Gravier v. Gravier

• Decision Date: 25 May 1942
• Docket Number: 36665.
• Citation: 8 So.2d 697,200 La. 775
• Court: Louisiana Supreme Court
• Parties: GRAVIER v. GRAVIER.

8 So.2d 697

200 La. 775

GRAVIER v. GRAVIER.

No. 36665.

Supreme Court of Louisiana

May 25, 1942

Dissenting Opinion June 8, 1942.

LeDoux R. Provosty, of Alexandria, for plaintiff-appellee.

Harold W. Hill, of Alexandria, for defendant-appellant.

HIGGINS Justice.

The wife moved to dismiss the suspensive appeal taken by her husband from a judgment awarding her $300 per month alimony pendente lite in a separation from bed and board proceeding, alleging that the award is not a final judgment but an interlocutory order subject to modification in the discretion of the trial judge and that, as the husband will not suffer irreparable injury, his remedy is to invoke the supervisory jurisdiction of this court.

In his brief, counsel for the plaintiff and appellee concedes that under recent decisions of this court, the husband who has been condemned to pay his wife alimony pendente lite, in a divorce or a separation from bed and board proceeding, is entitled as a matter of right to a suspensive appeal. He contends, however, that under the early jurisprudence, Imhof v. Imhof, 1893, 45 La.Ann. 706, 13 So. 90, and the cases therein cited, this court recognized that an award of alimony pendente lite was merely an interlocutory order and subject to change according to circumstances and conditions, as the trial judge might determine. He also argues that the earlier cases adopt a sounder view of this problem.

The defendant and appellant's attorney counters by stating that no matter how interesting this legal question might be, it is now stare decisis.

In the case of Cotton v. Wright, 187 La. 265, 266, 174 So. 351, 352, the wife sued the husband for a separation from bed and board on the ground of cruel treatment, and for alimony pendente lite. The trial judge condemned the husband to pay the wife alimony pendente lite in the sum of $19.85 per week for the support and maintenance of herself and her minor children. After the district court refused to grant the husband a suspensive appeal, he applied to this court for writs of certiorari prohibition, and mandamus. In holding that the relator was entitled to a suspensive appeal and in directing the trial judge to grant him an order therefor, we said: 'This court has repeatedly held that, under articles 575 and 580 of the Code of Practice, a judgment for alimony pendente lite may be appealed from suspensively. This is no longer an open question but is the settled jurisprudence on this subject. Weyand v. Weyand, 169 La. 390, 125 So. 282; Ramos v. Ramos, 173 La. 407, 137 So. 196; Demerell v Gerlinger, 183 La. 704, 164 So. 633.'

In the case of Demerell v. Gerlinger, supra, the husband sued his wife for a separation from bed and board. The district judge awarded the wife alimony at the rate of $40 per month pendente lite and the husband perfected a suspensive appeal therefrom. She moved to dismiss the appeal on the same grounds urged in the instant case and in deciding the issue adverse to her, the court said:

'The defendant has filed a motion to dismiss the appeal. The motion to dismiss is based upon C.C. art. 148, and the dissenting opinion in Weyand v. Weyand, 169 La. 390, 125 So. 282. The appellant, in his opposition to the motion to dismiss the appeal, relies upon Const. art. 7, � 10; Gormley v. Gormley, 161 La. 121, 122, 108 So. 307; Ramos v. Ramos, 173 La. 407, 137 So. 196, 197. In the last-cited case, this court, on a motion to dismiss the appeal, quoted from the cases of State ex rel. Grescent City Bank v. Judge, 17 La.Ann. 186, and State ex rel. Ingram v. Judge, 20 La.Ann. 529, and said:

"There is no law denying to one cast for alimony, pendente lite, the right to appeal suspensively from the judgment rendered. Hence, in the absence of a law denying such right, the inference would seem to be, under articles 575 and 580 of the Code of Practice, and under the jurisprudence, cited above, that a judgment for alimony may be appealed from suspensively."

