Duncan v. Roane

• Decision Date: 30 January 1961
• Docket Number: No. 10,10
• Citation: 127 So.2d 191
• Parties: Edith Buckner DUNCAN v. Donald Charles ROANE, Jr.
• Court: Court of Appeal of Louisiana — District of US

Page 191

127 So.2d 191

Edith Buckner DUNCAN v. Donald Charles ROANE, Jr.

No. 10.

Court of Appeal of Louisiana, Third Circuit.

Jan. 30, 1961.

Simon, Trice & Koury, by J. Minos Simon, Lafayette, for defendant-appellant.

Davidson, Meaux, Onebane & Donohoe, by Lawrence E. Donohoe, Lafayette, for plaintiff-appellee.

Before SAVOY, HOOD and CULPEPPER, JJ.

HOOD, Judge.

Defendant, Donald Charles Roane, Jr., has appealed from a judgment of the district court rendered on April 18, 1958, condemning him to pay to plaintiff, his former wife, the sum of $1,580 as arrearages in alimony and child support, and further ordering him to pay the sum of $150 per month, beginning April 15, 1958, for the support of their three minor children. Appellant does not question that portion of the judgment which orders him to pay current support for the children, but he contends that the trial court erred in condemning him to pay arrearages in alimony.

On March 17, 1953, judgment was rendered decreeding a separation from bed and board between plaintiff and defendant, awarding plaintiff the permanent custody of their two minor children, subject to defendant's right of visitation, and ordering defendant to pay unto plaintiff the sum of $150 per month for her support and for the support of the two children. About five months after this judgment was rendered a third child was born to plaintiff.

One year after the rendition of the separation decree plaintiff filed suit for an absolute divorce, and a judgment granting such a divorce was rendered on April 23, 1954. That judgment, however, contained no provisions relating to the custody of any of the children or to the payment of alimony or support.

On November 6, 1957, plaintiff (who had remarried after the judgment of final divorce was rendered) filed a petition praying that a rule issue directing defendant to show cause why the original judgment rendered on March 17, 1953, should not be amended (1) to give plaintiff the custody of her youngest child who was born after the original judgment was rendered, (2) to order defendant to pay plaintiff the sum of $150 per month for the support of the three children, and (3) to fix the arrearages in alimony and support at $6,625 and make that judgment executory. A rule was issued in accordance with the demands contained in that petition.

This rule was tried on November 13, 1957, and at the conclusion of the trial, the trial judge took under advisement the question presented as to arrearages in alimony, but pending a decision on that issue he ordered defendant to pay $150 per month for the support and maintenance of the children, with the provision that $50 of each such payment would be applied toward the payment of any arrearages in alimony 'that the court may find to be due' by defendant. A formal decree to that effect was read and signed on January 13, 1958.

On April 18, 1958, judgment was rendered by the trial court fixing the accrued and unpaid alimony at the sum of $1,580, and condemning defendant to pay that amount to plaintiff. It further was decreed that the judgment rendered on January 13, 1958, be modified by ordering defendant to pay to plaintiff for the support of the three children the sum of $150 per month, with no provision in that judgment for any portion of such payments to be credited to arrearages in alimony. It is from this last judgment that defendant has appealed.

The trial court correctly held that a judgment of divorce abates and renders ineffective a prior judgment of separation from bed and board between the parties, including all incidents flowing therefrom. Thornton v. Floyd, 1956, 229 La. 237, 85 So.2d 499; Bienvenue v. Bienvenue, 1937, 186 La. 429, 172 So. 516; and Bowsky v. Silverman, 1936, 184 La. 977, 168 So. 121. In this case, therefore, the judgment rendered by the trial court on March 17, 1953, condemning defendant to pay alimony and support at the rate of $150 a month, abated and became ineffective on April 23, 1954, when the judgment granting a final divorce was rendered. Insofar as the payment of support is concerned, therefore, the effect of these two decrees is that defendant was obligated to pay the sum of $150 per month from March 17, 1953 until April 23, 1954, which amounted to the aggregate sum of $1,980. Although the separation decree abated and became ineffective when the judgment of final divorce was rendered, plaintiff nevertheless is entitled by summary proceedings to obtain a judgment fixing the amount of alimony or support which accrued before the final divorce was granted and which has not been paid, and to have that judgment made executory. Cotton v. Wright, 1939, 193 la. 520, 190 So. 665: Thornton v. Floyd, supra; Miller v. Miller, 1944, 207 La. 43, 20 So.2d 419.

