Favret v. Favret

527 So. 2d 463, 1988 WL 60135
CourtLouisiana Court of Appeal
DecidedJune 7, 1988
Docket88-CA-86
StatusPublished
Cited by5 cases

This text of 527 So. 2d 463 (Favret v. Favret) 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
Favret v. Favret, 527 So. 2d 463, 1988 WL 60135 (La. Ct. App. 1988).

Opinion

527 So.2d 463 (1988)

Marshall J. FAVRET
v.
Gail Erichson FAVRET.

No. 88-CA-86.

Court of Appeal of Louisiana, Fifth Circuit.

June 7, 1988.

Favret, Favret, Demarest & Russo, John Y. Kennedy, New Orleans, for plaintiff/appellant.

*464 Lowe, Stein, Hoffman & Allweiss, Robert C. Lowe, Ellen Widen Kessler, New Orleans, for defendant/appellee.

Before GRISBAUM, DUFRESNE and GOTHARD, JJ.

GOTHARD, Judge.

This case arises from a rule brought by a divorced husband to terminate permanent alimony. The court rendered judgment in favor of the wife and the husband has appealed. The wife answered the appeal to correct an error in the court's reasons for judgment.

Marshall J. Favret, an attorney, and his wife, Gail Erichson Favret, were legally separated on June 27, 1977. On February 2, 1978 the couple executed a settlement of community property, and at the same time the husband executed a document, authentic in form, entitled "Supplement to the Settlement of Community by Marshal (sic) J. Favret and Gail Favret Dated the 2nd Day of February, 1978". (Appendix "A"). Mr. Favret was granted a divorce by default judgment on October 20, 1978, which gave custody of the four minor children to Mrs. Favret and ordered Mr. Favret to pay $500 per month support for each child and an additional $500 per month to Gail Favret "individually for her maintenance and support."

On October 9, 1986, Mr. Favret filed the motion to terminate post-divorce alimony that is the subject of this appeal. On February 5, 1987, Mrs. Favret filed a pleading entitled "Affirmative Defense; Motion to Dismiss," asserting the affirmative defenses of estoppel and transaction or compromise, based on the supplemental document of February 2, 1978. A hearing was held on February 6, 1987, at the close of which the trial judge took the matter under advisement and asked the parties to file memoranda on the issues of prescription, validity of the supplement to the community property settlement, and admission of parol evidence relative to the document. On July 29, 1987 the court rendered judgment with reasons in favor of Mrs. Favret, dismissing the rule to terminate alimony. Thereafter Mr. Favret filed a motion for new trial, which was denied. This appeal followed.

The provision of the "supplement" upon which Mrs. Favret relies to defeat the motion to terminate post-divorce alimony reads as follows:

In consideration of the community property settlement, Marshal J. Favret does:
. . . . .
2. Bind himself, to seek no reduction in alimony payments to Gail Erickson (sic) Favret before and/or after the divorce unless his earning capacity should be significantly diminished by ill health.

The seven "Errors and Issues" listed by the appellant refer to the overriding issue of the case: whether the document entitled "Supplement to the Settlement of Community by Marshal (sic) J. Favret and Gail Favret Dated the 2nd Day of February, 1978" is a valid, enforceable, unambiguous contract.

The courts have upheld contracts regarding alimony, either as a provision of a community property settlement or as a separate agreement. In King v. King, 390 So.2d 250 (La.App. 3rd Cir.1980), writ refused 396 So.2d 884 (La.1981), the court approved an alimony clause of a community property settlement providing the husband would pay alimony until the wife's remarriage, thereby bargaining away his right under LSA-C.C. art. 160 to have alimony terminated when his wife no longer needed it. The court found that, although the agreement was made prior to divorce, (and before the legislature lifted the prohibition against interspousal contracts during marriage), the parties ratified the agreement by complying with the property apportionment and by his making alimony payments. This court in Jones v. Jones, 459 So.2d 1200 (La.App. 5th Cir.1984), writ denied 462 So.2d 649 (La.1985) affirmed the enforceability of a community property compromise in which the husband promised to pay a set monthly sum until the wife remarried and the wife agreed not to seek an increase under any circumstances, which agreement the court termed "a bargained-for arrangement advantageous to *465 both parties." In Spencer v. Spencer, 472 So.2d 302 (La.App. 3rd Cir.1985) the court upheld a property settlement agreement that included an alimony obligation on the part of the husband and a promise by the wife to make no further demand against the husband (conditioned upon timely payment of alimony). Those provisions were not set out in a court judgment. The court held specifically that, "...alimony agreements need not be incorporated into a court judgment and are enforceable according to their own terms or the proven intent of the parties...." Spencer v. Spencer, supra, at 307. Accord, Oberfell v. Oberfell, 516 So.2d 424, (La.App. 1st Cir.1987). Finally, in Bonck v. Bonck, 500 So.2d 798 (La.App. 1st Cir.1986), writ denied 501 So.2d 774 (La.1987), on the same day on which the parties executed a community property settlement agreement they also executed a "Community Property Settlement Counter Letter" which provided that the husband would pay alimony until the wife remarried and that the wife would seek no increase. The court upheld the counter letter as enforceable even though the termination provisions were not included in an amended judgment of divorce.

In the case before us, the appellant points out two errors in the court's written reasons for judgment. The court stated:

. . . . .
On the same day as the community property settlement, another document was executed in which both parties agreed that permanent alimony in the amount of $500.00 per month be paid to Mrs. Favret. Both parties further agreed that neither of them would seek an increase or decrease in the permanent alimony for any reasons other than Mr. Favret's inability to work because of illness or some other physical infirmity....

The judge continued:

The Court dismisses Mr. Favret's Rule because it finds that the alimony agreement signed by the parties is binding on them. In the recent case Bonck v. Bonck, 500 So.2d 798 (La.App. 1st Cir. 1986), writ denied, 501 So.2d 774 (La. 1987), a similar alimony agreement was held to be valid and enforceable by the Court. That Court stated:
Divorced spouses may validly contract with each other for permanent alimony. Such agreements are enforceable according to their own terms and need not be incorporated into a judgment.

Bonck, supra, at 800 (citations omitted).

Similar contracts between former spouses which involve a clause preventing the parties from seeking either an increase or a decrease in permanent alimony have been upheld by Louisiana courts. See Klein v. Klein, 485 So.2d 970 (La.App. 5th Cir.1986), writ denied, 489 So.2d 921 (La.1986); Jones v. Jones, 459 So.2d 1200 (La.App. 5th Cir.1984) writ denied, 462 So.2d 649 (La.1985); Spencer v. Spencer, 472 So.2d 302 (La. App. 3rd Cir.1985).
On the basis of the caselaw upholding such alimony agreements, this court finds that the alimony agreement executed by Marshall Favret and Gail Erichson Favret is valid and enforceable by this Court. The Rule to Terminate Alimony filed by Mr. Favret is dismissed. [Emphasis supplied.]

The document shows Mr. Favret alone as having executed it, and Mrs. Favret's signature is that of a witness only; therefore, the agreement clearly was not executed by both parties.

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Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 463, 1988 WL 60135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/favret-v-favret-lactapp-1988.