While this court has the power to modify and overrule its former decisions, it has never done so unless it appeared that error had been committed or that the rule announced therein was working hardships or injustices. In cases like the present one, it is true the wife may suffer some disadvantage in not receiving alimony during the pendency of the case on appeal, but if she is successful, she will receive the alimony awarded because the husband is required to furnish a solvent bond securing the payment thereof. On the other hand, if the husband is denied a suspensive appeal and is compelled to pay the wife alimony but eventually wins the case on appeal by showing that the wife was not entitled to such alimony, he will suffer a loss which cannot be recovered.

In the light of the foregoing authorities, we consider the jurisprudence settled that the husband who is condemned to pay alimony pendente lite for the support and maintenance of his wife, is entitled to a suspensive appeal from such a judgment, in a divorce or a separation from bed and board proceeding.

For the reasons assigned, the motion to dismiss the appeal is denied.

O'NIELL, Chief Justice (dissenting).

The ruling in this case is founded upon the error which was made originally in the case of Ramos v. Ramos, 173 La. 407, 137 So. 196. The error was in the court's holding that there was no law denying the right to a suspensive appeal from an order to pay alimony pendente lite. The law which denies the right to a suspensive appeal from an order to pay alimony pendente lite is in article 566 of the Code of Practice, where it is declared, substantially, that the right to appeal from an interlocutory judgment is limited to interlocutory judgments that might cause the appellant an irreparable injury. The declaration in Ramos v. Ramos, that there was no law denying the right to a suspensive appeal from an order to pay alimony pendente lite was repeated in Weyand v. Weyand, 169 La. 390, 125 So. 282, decided in 1929. The Ramos case was decided in 1927 but was not yet reported when the Weyand case was decided. The declaration--that there was no law denying the right to appeal suspensively from an order to pay alimony pendente lite--was quoted again from Ramos v. Ramos in Demerell v. Gerlinger, 183 La. 704, 164 So. 633; where the court cited also Gormley v. Gormley, 161 La. 121, 108 So. 307; but the appeal in the Gormley case was from a final judgment rejecting a demand for a separation from bed and board, and it was held there that the appeal did not bring up for review the wife's complaint that the husband had quit paying alimony after the suit for separation from bed and board was dismissed. The decision therefore had nothing to do with the question whether a man has the right to avoid his duty to support his wife during the pendency of a suit for divorce or for separation from bed and board, by taking a suspensive appeal from the order commanding him to support his wife during the pendency of the suit.

An order to pay alimony pendente lite is, in its very nature, an interlocutory order, because it abates when the suit for a divorce terminates. Lee v. Koester, 155 La. 756, 99 So. 588; Cotton v. Wright, 193 La. 520, 190 So. 665.

The ruling that an order to pay alimony pendente lite may be suspended at the will of the man who is ordered to pay the alimony pendente lite, by his taking a suspensive appeal and furnishing a bond to pay in a lump sum the accumulations which ought to go to the support of the wife during the pendency of the suit, is not consistent with the phrase 'pendente lite'. The allowing of a suspensive appeal from such an order thwarts the purpose of allowing alimony pendente lite. Article 148 of the Civil Code, which is the authority for allowing alimony pendente lite, declares that, in a suit for divorce or for separation from bed and board, if the wife has not a sufficient income for her maintenance while the suit is pending, the judge shall allow her a sum for her support, proportioned to her needs and to her husband's means. That is a law of public policy. It is a means of compelling performance of the duty which every married man owes to his wife--as declared in article 120 of the Civil Code--'to furnish her with whatever is required for the convenience of life, in proportion to his means and condition'.

The reason why the writers of the Civil Code deemed it necessary to provide, as they did in article 148, for the enforcement of the husband's obligation to support his wife during the pendency of a suit for divorce or for separation from bed and board, is that during that period the husband and wife are separated and he is apt to...