified period of time;

(3) * * *

This alimony shall be revoked if it be- ' comes unnecessary, and terminates if the wife remarries.”

2 . “The wife is bound to live with her husband and to follow him wherever 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 moans and condition.”

3 . In amending article 160 the legislature in Act No. 48, § 1 of 1964 changed the phrase “sufficient means for her maintenance” to “sufficient means for her support” but we find no difference of meaning intended in this change.

4 . The judgment of July 6, 1966, from which no appeal was taken, is a final judgment which could not lie changed until a judgment was rendered on a rule seeking the termination, reduction or increase of the alimony set in that judgment.