Tatum v. Tatum

508 So. 2d 640, 1987 La. App. LEXIS 9708
CourtLouisiana Court of Appeal
DecidedJune 10, 1987
DocketNo. 18761-CA
StatusPublished
Cited by1 cases

This text of 508 So. 2d 640 (Tatum v. Tatum) 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
Tatum v. Tatum, 508 So. 2d 640, 1987 La. App. LEXIS 9708 (La. Ct. App. 1987).

Opinion

LINDSAY, Judge.

The plaintiff, Sandra Lynn Smith Tatum, filed a rule against the defendant, Keith Havis Tatum, seeking an increase in permanent alimony. The trial court granted plaintiff’s request and the defendant has appealed that decision. For the following reasons, we reverse the trial court judgment.

FACTS

The plaintiff and the defendant were married in Caddo Parish on June 12, 1982. The defendant is a member of the U.S. Navy and following their marriage, the [641]*641couple moved to California. On September 21, 1984, the plaintiff filed a petition for separation in Caddo Parish claiming that although the last matrimonial domicile of the parties was in California, she had become a domiciliary of Caddo Parish. She alleged the defendant abandoned her on April 17, 1984. She also sought $600 per month alimony pendente lite. An attorney was appointed to represent the defendant. However, the defendant retained counsel and filed an answer and reconventional demand, denying plaintiffs allegations and asserting she was at fault in causing the separation.

Both parties appeared in court and on January 30, 1985, a judgment of separation was rendered, signed and filed by the trial court. The court made no adjudication of fault, but reserved to both parties the right to litigate fault in the divorce proceeding.

On February 11, 1985, pursuant to a rule issued in the separation suit, the trial court signed a judgment ordering the defendant to pay certain community obligations totaling $459.21 per month. The judgment specified that $150 per month of that amount was to be “specifically allocated as alimony pendente lite.”

On April 17, 1985, the plaintiff filed a petition for divorce, presumably under the provisions of LSA-R.S. 9:301, asserting that the parties had not lived together nor reconciled since April 17, 1984. The plaintiff claimed to be free from fault and asked for $500 per month permanent alimony. This petition was later amended by the plaintiff to assert that the petition for divorce should not have been filed until April 18,1985. The defendant’s attorney filed an answer to the divorce petition in which he alleged that the plaintiff was not free from fault.

The divorce action came to trial on August 23, 1985. The defendant was not present, but he was represented by counsel. The divorce was uncontested. However, the defendant, through counsel, objected to being cast with permanent alimony. At this trial, the parties agreed that evidence only on the divorce was to be adduced and that the alimony issue would be left open for sixty days, the court stating that it “will grant a continuance in the portion of this matter, that is, the setting of permanent alimony.” It was agreed that the defendant was to continue paying the community bills. However, the case was to be left open for sixty days to allow the defendant to be advised of the proceedings and contest any claim for permanent alimony.

At the hearing, the plaintiff testified only that she and the defendant had lived separate and apart for more than one year. In response to a question by her own attorney, the plaintiff stated she understood that the issue of fault and her entitlement to permanent alimony would be tried at the termination of the sixty day period agreed upon by the parties. The following exchange occurred between the plaintiff and her attorney:

Q. You heard the statement to the Court this morning that we’re asking for a divorce, but we’re going to leave this matter open for 60 days in order for your former husband to be advised as to proceedings so that he can contest if he wishes any claim for permanent alimony?
A. Yes, sir.
Q. That we will try the question of fault at the termination of sixty days as soon as we can get him tó court. Do you understand that?
A. Yes, sir.

However, the record reflects that no such hearing on the issue of fault was ever scheduled or held. There was never a determination of fault and plaintiff’s entitlement to permanent alimony.

Later, on October 9, 1985 the judgment of divorce was signed. In that judgment, the defendant was again ordered to pay community obligations totaling $459.21 per month with $150 of that monthly amount to be considered alimony pendente lite rather than permanent alimony. The judgment further recited that the case was held open for sixty days to allow the defendant to “assert whatever defense he may have to the issues of fault and permanent alimo[642]*642ny.” As mentioned above, the record is devoid of any adjudication finding either that the defendant was at fault or that the plaintiff was free of fault.

On January 6, 1986, defendant’s counsel withdrew from the case. The plaintiff then filed a rule to increase permanent alimony, claiming that the defendant had not paid the community obligations as ordered by the trial court and requesting that the entire monthly amount of $459.21 be designated as permanent alimony. The rule stated that defendant was stationed in Italy and service upon him would be made under LSA-R.S. 13:3201, the Long Arm Statute. However, the affidavit of service indicated that certified mail cannot be sent overseas and therefore the defendant received no notice of the rule.

When this action came up for hearing, the trial court apparently felt that notice to the defendant was inadequate. The record contains an opinion by the trial court denying plaintiff’s request for an increase in permanent alimony because there was no evidence that the defendant received notice of the divorce decree or notice regarding the rule to increase alimony.

On May 29,1986, the plaintiff again filed a petition to increase permanent alimony from $150 per month to $459.21 per month. At this time, an attomey-at-law was appointed to represent the absentee defendant under LSA-C.C.P. Art. 5091. Plaintiff’s motion to proceed in forma pauperis was granted by the trial court.

A hearing on the rule was held July 15, 1986. On July 22, 1986, the trial court signed a judgment granting the plaintiff $452.21 per month in permanent alimony.1

The defendant has appealed that judgment claiming the trial court had no jurisdiction to award the plaintiff permanent alimony. The defendant also claims that if the trial court did have jurisdiction, the amount of alimony awarded was excessive because plaintiff failed to show the requisite change in circumstances necessary to increase an award of alimony. For the following reasons, we reverse the trial court judgment.

JURISDICTION

The defendant claims that the trial court lacked jurisdiction to award permanent alimony to the plaintiff or to increase the alimony. First, the defendant argues that the trial court awarded the plaintiff only alimony pendente lite and that award terminated when the divorce judgment was rendered. The defendant also claims that the trial court could not properly make an award of permanent alimony to the plaintiff because there was no adjudication that the plaintiff was free from fault. Finally, the defendant claims that because the award of alimony pendente lite terminated with the divorce decree, the court does not have continuing jurisdiction over him and the appointment of an attorney to represent him under LSA-C.C.P. Art. 5091 was not proper.

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Bluebook (online)
508 So. 2d 640, 1987 La. App. LEXIS 9708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tatum-v-tatum-lactapp-1987.