Land v. Land

• Decision Date: 04 November 1935
• Docket Number: 33452
• Citation: 164 So. 599,183 La. 588
• Court: Louisiana Supreme Court
• Parties: LAND v. LAND

164 So. 599

183 La. 588

LAND v. LAND

No. 33452

Supreme Court of Louisiana

November 4, 1935

Rehearing Denied December 2, 1935

Writs perpetuated and judgment of district court annulled.

Edward M. Heath, of New Orleans, for relator.

Stirling Parkerson, of New Orleans, for respondent.

HIGGINS Justice. ROGERS, ODOM, JJ., O'NIELL, C. J., dissents. LAND, J., recused; BOND, J., sitting by appointment.

OPINION

HIGGINS, Justice.

This is a suit by a husband, whose domicile and residence is in the parish of Jefferson, against his wife, a resident of the state of Georgia, for a divorce under the second paragraph of article 142 of the Revised Civil Code, as amended by Act No 1 of the Second Extra Session of the Legislature of Louisiana of 1934. The petition tracks the statute, and there are annexed to it, as a part thereof, certain documents tending to show the applicability of the provisions of the act and compliance therewith.

The defendant filed a plea that the act was unconstitutional exceptions of no right or cause of action, and a plea to the jurisdiction of the court ratione personae and ratione materiae.

The exceptions and pleas were overruled by the judge a quo and the defendant was allowed fifteen days to file her answer.

She did not file an answer, but, on the fourteenth day filed, simultaneously, an exception of prematurity, on the ground that the two-year period of separation provided for in the statute would have to run from the time it became effective, which exception was not passed upon below, and a rule for alimony pendente lite.

The plaintiff filed exceptions of no right or cause of action to the rule for alimony on the following grounds:

"(A) Because this suit is predicated on article 142, R.C.C., as amended by Act No. 1 of 2nd Extra Session of 1934 which grants only to the plaintiff the remedies and conservatory measures granted by law to married women.

"(B) That the mover in rule is not plaintiff in this suit, and therefore, is not entitled to the remedies and conservatory measures granted by law to married women.

"(C) That, in order to be entitled to the remedies and conservatory measures, such as alimony, even as plaintiff, the wife must show domicile in this state."

The district judge overruled the exceptions and plaintiff then applied to this court for writs of certiorari, prohibition, and mandamus, which were granted, and the matter is now beforeus for consideration.

While respondent in her return to this court questioned the right of relator to the issuance of the writs, in her brief she states: "* * * That the court might just as well pass on the question of defendant's right to alimony now as later." Of course, the writs were issued under our supervisory jurisdiction and Peeples v. Land, 181 La. 925, 160 So. 631, in this connection is pertinent.

The returns of the trial judge and the defendant are identical and raise two issues, as follows:

(1) That the exceptions of no right or cause of action to the rule for alimony pendente lite were clearly without merit; and

(2) In the alternative, that the plaintiff was estopped to raise that question, because of the alleged judicial confession that defendant was entitled to alimony pendente lite, which was tendered.

Article 142 of the Revised Civil Code, as amended by Act No. 1 of the Second Extra Session of the Legislature of 1934, reads as follows:

"Whenever a marriage shall have been contracted in this State or elsewhere by parties either of whom are residents of this State and the matrimonial domicile shall have been established in a foreign country or in another state and if the husband shall have abandoned the wife, in the State of said marriage or elsewhere, or shall behave or have behaved towards his said wife in said foreign country or in said other state, in such manner as will entitle her, under our laws, to demand a separation from bed and board, it shall be lawful for her, on returning to the domicile where said marriage was contracted, or to her domicile in this State, prior to said marriage, to institute a suit against her said husband for the purpose above mentioned in the same manner as if the parties were domiciliated in such place, any law to the contrary notwithstanding.

