Azar v. Azar

• Decision Date: 25 April 1960
• Docket Number: No. 44127,44127
• Citation: 120 So.2d 485,239 La. 941
• Parties: Mrs. Sybil Laura Hingle AZAR v. Alexander James AZAR, Sr., et al.
• Court: Louisiana Supreme Court

Page 485

120 So.2d 485

239 La. 941

Mrs. Sybil Laura Hingle AZAR v. Alexander James AZAR, Sr., et al.

No. 44127.

Supreme Court of Louisiana.

April 25, 1960.

Rehearing Denied May 31, 1960.

Henican, James & Cleveland, Murray F. Cleveland, Helene M. Walker, New Orleans, for plaintiff-appellant.

Deutsch, Kerrigan & Stiles, Gerald J. Gallinghouse, William A. Glennon, Jr., New Orleans, for defendants-appellees.

FOURNET, Chief Justice.

The plaintiff, Mrs. Sybil Laura Hingle Azar, is appealing from the lower court's judgment dismissing, as in case of nonsuit, her suit to have set aside a dation en paiement and transfer of immovable property, ¹ dated June 17, 1957, executed by her husband, Alexander J. Azar, Jr., in favor of his father, Alexander J. Azar, Sr., both made defendants herein. According to the allegations of the petition, the above property was acquired during the community existing between the plaintiff and her husband, they having occupied the lower apartment of the duplex building as the family domicile until the first days of June, 1957, when she was forced by the actions of her husband to take their two infant children and depart, in fear for their safety; that although she had intended to return when conditions permitted, her husband's attitude made this impossible, and on June 19, 1957, he instituted suit for separation from bed and board on grounds of abandonment, to which she filed an answer and reconventional demand for separation on the ground of cruelty; meanwhile, however, by Act dated June 4, 1957 and recorded on June 11, 1957, she had executed a statutory declaration of family home in conformity with the provisions of R.S. 9:2801 et seq., ² designating the said property. The plaintiff further alleges that while the said dation en paiement (recorded on the date of its execution, i.e., June 17, 1957) recites as consideration the sum of $80,000, said to be owed by Alexander Azar, Jr., to his father, there was in fact no indebtedness whatsoever to the father and the said purported transfer and dation en paiement was a fictitious, fraudulent transfer, a simulation designed to deprive plaintiff of her undivided half interest in the said community property. She therefore sought judgment declaring the instrument to the null, void and of no effect, and ordering that the inscription thereof be cancelled and erased. The defendants denied that the community existing between plaintiff and her husband acquired the property, averring that $80,000 was advanced by the father to his son for the purpose of purchasing the property and constructing the improvements, and that the son was obligated to reimburse his father for that sum--hence the sale.

Following submission on the merits the trial Judge, noting the pendency of the suit for separation as well as the fact that it had not been tried, and observing that no judgment of separation from bed and board had been rendered, ruled that the wife has no right to bring an action with reference to community property where there has been no dissolution of the community, and dismissed her suit as noted above. As authority the Judge cited Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12.

In Louisiana, according to the express provisions of our Revised Civil Code, during the existence of the community between the spouses the husband is head and master and has complete managerial control of community property--except in certain instances as specifically limited; he does not need his wife's consent to alienate the immovable effects by onerous title or to sell or give away particular community movables; ³ and while the jurisprudence is settled that the wife's half interest in the community property is not a mere expectancy during the marriage nor transmitted to her inconsequence of a dissolution of the community, but that title thereto is vested in the wife from the moment it is acquired by the community or by the spouses jointly, nevertheless her interest is subject to the husband's management and control as long as the marital community remains undisolved, ⁴ subject only to checks and limitations not here pertinent. ⁵ The Civil Code likewise provides the manner in which a dissolution of the community of acquets and gains is brought about, i.e., by dissolution of the marriage itself through death, divorce or annulment; ⁶ and during the marriage, by the wife's action for separation of property, ⁷ by a judgment of separation from bed and board obtained by either spouse, ⁸ or as the result of an action which either spouse may bring if the other member of the community is an absentee. ⁹

Counsel for plaintiff-appellant, not seeking dispute the legal principles stated above, contends that the rule of the Thigpen case is not authority for the result reached by the Court below; ¹⁰ that the Trial Judge erroneously interpreted the principle of a wife's lack of authority to question the husband's management of the community property as precluding an attack by her on his simulated transfer of said property, and he relies on the fourth paragraph of Article 2404 of the Louisiana Civil Code ¹¹ and the cases of Van Asselberg v. Van Asselberg, 164 La. 553, 114 So. 155; Lockhart v. Dickey, 161 La. 282, 108 So. 483; and Belden v. Hanlon, 32 La.Ann. 85. Counsel argues that in the instant case and in the absence of this quickly-filed suit, the wife's community interest in the property could have been lost to a third party purchasing in good faith from Alexander Azar, Sr., and that the plaintiff would have been relegated to a personal claim possibly worth nothing.

Counsel's contentions and arguments do not impress us. In the case of Thigpen v. Thigpen, supra, this Court extended the provisions of the fourth paragraph of Article 2404 of the Civil Code (see footnote 11) so as to permit the defrauded wife to maintain suit against the husband himself (rather than only against his heirs) for a sale of immovable community property made by him Prior to institution of a suit for separation, observing that a right to proceed, but restricted to the heirs of the husband, was based on the outmoded concept that the wife has no rights in the community until the death of her husband. It is of the essence, however, that in the Thigpen case a decree of separation from bed and board had effected a dissolution of the community prior to filing of suit by the wife. Similarly, in the Van Asselberg case, supra, coupled with the wife's action for separation from bed and board was a demand to set aside a sale made by the husband before suit was filed on the ground that it was in fraud of her community rights; and in Belden v. Hanlon, supra, where the wife's attack by third opposition was maintained with respect to foreclosure of a mortgage placed on community property by her husband in a simulated transaction for the purpose of depriving the wife of...