Weldon v. Weldon

737 So. 2d 812, 1999 WL 44860
CourtLouisiana Court of Appeal
DecidedFebruary 3, 1999
Docket98-1173
StatusPublished
Cited by9 cases

This text of 737 So. 2d 812 (Weldon v. Weldon) 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
Weldon v. Weldon, 737 So. 2d 812, 1999 WL 44860 (La. Ct. App. 1999).

Opinion

737 So.2d 812 (1999)

Anthony Joseph WELDON, Plaintiff-Appellant,
v.
Shirley Ann WELDON, Defendant-Appellee.

No. 98-1173

Court of Appeal of Louisiana, Third Circuit.

February 3, 1999.

*813 Henry R. Liles, Lake Charles, William Mitchell Redd, for Anthony Joseph Weldon.

Lydia Ann Guillory-Lee, Lake Charles, for Shirley Ann Weldon.

Before: THIBODEAUX, AMY, and SULLIVAN, Judges.

THIBODEAUX, Judge.

Anthony Joseph Weldon appeals a judgment of the trial court ordering him to pay $16,400.00 in arrearages of alimony pendente lite and $500.00 in attorney fees. For the reasons which follow, we affirm the judgment of the trial court.

I.

ISSUES

We shall consider:

1. whether Mr. Weldon owes alimony pendente lite even though Mrs. Weldon's petition for divorce was abandoned;
2. whether the trial court erred in determining that Mrs. Weldon's petition for divorce was not abandoned in October of 1995;
3. whether the trial court erred in calculating the amount of arrearages;
4. whether the trial court erred in finding there was no oral agreement between the parties relieving Mr. *814 Weldon of his alimony obligation; and,
5. whether the trial court erred in awarding attorney fees to Mrs. Weldon.

II.

FACTS

On October 6, 1989, Shirley Weldon filed a petition for divorce against Anthony Weldon. By judgment on rule filed on January 10, 1990, Mr. Weldon was ordered to pay $955.00 per month in child support and $400.00 per month in alimony pendente lite. Subsequently, Mrs. Weldon filed a supplemental petition seeking a final divorce, and Mr. Weldon filed an answer. The matter was continued by Mrs. Weldon on several occasions.

On November 16, 1990, the State of Louisiana intervened in the suit by filing a motion to amend existing orders and rule to show cause against Mr. Weldon. The State alleged that Mr. Weldon was in arrears of $2,466.50 in child support. However, the petition was never heard, and the State filed a motion to withdraw in February of 1991.

On May 2, 1992, the State filed another motion to amend existing orders and rule to show cause against Mr. Weldon. The State's pleading concerned only the payment of child support. A consent judgment was signed by the parties on July 8, 1992. On May 1, 1996, a judgment of divorce was granted pursuant to a petition filed by Mr. Weldon seeking an immediate divorce under La.Civ.Code art. 103. On December 8, 1997, the State requested that the action commenced by Mrs. Weldon be consolidated with the action commenced by Mr. Weldon as issues of child support remained.

On December 16, 1997, Mrs. Weldon filed a petition alleging that Mr. Weldon was in arrears of alimony pendente lite in the amount of $16,400.00. Mr. Weldon requested that Mrs. Weldon's petition for divorce filed in 1989 be dismissed on the ground that it was abandoned pursuant to La.Code Civ.P. art. 561. The trial court dismissed Mrs. Weldon's petition for divorce, and ordered Mr. Weldon to pay $16,400.00 in alimony pendente lite arrearages. Mr. Weldon appeals this judgment.

III.

LAW AND DISCUSSION

Alimony Pendente Lite

Mr. Weldon alleges that as Mrs. Weldon's petition for divorce was dismissed for abandonment in 1998, there can be no obligation to pay alimony pendente lite based on that petition. In 1989, Mrs. Weldon filed a petition for divorce, and on January 10, 1990, a judgment was rendered ordering Mr. Weldon to pay alimony pendente lite in the amount of $400.00 per month. The parties were divorced on May 1, 1996 pursuant to a petition filed by Mr. Weldon. Mr. Weldon asserts that the effect of the dismissal of Mrs. Weldon's petition is that it restored matters to the status occupied by the parties before the suit was instituted. Thus, Mr. Weldon explains that he has no obligation to pay arrearages of alimony pendente lite, despite the 1990 judgment ordering him to pay alimony.

Mrs. Weldon contends that the January 10, 1990 judgment ordering Mr. Weldon to pay alimony pendente lite created a vested property right on her behalf for the period of January 1990 to May 1, 1996, the date of the divorce. The March 3, 1998 dismissal of her divorce petition had no effect on the validity of the 1990 judgment.

The trial court rejected Mr. Weldon's argument and ordered him to pay $16,400.00 in arrearages of alimony pendente lite for the period of December 1992 to May 1, 1996. We agree with the trial court's decision. Once alimony payments accrue, they become a vested property right that cannot be disturbed until altered *815 or amended by subsequent judgment or terminated by operation of law.

In Shewbridge v. Shewbridge, 28,981 (La.App. 2 Cir. 12/11/96); 685 So.2d 418, writ denied, 97-0129 (La.3/7/97); 690 So.2d 20, the court considered a similar case. In Shewbridge, the wife filed a petition for divorce pursuant to La.Civ.Code art. 102 on December 22, 1993 and requested alimony pendente lite. A judgment granting alimony was filed on January 21, 1994. No further action was taken by the wife until February of 1996, when the wife filed a rule to accrue past due alimony pendente lite. The husband sought dismissal of the divorce petition based upon abandonment pursuant to La. Code Civ.P. art. 3954, and argued that as the divorce petition was abandoned, the wife's entire claim for past due alimony must fail. Rejecting this argument, the court explained:

Once alimony pendente lite payments accrue, they become a vested property right. Regardless of the equity involved in reducing or forgiving past-due alimony, such a vested right cannot be disturbed until altered or amended by subsequent judgment or terminated by operation of law.... Beverly's right to alimony pendente lite began with the January 21, 1994 judgment ... [and] continued during the two-year pendency of the divorce action, that is, from service of the original petition until deemed abandoned by the operative provisions of La. C.C.P. Art. 3954.

Shewbridge, 685 So.2d at 420 (citations omitted); see also Mertens v. Mertens, 308 So.2d 506 (La.App. 3 Cir.), writ denied, 313 So.2d 240 (La.1975) (stating that once alimony accrues under a judgment awarding alimony, alimony payments cannot be changed until the judgment is altered by a subsequent judgment or terminated by operation of law); Hackett v. Hackett, 617 So.2d 1239 (La.App. 3 Cir.1993) (recognizing that past due alimony is a property right).

In this case, Mrs. Weldon's right to alimony pendente lite arose from the January 10, 1990 judgment ordering Mr. Weldon to make such payments. This right continued during the pendency of the divorce action until May 1, 1996, the date of the divorce. However, Mrs. Weldon filed suit against Mr. Weldon for alimony arrearages on December 11, 1997. Thus, as recognized by the trial court, she may only be awarded arrearages from December 11, 1992 because the five year prescriptive period provided in La.Civ.Code art. 3497.1 is applicable.[1]

Moreover, we note that this case is factually distinguishable from Shewbridge as we find that Mr.

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737 So. 2d 812, 1999 WL 44860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weldon-v-weldon-lactapp-1999.