"Whenever a marriage shall have been contracted under the laws of and in this state, and there shall be issue of said marriage, and the husband or wife shall leave this state and secure a divorce in another state through substituted service in such other state, and contract another marriage in another state, of which latter marriage there is no issue, should the said husband or wife return to this state and remain and live separate and apart for a period of two years from the spouse acquired in said latter marriage, if the other spouse of said first marriage shall have remained single, either the husband or the wife of the latter marriage shall be entitled to immediate divorce upon said facts being established to the satisfaction of the court, provided both of the parties of the said first marriage shall make and execute a sworn affidavit and present same to the court, evidencing their intention to remarry with proof that there is one or more living and dependent minor children, issue of the said first marriage, dependent upon them for support. In such case suit may be filed by either the husband or the wife seeking to secure divorce from such latter marriage at their established place of residence in this state, and such person seeking divorce shall be entitled to secure service on the dependent [defendant] either by personal service or by substituted process through appointment of a curator ad hoc to represent such defendant if absent from the state.

"In such cases an attorney shall be appointed by the Court to represent said absent defendant; the plaintiff shall be entitled to all the remedies and conservatory measures granted by law to married women, and the judgment renderedin such case shall have force and effect in the same manner as if the parties had never left the state or were both residents thereof.

"Section 2. Be it further enacted, etc., That all laws or parts of laws contrary to or in conflict herewith, be and the same are hereby repealed." (Italics ours.)

The state has the right through the legislative department to pass laws regulating and concerning marriage, separation from bed and board, and divorce of those residing within its territorial limits.

In the case of Evans v. Evans, 166 La. 145, at page 150, 116 So. 831, 833, in discussing Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1, we said:

"For Haddock v. Haddock does not deny the fundamental proposition that each of the states has the right to establish for its citizens, and for all persons subject to its jurisdiction, its own policy and rules and regulations regarding marriage and divorce." (Italics ours.)

In Lepenser v. Griffin, 146 La. 584, 83 So. 839, 841, the court quoted from Cooley in his work on Constitutional Limitations (4th Ed.) at page 502, stating the principle of law as follows:

"We conceive the true rule to be that the actual bona fide residence of either husband or wife within a state will give that state authority to determine the status of such party, and to pass upon questions affecting his or her continuance in the marriage relation, irrespective of the locality of any alleged offense; and that any such court in that state as the Legislature may have authorized to take cognizance of the subject may lawfully pass upon such questions and annul the marriage."

In Mathews v. Mathews, 157 La. 930, 103 So. 267, it was held:

"We think it is the uniform and consistent jurisprudence of this state that, where both spouses were nonresidents of Louisiana, and the marriage was not contracted in this state, and the cause of action arose prior to the acquisition of a Louisiana domicile by either, the courts of this state will not entertain suits, instituted by either spouse, for separation from bed and board or for divorce."

See, also, Mann v. Mann, 170 La. 958, 129 So. 543; Evans v. Evans, 166 La. 145, 116 So. 831; Hockaday v. Hockaday, 182 La. 88, 161 So. 164; Peeples v. Land, supra.

Therefore, all of the general laws on the subject of marriage, separation, and divorce apply to residents or citizens of this state, and all persons subject to its jurisdiction, but not to residents and citizens of other states.

Article 142 of the Revised Civil Code, as amended by Act No. 1 of the Second Extra Session of 1934, under the specific provisions of which the instant suit has been brought, is an exception to the general rule of law with reference to separation and divorce. It is a special statute for a particular class of cases where separation and divorce are not otherwise permitted under the general laws of the state.

In Smithers v. Smithers, 145 La. 752, 82 So. 879, 880, this court held:

"There is only one exception to the rule that a Louisiana court has not jurisdiction of a suit for divorce or for separation from bed and board against a nonresident of the state, for a cause that occurred in another state at the time when there was no matrimonial domicile in Louisiana. The exception to that rule is found in article 142 of the Civil Code, upon a proper construction of which depends a decision of the question presented by this appeal. * * *

"Article 142, making an exception to a general rule, should not be applied to a case to which its applicability is very doubtful."

In Lepenser v. Griffin, 146 La. 584, 83 So. 839, syllabus, it was held:

"State may prescribe causes for dissolution as to women who leave husbands and establish domicile in state authorizing constructive service is not an impairment...