McAlpine v. McAlpine

• Citation: 679 So.2d 85
• Parties: 94-1594 La
• Decision Date: 05 September 1996
• Court: Supreme Court of Louisiana

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679 So.2d 85 94-1594 La. 9/5/96 Michael L. McALPINE
v.
Jonnie Fox McALPINE. No. 94-C-1594. Supreme Court of Louisiana. Sept. 5, 1996.

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Mitchell J. Hoffman, Suzette M. Smith, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, for applicant.

Phillip A. Wittmann. Rachel W. Wisdom, Kelly M. Legier, Stone, Pigman, Walther, Wittmann & Hutchinson, for respondent.

ON REHEARING

[94-1594 La. 1] VICTORY, Justice. ^*

We granted rehearing in this case to reconsider the correctness of our original opinion in which we held that antenuptial agreements waiving permanent alimony are null and void as against public policy. After further review, we reverse our original opinion and hold that such antenuptial agreements are enforceable, but are subject to the same grounds for rescission as other contracts. Further, we agree with the trial court's determination in this case that Mrs. McAlpine entered into the antenuptial agreement freely and voluntarily and not under undue duress. Lastly, consistent with our original opinion, we agree with the trial court's holding that the Mercedes Benz was not a gift to Mrs. McAlpine.

FACTS AND PROCEDURAL HISTORY

About a week prior to their marriage in 1989, Michael McAlpine and Jonnie Fox signed an antenuptial agreement which provided for a separate property regime and for a waiver of alimony pendente lite and permanent alimony. The agreement [94-1594 La. 2] provided, inter alia, that Jonnie Fox would receive $25,000 at divorce if the parties were married less than six years and $50,000 if they were married six years or more, regardless of fault or need on the part of Jonnie Fox. The parties were divorced on May 18, 1992. On October 5, 1992, Jonnie Fox McAlpine filed a rule to show cause why she (1) should not be awarded permanent alimony pursuant to article 112 of the Louisiana Civil Code, and (2) should not have a Mercedes Benz automobile returned to her, claiming it to be a gift to her from Mr. McAlpine.

The trial court held the antenuptial agreement to be enforceable, held that the Mercedes Benz was not a gift, and dismissed Mrs. McAlpine's rule. The Fourth Circuit Court of Appeal reversed the trial court's ruling in part, holding the antenuptial agreement void as against public policy, but affirmed the trial court with regard to the

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automobile, and remanded the case for further proceedings. McAlpine v. McAlpine, 93-2467 (La.App. 4th Cir. 5/17/94), 637 So.2d 1163. Mr. McAlpine's writ of certiorari was granted, 94-1594 (La.9/30/94), 642 So.2d 860, and on original hearing, with Justice Kimball dissenting, this Court affirmed, concluding that LSA-C.C. art. 112 was enacted to protect the public interest by preventing needy former spouses from having to seek public assistance and that any act in derogation of article 112 is void under LSA-C.C. art. 7. 94-1594 (La.2/9/95). LSA-C.C. art. 7 provides that "[p]ersons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity." LSA-C.C. art. 7.

We now conclude that permanent alimony was not enacted to protect the public interest, but for the benefit of individuals. Further, we conclude that if [94-1594 La. 3] protection of the public interest was ever a proper consideration for permanent alimony, that day has long since passed.

DISCUSSION

Article 6 of the Code Napoleon, the original source of LSA-C.C. art. 7, provides "one may not by private conventions derogate from the force of laws which concern public order and good morals." ¹ Planiol explains that this test gives a necessary sanction to a great number of legal provisions which do not specifically define their degree of authority. The law very often sets forth a rule without saying whether or not it permits derogations from its provisions. 1 Planiol, Civil Law Treatise, No. 290 (La. State Law Institute Translation 1959). Planiol's fourth category of private laws affecting public order is the protection of contracting parties. ² He explains:

(4) Protection of the Contracting Parties. A new conception of public order here presents itself. The modern law-maker, considering that the two parties to a certain juridical act are not equally able to defend their interests, prohibits them from departing from certain rules which he has laid down for their protection. It is for this reason that almost all provisions relating to contracts of labor are of public order because the law-maker desires to protect the laborer or the employee against the master. And likewise in contracts for transportation by land all clauses providing for irresponsibility are prohibited (Art. 103, Commercial Code, amended by the law of March 17, 1905). This is done because the law-maker thinks that the traveler or shipper is constrained to submit to the will of the carrier. And again, in contracts of insurance, the law of July 13, 1930 was made imperative, because the insured could not discuss upon a plane of equality with the insurer.

Id., No. 292, p. 201.

[94-1594 La. 4] Nowhere in Planiol do we find a reference to permanent alimony as enacted for the public interest or order. Rather, Planiol states:

Divorce having destroyed the marriage, no effects of it should continue. Upon what idea is founded persistence of the obligation of support between two persons who have nothing in common? Its basis is found in a principle already mentioned more than once. Whatever act of man causes damage to another obliges him by whose fault it happened to repair it, says Art. 1382. As long as the marriage lasted it gave each of the spouses an acquired position upon which each could count. The community of life permitted the spouse without means to share the welfare of the other. Suddenly through no fault of the spouse in question, he or she find himself or herself devoid of resources and plunged into poverty. It is manifestly in such a case as this that the guilty party should be made to bear the consequences of his wrongful acts.

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It is thus seen that the responsibility for alimony is based upon a concept entirely foreign to Art. 212. ³ It is no longer a duty due by a spouse to a spouse because there are no longer any spouses. The duty is to make pecuniary amends for the consequences of an illicit act. This obligation subsisting after divorce partakes, in the highest degree, of the nature of an indemnity. It is intended to restore to the spouse without means something of the resources of which he or she is thenceforth deprived through the other's fault.

This indemnity nevertheless merely counterbalances the privation of the right of support which was vested in the spouse. It becomes transformed into alimony. This is why alimony follows the general rules applicable to alimentary pensions.

Id., No. 1259, pp. 696-697 (cites omitted throughout).

Prior to 1855, a wife, after obtaining divorce, was not entitled to alimony in Louisiana. See Player v. Player, 162 La. 229, 110 So. 332 (1926). ⁴ In 1855, article 160 was adopted, granting alimony only to "the wife who had obtained the divorce out of the property of her husband, not to exceed one-third of her husband's [94-1594 La. 5] income." 110 So. at 332. Thus, the husband would have been proven to be "at fault" under then article 138 of the Civil Code because our law then allowed divorce only based on fault and did not allow a divorce for merely living separate and apart prior to 1916. When no-fault divorce was first recognized by Act 269 of 1916, allowing either party to obtain a divorce, there was no provision in LSA-C.C. art. 160 allowing alimony to a not-at-fault wife where the husband obtained the divorce based on seven years of living separate and apart. Thus, in 1928, article 160 was amended to allow alimony to the wife who proves she has not been at fault, where the husband obtained the "no-fault" divorce based on seven years of living separate and apart. This eliminated the required "fault" of the husband in granting alimony to the wife. In 1934, article 160 was amended to substitute the phrase "seven years or more" to "for a certain period of time" in light of the fact that the Legislature had...