King v. King
| Decision Date | 02 September 1971 |
| Docket Number | No. 8552,8552 |
| Citation | 253 So.2d 660 |
| Parties | Barney E. KING, Jr. v. Evie Stewart KING. |
| Court | Court of Appeal of Louisiana — District of US |
Donald M. Fendlason, of Seal, Lee, Fendlason & Branch, Bogalusa, for appellant.
Julian J. Rodrigue, Clint L. Pierson, Jr. and Jeff Bratton, Covington, for appellee.
Before LANDRY, ELLIS and TUCKER, JJ.
Defendant (Wife) appeals from judgment rendered adversely to her in plaintiff's (Husband's) action to terminate alimony payments. Appellee has moved to dismiss the appeal on the ground that appellant did not appeal the judgment ending alimony payments, but instead appealed from the judgment denying defendant's motion for a new trial which judgment is interlocutory and nonappealable. On the merits, the question to be resolved is whether the wife's right to alimony is precluded by a prior separation decree obtained by plaintiff husband on the ground of abandonment.
In July, 1957, plaintiff-husband instituted suit against defendant for separation from bed and board predicated upon defendant's alleged abandonment. Defendant answered the suit on November 22, 1957, on which same date judgment was rendered in favor of plaintiff decreeing a judicial separation between the parties and awarding defendant custody of three minor children of the marriage. The judgment also condemned Mr. King 'to pay to the said Evie Stewart King for herself and minor children alimony in the amount of Three Hundred and No/100 ($300.00) Dollars per month.'
In November, 1958, plaintiff filed for final divorce based on the parties having lived apart since the prior judicial separation. Defendant answered this action on December 19, 1958, on which same date judgment for final divorce was entered in plaintiff's favor. The judgment of divorce also awarded custody of the children to defendant and again ordered plaintiff 'to pay to the said Evie Stewart King for herself and minor children alimony in the amount of Three Hundred and No/100 ($300.00) Dollars per month.
Pursuant to a rule brought by plaintiff to reduce alimony payments because two of the children had married, judgment was signed July 28, 1967, ordering 'that the alimony and child support to be paid by Barney E. King, Jr. to Evie Stewart King is hereby reduced to Two Hundred and No/100 ($200.00) Dollars per month.' On December 5, 1968, plaintiff ruled defendant to show cause why the alimony payments should not be extinguished because the remaining child in defendant's custody no longer resided with defendant. This rule was subsequently continued without date. On June 4, 1969, plaintiff again ruled defendant to show cause why the alimony payments should not be discontinued in their entirety because the remaining child in defendant's custody had married. This latter rule was eventually tried on October 17, 1969, and taken under advisement. On June 8, 1970, judgment was signed extinguishing the alimony payments previously ordered. In written reasons for its judgment terminating alimony payments, the trial court found that defendant's answer to plaintiff's divorce action merely alluded to an agreement pursuant to which plaintiff agreed to pay and defendant consented to accept $300.00 monthly 'for the support and maintenance of their three minor children.' The court further reasoned that since there was no itemization of the amount payable to the children and wife only support for the children was provided in the divorce decree.
Defendant moved for a new trial which motion was heard and denied on July 10, 1970. The minutes of July 10, 1970 show that the trial court denied appellant's motion for new trial on the ground that the judgments awarding alimony did not intend to award plaintiff alimony for herself. The minutes also show that the trial court left open the question of appellant's right to alimony and reserved appellant's right to apply for alimony because the court was of the opinion that the crucial issue of the wife's alleged fault had not been litigated in the separation and divorce proceedings. Judgment denying appellant's motion for new trial was signed July 24, 1970. Appellant was granted a devolutive appeal on August 28, 1970, pursuant to a motion which recited that appellant 'desires to appeal devolutively from the final judgment rendered in the above cause on July 24, 1970.' The required appeal bond was posted by appellant on September 16, 1970.
Meanwhile, on September 3, 1970, appellant ruled plaintiff to show cause why plaintiff should not be compelled to pay appellant permanent alimony. The rule was set for October 16, 1970, on which date plaintiff filed an exception of res judicata contending that the issue of appellant's fault or freedom therefrom was previously adjudicated when plaintiff was granted the separation on grounds of defendant's abandonment. The trial court sustained the exception of res judicata for oral reasons assigned. No formal judgment sustaining the exception of res judicata has been signed.
Unquestionably, the judgment of July 24, 1970, which defendant's motion of August 28, 1970, sought to appeal, was a judgment denying appellant a new trial. It is settled that an appeal lies only from a final judgment or an interlocutory judgment which causes irreparable injury, and that a judgment denying a motion for new trial is neither a final judgment nor an interlocutory judgment which causes irreparable harm. General Motors Acceptance Corporation v. Deep South Pest Control, Inc., 247 La. 625, 173 So.2d 190. Plaintiff, relying on General Motors, above, contends the appeal should be dismissed because appellant's motion for appeal sought not to appeal the judgment of June 8, 1970, which terminated alimony payments, but rather appealed the judgment of July 24, 1970 which denied appellant's motion for new trial. Plaintiff also notes that in appellant's brief it is stated that 'It is from the judgment of the Court maintaining the exception of res judicata and denying Mrs. King alimony that she appeals.'
We believe, however, that the instant case falls within the liberal rule applied in Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312, and Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826.
In General Motors, above, the Supreme Court affirmed the dismissal of an appeal by the Court of Appeal where on review in the Supreme Court, appellant contended that a judgment denying an application for a new...
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... ... However, some courts have found that judgments which either terminate or deny alimony or custody are not governed by C.C.P. 3943. King v. King, 253 So.2d 660 (La.App.1st Cir. 1971), writ refused 260 La. 128, 255 So.2d 353 (1971),1 Derussy v. Derussy, 173 So.2d 544 (La.App.4th Cir ... ...
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...she cannot now be deprived of her alimony. See also Arcemont v. Arcemont, 162 So.2d 813 (La.App.4th Cir. 1964); King v. King, 253 So.2d 660 (La.App.1st Cir. 1971); Hug v. Hug, 230 So.2d 333 (La.App.4th Cir. 1970); Allen v. Commercial Nat'l. Bank in Shreveport, 243 La. 840, 147 So.2d 865 (19......
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