Kirchberg v. Feenstra, Civ. A. No. 76-842.

• Decision Date: 21 April 1977
• Docket Number: Civ. A. No. 76-842.
• Citation: 430 F. Supp. 642
• Parties: Karl J. KIRCHBERG v. Joan Paillot FEENSTRA et al.
• Court: U.S. District Court — Eastern District of Louisiana

430 F. Supp. 642

Karl J. KIRCHBERG v. Joan Paillot FEENSTRA et al.

Civ. A. No. 76-842.

United States District Court, E. D. Louisiana.

April 21, 1977.

William R. Brough, New Orleans, La., for plaintiff.

Barbara Hausman-Smith, Jack Mark Stolier, George M. Strickler, Jr., New Orleans, La., for defendant.

ORDER

SEAR, District Judge:

A hearing was held on a prior day on the motion of the State of Louisiana for summary judgment on the second counterclaim of Joan P. Feenstra. Following oral argument and the submission of additional memoranda, the matter was taken under submission.

The facts are not in dispute. Defendant and plaintiff in counterclaim, Joan P. Feenstra, filed state criminal charges against her husband Harold C. Feenstra in October, 1974. While incarcerated on that charge, Feenstra hired Karl J. Kirchberg, attorney at law, plaintiff and defendant in counterclaim, to represent him in connection with the criminal charge. In payment of Kirchberg's legal fees, Feenstra executed a promissory note dated October 17, 1974 for $3,000.00 payable to the order of Kirchberg with interest at the rate of 8% per annum. The note provided for attorney's fees in case payment was not timely made. On October 22, 1974, Feenstra executed an act of mortgage on his family home as security for the promissory note he had issued to Kirchberg. The home was the community property of the Feenstras and title was held in the name of both spouses.

Ms. Feenstra was unaware that her husband had mortgaged their home until February, 1976, when, after default on the mortgage, Kirchberg instituted foreclosure proceedings in state court. Ms. Feenstra opposed the foreclosure, contending that Kirchberg had violated the Truth in Lending Act, 15 U.S.C. § 1601, et seq. Thereafter, Kirchberg instituted this proceeding for declaratory judgment that he had not violated the Act. Ms. Feenstra counterclaimed and seeks a declaratory judgment (a) that Kirchberg had violated the Act, and (b) that the provision of Louisiana law which permitted Feenstra to mortgage their home without her knowledge or consent violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The State of Louisiana was made a third party defendant on Feenstra's second counterclaim. Cross motions on the issues addressed to the Truth in Lending Act were previously denied; we now consider the Fourteenth Amendment question.

The provision of Louisiana law that Ms. Feenstra contests as unconstitutional is Louisiana Civil Code article 2334 which since this suit was filed has been amended and the provision which Ms. Feenstra finds objectionable changed.¹ The amendment, however, did not become effective until January 1, 1977, so it has no effect on this case. Article 2334 before its amendment provided:

"The property of married persons is divided into separate and common property.

"Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.

"The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.

"Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.

"Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared. But when the title to community property stands in the name of the wife, it cannot be mortgaged or sold by the husband without her written authority or consent.

"Where the title to immovable property stands in the names of both the husband and wife, it may not be leased, mortgaged or sold by the husband without the wife's written authority or consent where she has made a declaration by authentic act that her authority and consent are required for such lease, sale or mortgage and has filed such declaration in the mortgage and conveyance records of the parish in which the property is situated."

Ms. Feenstra challenges the last paragraph of the article, which prohibited the husband from leasing, selling, or mortgaging community immovables when the wife had filed the declaration described. She contends that to require the wife to file such a declaration to protect her property interests, when the husband need not, violates the Equal Protection and Due Process Clause of the Fourteenth Amendment.²

The Court considered the issues raised by Ms. Feenstra were of a nature that the civilian academicians might want to express their views and accordingly invited the four Louisiana law schools, the Louisiana Law Institute and the Louisiana State Bar Association to file amicus curiae briefs. None accepted the invitation.

Equity would seem to require that the complaint here presented be resolved in favor of the wife whose husband mortgaged her home to raise funds for the defense of criminal charges brought against him by the wife and who then defaulted on the obligation which it secured. But at stake here is the bedrock of Louisiana's community property system.

We believe that Ms. Feenstra's complaint is not so much with the last paragraph of former article 2334, but with the general power which remains unchanged by the 1976 amendment to article 2334 of the husband to administer community property as head and master of the community as described in La.Civil Code art. 2402:

"The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife." (emphasis supplied)

The power of the husband to alienate was without limitation until 1912 when article 2334 was amended by La.Acts 1912, No. 170 to require the wife's written authority or consent for the husband to sell community property standing in the name of the wife alone. It was not until 1962, that the last paragraph of article 2334 was added³ to restrict the husband's power to alienate community immovables standing in the names of both spouses. The constitutional attack on the last paragraph of article 2334 is, we believe, somewhat misplaced; if it were not for that paragraph, the husband would have unhindered power to alienate community immovables standing in the names of both the husband and wife. Therefore, we consider that Ms. Feenstra's challenge is to the operation of both articles 2404 and 2334.

Equal protection analysis of alleged sex-based discrimination must necessarily begin with Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 which involved a successful equal protection attack on an Idaho statute which preferred males over females in the selection of estate administrators when both were of equal entitlement otherwise. In discussing the Equal Protection Clause, the Court stated:

"In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny the power to States to treat different classes of persons in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification `must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'"

404 U.S. at 75-76, 92 S.Ct. at 253-54, 30 L.Ed.2d at 229 (citations omitted).

The Court found that the object of the statute, which was "to eliminate one area of controversy" where two or more persons are equally entitled to be named administrator and thus reduce the workload of the probate court, was a legitimate state interest, but held that statute failed to advance that objective "in a manner consistent with the command of the Equal Protection Clause."

Reed was applied by the Supreme Court two years later in Frontiero v. Richardson, 1973, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583. The Court there struck down a federal statute which permitted a serviceman to claim his wife as a dependent for purposes of air force benefits without regard to whether she was actually dependent on him, but required that a servicewoman demonstrate her husband's dependency before claiming the benefits. A four vote plurality concluded that "classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny". 411 U.S. at 688, 93 S.Ct. at 1771, 36 L.Ed.2d at 592.

A majority of the Supreme Court has never adopted the position that classification based on sex is inherently suspect, and the lower courts have read Reed and Frontiero as establishing a middle ground: "A classification based upon sex is less that suspect; a validating relationship must be more than minimal. What emerges is an `intermediate approach' between rational basis and compelling interest." Eslinger v. Thomas, 4 Cir. 1973, 476 F.2d 225, 230-31.

Were we dealing with a statute preferring males over females in the selection of estate administrators or one making it easier for males than females to obtain governmental benefits, we would agree that the Reed-Frontiero test would require a finding of equal protection denial. In this case, however, we are faced with an entirely different situation, one in which such an analysis would...