Hilton v. Hilton

451 So. 2d 90
CourtLouisiana Court of Appeal
DecidedMay 16, 1984
Docket83-530
StatusPublished
Cited by13 cases

This text of 451 So. 2d 90 (Hilton v. Hilton) 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
Hilton v. Hilton, 451 So. 2d 90 (La. Ct. App. 1984).

Opinion

451 So.2d 90 (1984)

Samuel Lee HILTON, Plaintiff-Appellee,
v.
Nancy Claire Thomas HILTON, Defendant-Appellant.

No. 83-530.

Court of Appeal of Louisiana, Third Circuit.

May 16, 1984.

*92 Thomas, Dunahoe & Gregory, Edwin Dunahoe, Natchitoches, for defendant-appellant.

Charles W. Seaman, Natchitoches, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and DOUCET, JJ.

GUIDRY, Judge.

The sole issue on appeal in this matter is the defendant's entitlement to alimony after divorce. The parties were judicially separated by judgment dated July 27, 1982. In that judgment, the plaintiff, Samuel Lee Hilton, was ordered to pay the defendant, Nancy Claire Thomas Hilton, alimony pendente lite in the amount of $600.00 per month. The plaintiff thereafter filed a petition for divorce. The defendant answered the petition, seeking alimony after divorce of $600.00 per month. The trial court granted a judgment of divorce, and awarded the defendant alimony in a single lump sum of $1800.00, to be paid at the rate of $300.00 per month over a six month period. The defendant, Nancy Claire Thomas Hilton, appeals.

Appellant contends that the trial court erred in awarding alimony in a lump sum without consent of the parties. We find this contention to be well founded.

LSA-C.C. Art. 160 provides the criteria for determining a spouse's entitlement to alimony after divorce. The article was amended and reenacted by two separate acts of the 1982 Legislative Session, Acts 1982, No. 293, § 1 and Acts 1982, No. 580, § 1. Both acts were approved by the Governor, and both became effective on the same date, sixty days after the adjournment of the 1982 regular session. Section A of the text of the article as amended by Act No. 293 is substantially identical to the full text as amended by Act No. 580. The only substantial difference between the two versions of the article is the addition, in the text as amended by Act No. 293, of Section B, providing courts the option of awarding alimony in a lump sum. It provides:

"B. The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto. In determining whether to award lump sum alimony, the court shall consider the needs of the claimant spouse and the financial condition of the paying spouse. In awarding lump sum alimony in lieu of or in combination with permanent periodic alimony, the court shall consider the criteria enumerated in paragraph A of this article, except the limitation to one-third of the paying spouse's income, in determining entitlement and amount of alimony.
A lump sum award may consist of immovable or movable property or may be a monetary award payable in one payment or in installments.
A judgment which awards lump sum alimony shall vest in the claimant spouse a right which is neither terminable upon either spouse's remarriage or death, nor subject to modification."

*93 No provision for an award of alimony in a lump sum appears in the text of Article 160 as amended by Act 580.

The jurisprudence makes clear that, where two acts relating to the same subject are passed in the same legislative session, there is a strong presumption against implied repeal. The statutes are to be construed together, if possible, so as to give effect to each. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952); State in the interest of Wright, 408 So.2d 1123 (La.App. 1st Cir.1981).

We find no conflict in the two versions of Article 160 enacted in the 1982 Legislative Session. The two versions contain identical provisions regarding the criteria to be used in determining an award of alimony after divorce. The only substantial difference between the two versions is that one provides the courts the additional option of awarding alimony after divorce in a lump sum. Absent a conflict in the two versions of the article, we conclude that both versions of LSA-C.C. Art. 160 must be afforded legal efficacy.

While an award of alimony in a lump sum is authorized by LSA-C.C. Art. 160, such an award may only be made with the consent of the parties. Section B of the article (as amended by Act 293 of 1982) provides in pertinent part:

"B. The court may award alimony in lump sum in lieu of or in combination with permanent periodic alimony when circumstances require it or make it advisable, and the parties consent thereto." (emphasis supplied).

The foregoing provision clearly indicates that without consent of the parties, an award of alimony may not be made in a lump sum.

The record in the instant case is devoid of any evidence that either party consented to a lump sum award of alimony. The defendant's answer to the divorce petition, wherein she alleges her entitlement to alimony, asks for a permanent monthly award of $600.00 per month. There is no request for, consent to, nor mention of a lump sum alimony award in any of the pleadings nor in the trial transcript. Because such consent is a mandatory prerequisite to an award of alimony in a lump sum, the trial court's judgment awarding defendant alimony in a single lump sum was error.

While we conclude that the trial court's judgment was error, we find it unnecessary to remand the matter for a reconsideration of the award. The matter was fully tried, and a complete record is before us. We therefore choose to decide the case based on our review of the complete record. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

LSA-C.C. Art. 160[1] provides the following criteria for determining the entitlement and amount of alimony after divorce:

"A. When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse.
In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse's earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent *94 children; and any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries."

The initial inquiry is a determination of whether the defendant has sufficient means for her support. The claimant spouse has the burden of proving necessitous circumstances. Kean v. Kean, 388 So.2d 398 (La.App. 1st Cir.1980). Until such need has been shown, the means of the other spouse are irrelevant. Kean v. Kean, supra; Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir.1980).

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451 So. 2d 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hilton-v-hilton-lactapp-1984.