Brown v. Harris
| Decision Date | 26 April 1954 |
| Docket Number | No. 41080,41080 |
| Parties | BROWN v. HARRIS. |
| Court | Louisiana Supreme Court |
Leo L. Dubourg, New Orleans, for defendant-appellant.
Weiss & Weiss, S. Paul Weiss, Jr., New Orleans, for plaintiff-appellee.
Appellant Charles K. Harris filed a rule in the district court praying that his divorced wife, Mrs. Eunice Brown, show cause why a previous judgment of that court awarding her alimony of $55 a month should not be set aside and why he should not be relieved from the further payment of alimony. After trial of this rule the court rendered judgment reducing the alimony to $30 a month, and plaintiff in rule appealed.
The facts material to our decision are these: On January 4, 1949, a judgment of separation from bed and board was rendered between the parties, and the husband was ordered to pay alimony pendente lite of $70 a month. On May 2, 1950, on petition of the husband a judgment of absolute divorce was granted which ordered the husband to pay to his divorced wife alimony of $55 a month. Thereafter the parties executed an instrument of community settlement partitioning the community property, by which the wife received $7,315.01. The husband then instituted the rule upon which the judgment now under consideration was rendered.
At the time the rule was tried, the wife was gainfully employed earning $150 a month, and she had on deposit in a building and loan association $6,600 which earned dividends at 3 per cent per annum, or $16.50 a month. It was stipulated by the parties that there had been no change in the financial status of the wife since the alimony had been fixed in the judgment of divorce except for the amount received by her in the partition of the community.
In defending her judgment for alimony, the wife relies on Article 160 of the Civil Code, which allows a divorced wife alimony when she 'has not sufficient means for her maintenance'. The alimony provided for in Article 160 is, under the jurisprudence of this state, in the nature of a pension accorded by law to the wife. This alimony or pension is nothing more than a pure gratuity which the court may allow and fix in its discretion at an amount not to exceed one-third of the husband's income, and is revocable when it becomes unnecessary. Player v. Player, 162 La. 229, 110 So. 332; Fortier v. Gelpi, 195 La. 449, 197 So. 138; Scott v. Scott, 197 La. 726, 2 So.2d 193; Slagle v. Slagle, 205 La. 694, 17 So.2d 923.
In Fortier v. Gelpi, supra [195 La. 449, 197 So. 140], this court said:
* * *' See also Matheny v. Matheny, 205 La. 869, 18 So.2d 324; Smith v. Smith, 217 La. 646, 47 So.2d 32; Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321.
In Smith v. Smith, supra, this court had occasion to consider the meaning of the phrase 'sufficient means for her maintenance' in Article 160, and concluded that 'maintenance' as this word is used in the article includes primarily food, shelter, and clothing. The amount necessary for maintenance is to be determined by the facts and circumstances of each particular case, within the sound discretion of the trial judge, but, inasmuch as there is no longer an obligation under Article 120 for the husband to support the wife and the alimony is...
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