Graval v. Graval

• Decision Date: 14 February 1978
• Docket Number: No. 8833,8833
• Parties: Barbara Lee Wollman, wife of Binks Arthur GRAVAL v. Binks Arthur GRAVAL.
• Court: Court of Appeal of Louisiana — District of US

Page 1057

355 So.2d 1057

Barbara Lee Wollman, wife of Binks Arthur GRAVAL v. Binks Arthur GRAVAL.

No. 8833.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 14, 1978.

Nel F. Vezina, Gretna, for defendant-appellant.

Reed, Reed & D'Antonio, Floyd J. Reed, Metairie, for plaintiff-appellee.

Before LEMMON, STOULIG, and GARSAUD, JJ.

GARSAUD, Judge.

This case is a procedural labyrinth designed to test the patience of the most long-suffering trial judge. An attempt will first be made to unravel the maze, as the myriad of rules filed becomes important in our substantive decision.

On March 28, 1974, a judgment was rendered for separation from bed and board in favor of Mrs. Binks Arthur Graval, herein the appellee, against her then-husband Binks Arthur Graval, herein the appellant. The judgment awarded $500 a month alimony pendente lite and $500 a month child support for one child, Kelly. On August 19, 1975 a rule was issued, directing Binks Arthur Graval to show cause why he should not be adjudged in contempt for failure to pay alimony, and why said judgment should not be rendered against him and immediately made executory for the sum of $5,000 for past-due alimony pendente lite. On August 22, 1975 the $5,000 past-due alimony was made executory to be paid within a year, defendant was held in contempt, and the Court ordered him to pay $300 a month child support and $200 a month alimony.

On October 23, 1975 another rule was filed by Mrs. Graval for contempt and to make past-due alimony executory, this time in the amount of $1,500, including a part for child support. On November 18, 1975 a judgment was rendered in the district court, decreeing that the defendant be held in contempt for failing to pay alimony, and further decreeing that the defendant shall have the right to purge himself of his contempt by paying the plaintiff the sum of $5,000, within one year from the date of the hearing, in no event later than August 22, 1976.

On November 17, 1975, the day before the above judgment, a rule for decrease in alimony was filed by Mr. Graval. The basis of this rule was the plaintiff's lack of need and the defendant's inability to pay. This rule was set for hearing on November 21, 1975. Subsequent thereto, a motion for continuance on the part of Mrs. Graval as a result of a change in legal counsel was granted to Friday, December 5, 1975. This rule was continued to December 17, 1975, then to December 18, 1975, and finally on December 18th was continued without date, and again on December 21, 1975 it was ordered to be continued without date.

On November 23, 1976, nearly a year later, another rule for contempt was filed against Mr. Graval, alleging that he was now in arrears in the total amount of $9,600, and requesting that the amount be made executory.

On November 29, 1976, a final judgment of divorce was granted, which gave the wife the permanent custody of the minor child, and further ordered the defendant to pay child support in the amount of $300 a month and permanent alimony in the amount of $200 a month. On December 7, 1976, Mr. Graval filed another rule to decrease alimony, alleging a drastic change in the financial situations of the defendant and the plaintiff. On December 13, 1976, a hearing was finally held on the contempt rule brought by Mrs. Graval for alimony in arrears, as well as the rule to reduce filed by Mr. Graval.

On January 7, 1977, the trial court rendered a judgment dismissing the rule to reduce which had been filed by Mr. Graval. It is also assumed that this dismissal included the dismissal of the rule which had been continued without date previously filed in 1975, although no specific mention is made of this. However, it is reasonable to conclude that this was the disposition of that rule, as there is no other evidence that it had ever been heard. The trial judge commented at this time that he dismissed the rule as a result of the arrearages, and as soon as Mr. Graval was current, he would be entitled to file a new motion to reduce. In this January judgment, the Court found that the balance in arrearages from prior judgments was $3,955. He specifically stated it was in addition to the $5,000 which previously had been made executory. He further found Mr. Graval in contempt of court, and sentenced him to Parish Prison for 90 days, suspending the sentence and placing Mr. Graval on probation for one year. The condition of his probation was that he make a payment of $50 per week on the $3,955 judgment until the matter was satisfied. This $50 was in addition to the $300 monthly for child support and $200 monthly for alimony.

