Lukianoff v. Lukianoff
| Decision Date | 09 April 1928 |
| Docket Number | 28900 |
| Citation | 116 So. 890,166 La. 219 |
| Court | Louisiana Supreme Court |
| Parties | LUKIANOFF v. LUKIANOFF |
Appeal from First Judicial District Court, Parish of Caddo; J. H Stephens, Judge.
Suit by Stephanie O. Lukianoff against Gregory Lukianoff for absolute divorce. From judgment rejecting plaintiff's demand plaintiff appeals.
Judgment appealed from annulled and reversed, and case remanded, with directions.
Barksdale Bullock, Warren, Clark & Van Hook, of Shreveport, for appellant.
A. A. Le Rosen, of Shreveport, for curator ad hoc.
This is a suit for absolute divorce, based upon a judgment of separation from bed and board obtained by plaintiff in the district court of Caddo parish December 15, 1925, after personal service of citation upon defendant, and after answer filed by him.
Plaintiff alleges that more than one year has elapsed since the date of the judgment of separation rendered in her favor, and that no reconciliation has been effected between the parties.
The petition for absolute divorce was filed on May 17, 1927, in the separation proceeding or suit in the district court of Caddo parish, and shows upon its face that at that date both plaintiff and defendant were residents of the state of New York. A curator ad hoc was appointed to represent the absent defendant, and service of the petition and citation was duly made upon the curator.
The trial judge rejected plaintiff's demands, as he was of the opinion that the jurisdiction acquired by the district court of Caddo parish of the suit for separation from bed and board had been lost by the removal of the parties from the state, prior to the institution of the present suit for absolute divorce.
Plaintiff has appealed. The evidence in the case entitles plaintiff to an absolute divorce, if the lower court was vested with jurisdiction ratione materiae -- the only issue presented to us for decision.
Plaintiff contends that the trial court was clothed with jurisdiction for the following reasons:
(1) Because the present suit is not a new cause of action, but a continuation of the original suit for separation from bed and board.
(2) Because the lower court retained the jurisdiction acquired by it in the suit for separation from bed and board for the purpose of granting a final divorce when the parties became entitled to same.
As plaintiff and defendant were domiciled in Caddo parish, within the state, at the date of the institution of the suit for separation from bed and board, and as defendant was personally served and answered the suit, there can be no serious question raised as to the jurisdiction of the district court of that parish to enter a decree of separation a mensa et thoro in the proceeding then before it.
The right of the plaintiff to continue her suit for absolute divorce in the separation proceeding, by the appointment of a curator ad hoc to represent the absent defendant, is expressly recognized and conferred upon her by Act 296 of 1910. It is provided in this act:
"That in any action for separation from bed and board or divorce, where the defendant is absent from the state, or in case of reconvention, when the plaintiff is absent from the state; and in actions for divorce based on a judgment of separation from bed and board, when the adverse party is absent from the state, the court having jurisdiction over the cause shall, upon application by any party in interest, appoint a curator ad hoc to represent such absent party, and all proceedings shall be had contradictorily with said curator ad hoc, and any judgment or divorce may be rendered against same curator ad hoc as might be rendered against his principal as if he were present in person in open court."
Act 25 of 1898 also confers upon plaintiff the right to obtain a judgment of absolute divorce in the separation proceeding instituted by her in the district court of Caddo parish. Act 25 of 1898 declares (quoting in part):
"That whenever a judgment of separation from bed and board shall have been rendered and no reconciliation between the spouses shall have taken place the married person in whose favor the judgment * * * shall have been rendered, may, at the expiration of one year from the date that the said judgment shall have become final, apply to and obtain from the court that rendered the judgment of separation from bed and board, a judgment of final divorce from the other...
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