Carter v. Carter

• Decision Date: 11 February 1985
• Docket Number: No. 84-CA-300,84-CA-300
• Citation: 464 So.2d 799
• Parties: Vernona Jones, wife of Guy L. CARTER v. Guy L. CARTER.
• Court: Court of Appeal of Louisiana — District of US

Page 799

464 So.2d 799

Vernona Jones, wife of Guy L. CARTER v. Guy L. CARTER.

No. 84-CA-300.

Court of Appeal of Louisiana Fifth Circuit.

Feb. 11, 1985.

David K. Joyce, New Orleans, for Vernona Jones Carter, plaintiff-appellee.

Ronald S. Ruiz, New Orleans, for Guy L. Carter, defendant-appellant.

Before BOUTALL, KLIEBERT and CURRAULT, JJ.

BOUTALL, Judge.

This is a domestic suit. From a judgment in favor of the plaintiff wife in a rule for contempt and for arrearage of alimony pendente lite, the defendant husband appeals. We affirm.

Vernona Jones and Guy L. Carter were married in 1971. On June 2, 1978 the wife obtained a default judgment of separation and an award of $45.00 per week alimony pendente lite. On June 10, 1982 the wife obtained a default judgment of divorce under LSA-R.S. 9:302, alleging that more than a year had passed and no reconciliation had taken place since the judgment of separation became final. The divorce judgment is silent as to alimony. On January 31, 1983 Mrs. Carter filed a rule against her ex-husband for contempt and for back alimony pendente lite and attorney's fees. Carter filed an opposition on grounds that a reconciliation had occurred shortly after the judgment of separation, lasting until 1980.

The trial judge considered the factual and procedural problems and rendered judgment based on the following:

"Review of the record reveals that defendant was ordered by this Court to make alimony pendente lite payments to petitioner during the period between April 28, 1978, and June 10, 1982, and has made no payment to date. Accordingly, under LSA-C.C. Art. 3538, petitioner is entitled to alimony pendente lite in the amount of $45.00 per week, from three years before motion for contempt was filed, on January 31, 1983. Said time period commencing from January 31, 1980, until her rights to said alimony ceased on June 10, 1982, said time period being 124 weeks, yielding a net total of $5,580.00 due in judgment, together with all applicable interest, plus attorney's fees, and for all costs of this suit."

This appeal followed.

Counsel for the appellant raises these issues: whether the appellant may raise the defense of reconciliation against a suit for past due alimony after judgments of separation and divorce have been rendered and whether a reconciliation automatically terminates an award of alimony pendente lite.

The trial judge stated in his reasons for judgment that Carter's defense against the rule for execution of judgment constituted a collateral attack on a final judgment of divorce which may only be nullified in a direct action. La.C.C.P. art. 2004; Makar v. Ivy, 291 So.2d 861 (La.App. 3rd Cir.1974).

Carter's position is that he is not attacking the divorce. Since the issue of alimony had not been litigated before, he is not barred by res judicata. The trial judge stated that Carter had been served with the petition in the separation and divorce suits, in each of which it was alleged that the couple had not resumed a marital relationship. Carter chose not to answer or appear in either suit, but evidence was heard at both hearings as to the status of the relationship. The court said:

"... Defendant cannot sit idly by and acquiesce in the final judgment and then attempt to defeat the same by relitigating the identical issues which were the very essence of the judgment."

Carter argues that the divorce judgment does not reflect a judicial admission that the couple had not reconciled after the judgment of separation, but only that reconciliation had not occurred in the year immediately prior to the divorce judgment. The alleged earlier reconciliation would automatically extinguish both the separation judgment and his obligation to pay alimony. This position...