On January 12, 1977 Mr. Graval filed a new rule to terminate alimony, alleging that Mrs. Graval had obtained employment on or about September 1, 1976. This rule was continued to February 18, 1977, at which time a further continuance was requested by Mrs. Graval as a result of her obtaining new legal counsel. On March 2, 1977, Mrs. Graval then filed a rule to increase child support, to make past-due alimony and child support executory, and for contempt of court. On March 14, 1977 Mr. Graval filed a rule to change custody, terminate and/or reduce child support, and a rule for contempt and specific visitation. These rules were all heard together on March 19, 1977. The procedural nightmare was continued when the new attorney for the appellee indicated that his rule for contempt and to make past-due alimony executory was superfluous, as he had learned of the January 7, 1977 judgment in this regard only the day before the March 19, 1977 hearing. Thus, this issue was not argued on March 19, 1977. The trial judge directed counsel then to prepare a judgment for his signature based on the judgment rendered in open court on January 7, 1977.

On April 5, 1977, the judgment of January 7, 1977 was signed by the trial court. Further, on April 5, 1977 a judgment was rendered on the three rules heard on March 19, 1977, but that judgment was not signed until April 6, 1977. In this latter judgment, the Court ordered that the alimony be terminated, that the rule to increase child support be made absolute, and condemned Binks Graval to pay $500 a month child support. It further decreed that the rule to make past-due child support executory and for contempt of court be dismissed, and finally ordered that the rule to terminate or reduce child support and to change custody be dismissed.

The resulting chaos spilled over into the appellate process when, in his motion for appeal, appellant specifically stated that he desired to appeal devolutively from the final judgment rendered on the 5th day of April, 1977 and signed on the 6th day of April, 1977. Further, in his appeal bond, he repeats the specific dates alluded to. An appeal bond of $300 was set in the matter. In his brief, and before this Court in oral argument, counsel for appellant indicates that he intended to appeal the judgment rendered January 7, 1977 but not signed till April 5, 1977, and he thought in fact he had done so by his motion for appeal. In his brief, the appellee recognizes the difficulty and argues simply that the matters in the January judgment are not before this Court on appeal. The appellee's brief does not consider in the alternative the issues raised by the judgment of January 7, 1977. When inclined to permit the appeal on both judgments, this Court, through the Clerk's office, invited an additional brief from attorney for appellee.

The appellant argues the following issues on appeal:

(1) Whether the court's termination of alimony should have been retroactive to the date of filing of the rule;

(2) Whether the wife is entitled to alimony after she becomes a full-time employee with sufficient funds for her maintenance, and where the husband has not sufficient funds to pay the same;

(3) Whether the imposition of a 90-day sentence in Parish Prison for contempt was an abuse of judicial discretion. (The argument is that the alimony payments were paid to the parents of the wife and not directly to the wife, but in his decision of January 7, 1977 the trial Court stated that he could get no credit for these payments as the Court ordered him to pay the alimony and child support to the wife and no one else);

(4) Whether the wife should be entitled to custody when the child is not living with her;

(5) Whether the payment of $500 monthly in child support is excessive.

The first issue which must be resolved is whether the appellant properly appealed from the judgment rendered on January 7, 1977. To reiterate, the judgment of January 7, 1977 made absolute the rule to make past-due alimony and child support executory, and rendered a judgment in this regard in favor of plaintiff in the sum of $3,955. Further, it made absolute the rule for contempt against Binks Graval, and ordered him sentenced to 90 days in Parish Prison, which sentence was suspended, and defendant placed on probation, a condition of which was the payment of $50 per week to be applied toward the retirement of the executory judgment rendered therein.

The question of whether the appeal is proper poses a vexing question for this Court. It is easily understood how counsel for appellant could consider that his motion for appeal covered all issues, as the prior skirmishes (and unfortunately we can find no better description) in this matter could lead one to total confusion. Be that as it may, it is our view that this matter is governed by Loyacano v. Loyacano, 311 So.2d 910 (La.App. 4th Cir. 1975), writ refused 313 So.2d 847 (La.1975), where two judgments were so interrelated, one of June 7th and one of July 26th, that an appeal taken from the judgment entered on "the 26th day of July" was considered also an appeal from the June 7th judgment. In that case, neither judgment had become definitive. Here we have simply a continuum of rules arising in the same context, and all very much interrelated. Also, neither judgment had become definitive when the motion...