Collins v. Collins

• Decision Date: 07 November 1984
• Docket Number: No. 83-1019,83-1019
• Citation: 458 So.2d 1008
• Parties: Newton L. COLLINS, Plaintiff-Appellee, v. Pearley L. COLLINS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1008

458 So.2d 1008

Newton L. COLLINS, Plaintiff-Appellee, v. Pearley L. COLLINS, Defendant-Appellant.

No. 83-1019.

Court of Appeal of Louisiana Third Circuit.

Nov. 7, 1984.

Rivers & Beck, Robert L. Beck, Jr., Alexandria, for defendant-appellant.

Robert L. Kennedy, Colfax, for plaintiff-appellee.

Before FORET, DOUCET and KNOLL, JJ.

DOUCET, Judge.

This is an appeal from an amended judgment of separation denying alimony pendente lite and finding mutual fault.

On January 19, 1983, after more than thirty years of marriage, Newton Collins filed a Petition for Separation based on cruel treatment. Pearley Collins answered and filed a Reconventional Demand alleging cruel treatment and abandonment, and seeking alimony pendente lite.

After a hearing Pearley Collins was granted alimony pendente lite in the amount of $400.00 per month. On motion of Newton Collins, this award was terminated on July 28, 1983. The trial judge in his reasons for judgment stated that Mr. Collins' sole source of income was his Veterans' benefits in the amount of $2,021.00 per month received due to his blindness, and held that federal law exempts these benefits from awards of alimony pendente lite.

At the trial on the merits, judgment was rendered granting a separation from bed and board to Newton Collins and finding mutual fault. An amended judgment was signed on September 14, 1983, incorporating the court's previous judgment denying alimony pendente lite.

Pearley Collins appeals the adverse rulings.

VETERANS BENEFITS

In his reasons for judgment the trial judge found that Mr. Collins had virtually no source of income other than his Veterans' benefits. He stated that Veterans' benefits are exempt from awards of alimony pendente lite by the language of the Statute. 38 U.S.C.A. Sec. 3101(a) states with regard to Veterans' benefits that:

"Payments of benefits due or to become due under any law administered by the Veterans' Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary."

Based on this language the trial judge concluded that Mrs. Collins is not entitled to an award of alimony pendente lite and terminated the previous award. We disagree.

Under our law, marriage is a civil contract. La.C.C. Art. 86. Its legal effects and consequences are regulated by the laws of the State. La.C.C. Art. 87. One of the consequences of the contract of marriage is the duty to support which one spouse owes another. La.C.C. Art. 119; Hingle v. Hingle, 369 So.2d 271 (La.App. 4th Cir.1979). The legal effects and consequences continue until the marriage is dissolved by death or divorce. "Separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal cohabitation, and to the common concerns, which existed between them." La.C.C. Art. 136. The right to alimony pendente lite of a needy spouse springs from the duty of support which one spouse owes another until death or divorce ends the marriage. La.C.C. Art. 148; La.C.C. Art. 119; Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3rd Cir.1983); O'Pry v. O'Pry, 425 So.2d 986 (La.App. 5th Cir.1983); Hingle v. Hingle, supra. To deny the obligation to pay alimony pendente lite would be to deny the obligation of spouses to support one another during marriage.

Mr. Collins was obliged to, and did support Mrs. Collins out of his Veterans' benefits during the time they lived together. His obligation to support her out of whatever income and assets are available to him continues until their marriage is dissolved by divorce.

An award of alimony pendente lite is not an "attachment, levy, or seizure" as contemplated in 38 U.S.C.A. Sec. 3101(a).

"Article 148 alimony provides for judicial enforcement of the husband's obligation to support her under Arts. 119 and 120. These obligations result from the marriage itself and are not a mere appendage to separation and divorce proceedings. Cortes v. Fleming, 307 So.2d 611 (La.1973), Small v. Small, 173 So.2d 854 (La.App. 4th Cir.1965). The obligations are not 'debts' due by the spouses but are simply recognized legal duties to be enforced by the court by means of an alimony order. 'A right to receive or demand support (or money, in order to afford support) is something other and different than a right to receive and be paid a technical legal debt.' State v. King, 49 La.Ann. 1503, 22 So. 887 (1897)." Gondrella v. Gondrella, 347 So.2d 938 (La.App. 4th Cir.1977).

The provisions of 38 U.S.C.A. Sec. 3101(a) do not apply to awards of alimony pendente lite. The duty to pay alimony pendente lite does not arise as the result of the judicial process. An award of alimony pendente lite is the legal enforcement of a marital duty rather than a process for the collection of a debt. If no other income is available for the purpose, Mr. Collins must...