Crosby v. Crosby

• Decision Date: 11 April 1983
• Docket Number: No. 82-CA-205,82-CA-205
• Citation: Crosby v. Crosby, 434 So.2d 162 (La. App. 1983)
• Parties: Vinton J. CROSBY v. Lois Pitre CROSBY.
• Court: Court of Appeal of Louisiana

Page 162

434 So.2d 162

Vinton J. CROSBY v. Lois Pitre CROSBY.

No. 82-CA-205.

Court of Appeal of Louisiana Fifth Circuit.

April 11, 1983.

C. David Schumacher and Carl J. Schumacher, Jr., Schumacher Law Corporation, Ltd., New Orleans, for defendant/plaintiff in rule/appellant.

Robert G. Creely, Amato & Creely, Gretna, for plaintiff/defendant in rule/appellee.

Before BOWES, GAUDIN and DUFRESNE, JJ.

GAUDIN, Judge.

This is an appeal by Lois Pitre Crosby from a judgment of the 24th Judicial District Court denying her permanent alimony. The trial judge found that Mrs. Crosby "... failed to show that she was free from fault..." as required by LSA-C.C. art. 160, which reads, in pertinent part:

"When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony..."

We have very carefully reviewed the record of this two-day hearing, and the only testimony tending to show legal fault on Mrs. Crosby's part concerned her refusal to follow Mr. Crosby when he changed domiciles. This failure runs afoul of LSA-C.C. art. 120, which states:

"The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obligated to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition."

For reasons following, we find Art. 120 unconstitutional in that it discriminates against women on the sole basis of gender by arbitrarily forcing them to follow husbands wherever they chose to live, in clear violation of equal protection clauses of the federal and state constitutions.

As Mrs. Crosby's unwillingness "... to live with her husband and to follow him..." was the solitary reason she was denied permanent alimony, we reverse the district court decree and remand with instructions to the trial judge to schedule another hearing and determine the amount, if any, of permanent alimony. As Mr. Crosby's tugboat business was in a state of fluctuation when the prior rule was heard and because Mrs. Crosby's income and needs require an update, another hearing is appropriate.

The very wording of Art. 120 denies women equal protection of the laws. In striking down an Alabama statute because different treatment was accorded men and women on the basis of sex, the United States Supreme Court, in Orr v. Orr, 440 U.S. 268, 279, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306 pointed out:

"To withstand scrutiny under the equal protection clause, classification by gender must serve important governmental objectives and must be substantially related to those objectives."

We cannot envision any "important governmental objectives" served by Art. 120.

See also Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1763, 36 L.Ed.2d 583; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225; and Lovell v. Lovell, 378 So.2d 418 (La.1979), in which the Supreme Court of Louisiana found LSA-C.C. art. 160 ¹ unconstitutional and stated:

"... Art. 160, prior to its amendment ..., was similar in all relevant respects to Alabama's alimony statutes found to be unconstitutional in Orr v. Orr. Accordingly, we are compelled to declare ... Art. 160 unconstitutional as violative of the equal protection clauses..."

The Supreme Court of Louisiana, in Craig v. Craig, 365 So.2d 1298 (La.1978), also found LSA-C.C. art. 39 unconstitutional as it allowed a husband but not a wife to establish a separate domicile.

The 14th Amendment to the Constitution of the United States guarantees equal protection of the laws; as does Article 1, Section 3 of the Constitution of the State of Louisiana, which provides:

"No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations ..."

We note that the constitutional issue was neither pleaded by Mrs. Crosby in the district court nor raised as an issue following the fault hearing. The trial judge took the matter under...