Colby v. Colby
| Decision Date | 30 March 1942 |
| Docket Number | 36571. |
| Citation | 200 La. 321,7 So.2d 924 |
| Court | Louisiana Supreme Court |
| Parties | COLBY v. COLBY. |
Rehearing Denied April 27, 1942.
R. A. Dowling, of New Orleans, for appellant.
Joseph Rosenberg, of New Orleans, for appellee.
The only point involved in this controversy relates to the question of the amount of alimony which the husband should pay to his wife during the pendency of his suit against her for a separation from bed and board.
On April 10 1940, the husband sued his wife for separation from bed and board on the grounds of cruel treatment, humiliation slander, public defamation, etc. His wife answered the suit denying plaintiff's allegations, and, coupled with her answer, she filed a reconventional demand in which she alleged that her husband had been guilty of adultery and for that reason she was entitled to an absolute divorce.
But, before filing her answer and reconventional demand, she ruled her husband to show cause why he should not pay alimony pendente lite, as provided in Article 148 of the Revised Civil Code. This rule to show cause was heard by Judge Gleason, and on May 31, 1940, Judge Gleason fixed the amount of alimony at $15 per week, or $60 per month, and ordered the husband to pay his wife $30 on the 2nd and the 16th of each month. The ruling of the court, as disclosed by the record, is as follows:
'By Mr. Byrnes [counsel for the husband]: Yes.
'By the Court: Alimony of $60.00 a month, payable $30.00 on the second and $30.00 on the sixteenth of each month.'
For some reason which is not explained, the judgment, which seems to have been prepared by the clerk, ordered the husband to pay $30 instead of $60 a month. But all parties concerned, the litigants and their counsel, understood that the husband had been ordered to pay to his wife $15 per week or $60 per month. The record makes it perfectly clear that the husband understood that he had been ordered to pay to his wife $60 per month. On June 26, only a few days after the judge had fixed the amount of alimony, the husband ruled his wife to show cause why the amount of alimony should not be reduced from $15 to $5 per week, on the ground that he had discovered that his wife had on deposit in a local bank the sum of $1,000. He alleged in his rule to show cause that 'on the ___ day of June, 1940, your mover was ordered to pay the sum of $15.00 per week as alimony for the maintenance and care of his wife', and that she should be ordered to show cause 'on Friday, June 28, 1940 at eleven o'clock A. M. why the alimony judgment herein rendered on June ___, 1940 should not be reduced from $15.00 per week to $5.00 per week'.
Further evidence that the husband knew he had been ordered to pay alimony at $60 per month is found in the fact that he actually paid that amount for more than a year after the rule against him was made absolute.
It seems that he discovered later that the amount of alimony as specified in the judgment was only $30 per month, and that upon this discovery he refused to make further contributions. Thereupon, the wife ruled him into court to show cause why he should not be punished for contempt because of his failure to pay the alimony. In his answer to the rule for contempt, he alleged that he was not due his wife anything for the reason that he had overpaid her; that, whereas he was ordered by the judgment to pay her $30 per month, he had in fact paid her $60 per month, and that therefore he had paid alimony in advance through June, 1942. The rule for contempt was discharged.
Up to this time, the wife was not aware of the error made by the clerk in drafting the judgment. Following this discovery, she made numerous attempts to have the judgment revised so as to make its recitals as to the amount of alimony conform to the ruling of the court. She was not successful in her attempts, and finally, on November 19, 1941, she filed the rule presently involved, in which she alleged that 'the judgment fixing the alimony at $30.00 per month should be amended by increasing same to $60.00 per month for the following reasons, to-wit:
'1. That on May 31, 1940, the Hon. Walter L. Gleason, after hearing the testimony in this matter, fixed the alimony at $60.00 per month, but the Clerk of Court erroneously wrote up said judgment to read $30.00 per month.
She asked that her husband be ordered to show cause 'why the judgment of this Honorable Court fixing the alimony at $30.00 per month should not be amended by increasing same to the sum of $60.00 per month, together with cost, and all general and equitable relief'.
In answer to this rule, counsel for the husband alleged that the question as to the amount of...
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