Cortes v. Fleming
| Decision Date | 24 September 1973 |
| Docket Number | No. 52963,52963 |
| Citation | 307 So.2d 611 |
| Parties | Maria Haydee CORTES v. Stanley E. FLEMING, a/k/a Egon Stanley Migocky. |
| Court | Louisiana Supreme Court |
William F. Wessel, Earl J. Higgins, New Orleans, for plaintiff-applicant.
Richard J. Boutall, Metairie, for defendant-respondent.
Vezina, Bordelon & Carimi, Owen J. Bordelon, Jr., Gretna, as amicus curiae.
Walter B. Stuart, IV, New Orleans, for absent heirs.
The question posed here is whether or not alimony is a civil effect of a marriage which may be awarded the good faith wife as an incident to an annulment proceeding. We answer affirmatively.
On March 3, 1965, plaintiff and defendant were married in Managua, Nicaragua. At the time of that ceremony, Fleming was legally married to another. Immediately upon discovering this bar to her marriage, plaintiff filed a suit for annulment; coupled with the demand for annulment, alleging her good faith, was a demand for permanent alimony. The Civil District Court for the Parish of Orleans, Division C, annulled the marriage, found that plaintiff was in good faith in entering the marriage, and awarded her as a putative wife, permanent alimony in the amount of $300 per month. He appealed to the Fourth Circuit Court of Appeal on the question of alimony awarded. That court reversed, holding that a putative wife could not recover permanent alimony in an action to annul a marriage. 267 So.2d 236 (La.App., 1972). We granted writs.
Civil Code Articles 110 to 118 speak of nullity of marriages. Article 117 provides:
'The marriage, which was been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.'
Article 118 provides:
'If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.' 1
Civil Code Article 119, under the title, 'Of the Respective Rights and Duties of Married Persons' provides:
'The husband and wife owe to each other Mutually, fidelity, support and assistance.'
(Emphasis here and elsewhere supplied)
We have broadly construed the putative marriage provision of our Civil Code in favor of the children of the marriage and the parties in good faith in determining the civil effects of such a marriage. 2 The jurisprudence has declared the following to be civil effects which flow from putative marriage: The legitimacy of the children. Succession of Chavis, 211 La. 313, 29 So.2d 860 (1947); Succession of Gibson, 186 La. 723, 173 So. 185 (1937); Miller v. Wiggins, 149 La. 720, 90 So. 109 (1921); Texas Co. v. Stewart, 101 So.2d 222 (La.App., 4th Cir. 1958); the right of the putative wife to claim workmen's compensation from her husband's employer. Fulton Bag and Cotton Mills v. Fernandez, 159 So. 339 (La.App., 4th Cir. 1935). See also Jackson v. Swift and Co., 151 So. 816 (La.App., 2nd Cir. 1934); the right of the putative wife to her proportionate share of the community property. Texas Co. v. Stewart, supra; Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956); Succession of Fields, 222 La. 310, 62 So.2d 495 (1952); Succession of Chavis, supra; Patton v. City of Philadelphia and New Orleans, 1 La.Ann. 98 (1946); the right of the putative wife to inherit as a wife in the succession of the husband. Succession of Navarro, 24 La.Ann. 298 (1872); Kimball v. Folsom, 150 F.Supp. 482 (D.C.1957); the right of the putative wife to be considered as the 'widow' under her husband's insurance policy. Jones v. Equitable Life Assurance Society of the United States, 173 So.2d 373 (La.App., 1st Cir. 1965); cert. denied, 247 La. 1019, 175 So.2d 302 (1965); the right of the putative wife to the marital portion, when she is otherwise qualified. Smith v. Smith, 43 La.Ann. 1140, 10 So. 248 (1891).
Although the Code articles appear to dispose clearly of the issue before us, i.e., within its intendment of civil effects is contemplated alimony, and although the above cases declaring specific civil effects of a marriage would also by analogy clearly appear to contemplate that alimony would be a civil effect of a putative marriage, there are cases cited to us which hold to the contrary. However, a perusal of this jurisprudence will establish that it is not reliable as valid judicial interpretation.
