Oliver v. Oliver

417 So. 2d 1278
Louisiana Court of Appeal·Decided June 29, 1982·No. 14974·Published·Cited by 15 cases

Opinion

417 So.2d 1278 (1982)

William D. OLIVER, Sr.
v.
Meridel Vincent OLIVER.

No. 14974.

Court of Appeal of Louisiana, First Circuit.

June 29, 1982.
Rehearing Denied August 24, 1982.

*1279 Sam J. D'Amico, Baton Rouge, for plaintiff-appellee-appellant William D. Oliver, Sr.

Patsy Jo McDowell, Baton Rouge, for defendant-appellant-appellee Meridel Vincent Oliver.

Before LEAR, CARTER and LANIER, JJ.

LANIER, Judge.

William D. Oliver, Sr. brought suit against his wife, Meridel Vincent Oliver, seeking a divorce. Mrs. Oliver answered and filed a reconventional demand for a divorce and, in the alternative, for a separation and sought alimony pendente lite and permanent alimony of $1,500 per month. Following a trial, there was judgment in favor of Mr. Oliver granting the divorce and judgment against Mrs. Oliver dismissing her reconventional demand and rejecting her claim for permanent alimony. Mrs. Oliver appealed to this court only that part of the judgment finding her at fault and denying her permanent alimony. By judgment dated November 10, 1980, this court reversed the trial court determination of fault and granted Mrs. Oliver permanent alimony of $867 per month. No date for *1280 commencement of payment of the permanent alimony was set in the opinion. Oliver v. Oliver, 393 So.2d 192 (La.App. 1st Cir. 1980). Mr. Oliver applied for a rehearing which was denied on January 26, 1981. He then applied to the Louisiana Supreme Court for a supervisory writ which was denied on March 27, 1981. Oliver v. Oliver, 397 So.2d 1358 (La.1981).

On April 22, 1981, Mr. Oliver filed a motion to reduce the permanent alimony award. On May 13, 1981, Mrs. Oliver filed a rule seeking the following relief: (1) judgment for all past due permanent alimony payments retroactive to the date of judgment in the trial court (March 13, 1980) totaling $12,138 with legal interest thereon from the due date of each installment (La. C.C.P. art. 3945); (2) a reasonable attorney fee and costs (La.R.S. 9:305); and (3) that Mr. Oliver be cited for contempt of court for failure to comply with the permanent alimony payment order (La.C.C.P. art. 224 and La.R.S. 13:4611[A][4]). Mr. Oliver answered this rule and alleged that permanent alimony payments were not due until the judgment of this court became final with the denial of his application for writs by the Louisiana Supreme Court on March 27, 1981. By judgment rendered on May 21, 1981, and read and signed on May 28, 1981, the Judge of the Family Court of the Parish of East Baton Rouge reduced the permanent alimony payments to $600 per month, commencing June 1, 1981. By judgment rendered June 30, 1981, and read and signed on July 9, 1981, the Family Court Judge rendered judgment in favor of Mrs. Oliver and against Mr. Oliver in the sum of $5,202 (representing six payments due through May 10, 1981) for arrearages of permanent alimony payments from November 10, 1980, (the date of this court's decision) and made this judgment executory. This judgment did not provide for interest on the past due alimony payments, denied the claim for attorney fees, dismissed the contempt citation and cast Mr. Oliver for all costs. From these various judgments, both Mr. and Mrs. Oliver have appealed devolutively.[1]

I. EFFECTIVE DATE OF COURT OF APPEAL JUDGMENT AWARDING PERMANENT ALIMONY

Mrs. Oliver argues that the effect of our judgment rendered on November 10, 1980, reversing the trial court and rendering judgment in her favor for permanent alimony at the rate of $867 per month is retroactive to the date of judgment in the trial court. There is authority in this Circuit that a reversal or modification of a trial court judgment by an appellate court places the parties in the same position as if the trial court judgment had not been rendered and is retroactive to the effective date of the trial court judgment. In O'Brien v. O'Brien, 347 So.2d 1288 (La.App. 1st Cir. 1977), Mrs. O'Brien was awarded permanent alimony of $500 per month. In a subsequent proceeding in the trial court, Mr. O'Brien was successful in having this award reduced to $275 per month. This court on appeal reversed the trial court reduction and reinstated the original award. During the time that this litigation was pending in this court, Mr. O'Brien paid Mrs. O'Brien $275 per month on the basis of the amended trial court judgment. This court held that Mr. O'Brien was responsible for payments of $500 per month during the time that the appeal was pending for the following reasons found at pages 1289 and 1290 of the Southern Reporter:

"A suspensive appeal cannot be taken from a judgment relating to alimony, regardless of whether the judgment grants, denies, reduces, increases, or terminates alimony. LSA-C.C.P. art. 3943: Malone v. Malone, 282 So.2d 119 (La.1973); and Donica v. Donica, 324 So.2d 847 (La.App. 1st Cir. 1975).
"However, we reason that the intention of the legislature in denying suspensive *1281 appeals from judgments relating to alimony is aptly expressed in the comments to LSA-C.C.P. art. 3943 which states, `thus the wife will no longer be deprived of necessary support pending appeal.' To allow a husband to suspensively appeal an alimony award could deprive the wife of needed support during the appeal, and thus cause her to have reason to compromise her position.
"It is true the courts in interpreting LSA-C.C.P. art. 3943 have applied the suspensive appeal prohibition to all aspects of alimony awards, however, we find no merit in the argument that the reversal of an alimony reduction award retroactively to the date of the reversal is likened to a suspensive appeal.
"Generally `the effect of a general and unqualified reversal of a judgment, order, or decree is to nullify it completely and to leave the case standing as if such judgment, order, or decree had never been rendered, except as restricted by the opinion of the appellate court.' 5B C.J.S. Appeal and Error § 1950.
"If the Trial Court judgment would have increased alimony with the wife receiving the increase until that judgment was reversed on appeal, the husband after the reversal became final would be entitled to recover, in a separate action, the overage paid the wife. The wife certainly could not argue that the retroactive application of the reversal effected a suspensive appeal of the Trial Court increase. State, Department of Highways v. Busch, 254 La. 541, 225 So.2d 208 (1969) and Henry Waters Truck & Tractor Company, Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir. 1973), writ refused, 279 So.2d 206 (La. 1973).
"In Whitt v. Vauthier, 295 So.2d 235 (La. App. 4th Cir. 1974), writ refused, 299 So.2d 793 (La.1974), wherein the husband was granted a divorce and the wife was found at fault thus denying her permanent alimony, the appellate court reversed the finding of fault and awarded alimony retroactively to the date of the divorce judgment.
"Thus, we reason that the reversal by the Court of the reduction of alimony places the parties in the same position as if no reduction had ever been decreed, and the retroactive application of the reversal does not operate as a suspensive appeal."
(Emphasis Added).

In Hartley v. Hartley, 336 So.2d 291 (La. App. 1st Cir. 1976), Mrs. Hartley was awarded alimony pendente lite in the trial court o

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