While the case was pending on appeal defendant filed a plea of prescription of three years, based on Article 3538 of the LSA-Civil Code, the pertinent portions of which provide:

'Art. 3538. The following actions are prescribed by three years:

'That for arrearages of rent charge, annuities and alimony, or of the hire of movables and immovables.

'This prescription only ceases from the time there has been an account acknowledged in writing, a note or bond given, or an action commenced.'

Since the judgment ordering defendant to pay alimony abated on April 23, 1954, and no action was taken by plaintiff to enforce payment of these arrearages until November 6, 1957, defendant contends that plaintiff's right to enforce payment of this past-due alimony has been lost by prescription of three years, under the provisions of the above quoted article of the Civil Code. Plaintiff, on the other hand, contends that the prescription provided in that article does not run against minors and in support of that argument, counsel cites LSA-C.C. Article 3554; Gehrkin v. Gehrkin, 1950, 216 La. 950, 45 So.2d 89: and Pisciotto v. Crucia, 1954, 224 La. 862, 71 So.2d 226.

Article 3554 of the LSA-Civil Code is general in its application. It provides that 'Prescription does not run against minors and persons under interdiction, except in the cases specified by law.' Article 3541 of the LSA-Civil Code, however, specifically provides that the three year prescription provided in Article 3538 'shall run against married women, Minors and interdicted persons, reserving however, to minors and interdicted persons recourse against their tutors or curators.'

In Arabie v. Arabie, 1956, 230 La. 1036, 89 So.2d 890, 891, which involved an award of alimony for the support of a minor child as in this case, the Supreme Court held that the three-year prescription provided by LSA-C.C. Art. 3538 was applicable. In so holding, the court said:

'On the trial of the rule the judge found that defendant had made no alimony payments since the rendition of the 1944 judgment. He concluded, however, that under Article 3541 of the Civil Code the three-year prescription provided in Article 3538 of the Code was applicable even to alimony due for the support of a minor * * *

'In the instant proceeding The trial judge was correct in holding that the prescriptions of 10 years provided in Articles 3544 and 3547 were not applicable, but that The prescription of three years provided in Article 3538 was applicable. See Art. 3541, La.Civ.Code; Wright v. Wright, (189 La. 539, 179 So. 866), Miller v. Miller, and Gehrkin v. Gehrkin, all cited above * * *.' (Emphasis added.)

In Miller v. Miller, supra, although no question of minority was involved, the Supreme Court used the following language which we think has some significance here (207 La. 43, 20 So.2d 421):

'The lawmakers must have taken cognizance of the peculiar nature of a judgment for alimony when they adopted Article 3538 of the Revised Civil Code, providing that actions for arrearages of alimony are prescribed in three years. We think it significant that Article 3541 of the Revised Civil Code provides that the prescription mentioned in Article 3538 runs against married women.'

The two cases relied upon by counsel for plaintiff are not apposite to the issue presented here. Although some language was used in Gehrkin v. Gehrkin, supra, which indicates that the prescription provided in LSA-C.C. Article 3538 may not apply to the claims of a minor, the demand in that case was made within the prescriptive period and apparently no plea of prescription was filed by the defendant, so it was unnecessary for the court to determine whether the prescription provided in that article should be applied. In Pisciotto v. Crucia, supra, no question of minority was involved.

We conclude that in view of the provisions of Articles 3538 and 3541 of the LSA-Civil Code, the prescription of three years provided in Article 3538 is applicable in this case, even though the payments which defendant had been ordered to make to his wife were partially for the support of his minor children. Since more than three years elapsed from the time the judgment ordering the payment of alimony and support abated until a demand was filed by plaintiff for the arrearages, plaintiff's action must be held to have been lost by prescription of three years unless prescription was interrupted by one of the methods provided by law. As will be pointed out later, we feel that the running of prescription has been interrupted.

Defendant contends that he has paid to plaintiff more than the amounts which he was required to pay under the separation decree rendered on March 17, 1953. Plaintiff admits that after the separation decree was rendered she has received from defendant the following sums of money or payments:

(1) In September, 1953, shortly after the birth of the third child, plaintiff received the sum of $1,000.00 from defendant, which plaintiff states was 'to cover the expenses of the baby's birth.'

(2) In October, 1953, she received $200.00 from defendant, which amount was designated at the time as a payment on alimony.

(3) On another occasion, plaintiff asked defendant for money...