In State v. Barilleau, 128 La. 1033, 55 So. 664 (1911), considering jurisdiction of criminal prosecution for alimony for the Child of a wife of a marriage under an annulment attack in a civil suit, the court held that the juvenile court had jurisdiction to enforce the wife's claim for maintenance for the Child under Act 34 of 1902. This was the only issue before the court. The wife claimed nothing for herself in this prosecution, however, that court proceeded, in dictum, to state that an award for alimony for the wife as well as support for the child was not incidental to a suit to annul the marriage. The court cited Articles 148 and 160 of the Civil Code which treat only of the right of a Wife to alimony in a separation or in a divorce proceeding. The child's right to alimony is fixed by Articles 227, 230, 231 and other provisions treating of paternal authority. The Child, having a right established under those articles, could not have that right attected by the remedy afforded to a Wife under articles dealing with separation and divorce. The court, in Barilleau, cites three totally inapposite cases as authority for holding that a demand for alimony is not incidental to a suit for annulment of marriage. Not only was the holding erroneous, but as previously stated, it was made in passing and unnecessary to a determination of the issue before the court. The three cases are State ex rel Hill v. Judge, 114 La. 44, 38 So. 14 (1905); State ex rel Stuart v. Judge, 50 La.Ann. 559, 23 So. 445 (1898); and State v. Seghers, 124 La. 115, 49 So. 998 (1909), which only concern themselves with the distinction between the award for support in the suit for separation from bed and board under Article 148, and the award of alimony in a suit for divorce under Article 160. It should be noted that the cases cited by Barilleau, and Barilleau itself, never cite nor consider the effect of the articles pertinent to a putative marriage, which give to a good faith wife of an annulled marriage, All of the civil effects of that marriage.
The first case which follows Barilleau, State v. Donzi, 133 La. 925, 63 So. 405 (1913), cites, without any discussion, the Barilleau case as authority for holding that a defendant in a criminal prosecution, under Act 34 of 1902, cannot present evidence of a legal impediment to the marriage attributable to the wife in order for him to prove that the wife was without 'just cause'. Monteleone v. O'Hanlon, 159 La. 796, 106 So. 308 (1925), in holding that a reconventional demand for separation in an annulment suit was improper, dismissed the alimony demand in passing, with only this authority, 'the issue here involved has been set at rest in State v. Barilleau'.
In State v. Ponthieaux, 232 La. 121, 94 So.2d 3 (1957), determining jurisdiction in a non-support proceeding in juvenile court, the court stated: 'Alimony is not an incident to a suit to annul a marriage and is, therefore, not recoverable in such a proceeding', citing State v. Barilleau and Monteleone v. O'Hanlon.
Thus it may be seen that these cases began with erroneous dictum and follow through with acceptance of the dictum as total authority without recourse to the Civil Code articles which we interpret here, Articles 117, 118 and 119. The cursory and sometimes unwarranted consideration given by these cases to the serious issue before us requires us to closely scrutinize the statements and holdings on that issue in those cases. We are required by codal mandate to resolve this problem under the Code and not merely by reference to jurisprudence. Civil Code Article 1.
Argument is made that since alimony for the wife is only provided statutorily (codally) as ancillary to a divorce proceeding, it cannot be a civil effect of a Marriage but is an effect of the Divorce. That argument falls in the face of the express language of Civil Code Article 119. 3 Moreover, if this rationale were worthy of consideration we would have to say that the right of the putative wife to be considered as the widow under her husband's insurance policy, in Jones v. Equitable, supra, is not a civil effect of the Marriage but an effect of the Death.
More closely in point, in Smith v. Smith, supra, we held the widow's portion, or the marital portion, i.e., the right of a wife to claim one-fourth of her husband's succession when she is in necessitous circumstances, is a civil effect of the marriage. The court said:
'The words 'civil effects' are used without restriction, and necessarily embrace all civil effects given to marriage by the law; or, in the language of Marcade in commenting on the identical article in the French Code, such a marriage, 'although actually null, has the same effects as if it were not null,--the ordinary effects of a valid marriage.
* * * Every marriage, though invalid, if contracted in good faith, produces the effects of a valid marriage in the interval between the celebration and the judicial declaration of nullity. When once such declaration intervenes, the marriage produces no further effect; but, be it understood, the effects produced remain forever.' 1 Marcade , 525.'
The court there admitted that the marital portion under our Code article 2382 was derived from Spanish law, and that in the Spanish law there was no general provision giving civil effects to good faith parties of putative marriages. They admitted that under Spanish law only the legitimate wife under a valid marriage could claim the maritial portion. They reasoned, and correctly so, that the controlling factor for determining...
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...personality terminated with her death. La. C.C. arts. 24-25. A judgment rendered for or against a dead person is a nullity. Cortes v. Fleming, 307 So.2d 611 (La.1973). The appeal in this case was taken before Rainey died. At that point in time, the jurisdiction of the trial court was divest......
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