Messersmith v. Messersmith

• Decision Date: 20 February 1956
• Docket Number: No. 41947,41947
• Citation: 86 So.2d 169,229 La. 495
• Parties: William W. MESSERSMITH, Jr. v. Mrs. Hilda Louise St. Martin MESSERSMITH.
• Court: Louisiana Supreme Court

Page 169

86 So.2d 169

229 La. 495

William W. MESSERSMITH, Jr. v. Mrs. Hilda Louise St. Martin MESSERSMITH.

No. 41947.

Supreme Court of Louisiana.

Feb. 20, 1956.

James G. Schillin, New Orleans, for defendant and appellant.

Harry P. Gamble, Jr., New Orleans, Gamble & Gamble, New Orleans, of counsel, for plaintiff and appellee.

SIMON, Justice.

On June 5, 1947, Mrs. Hilda Louise St. Martin Messersmith filed suit for a separation from bed and board against her husband, William W. Messersmith, Jr., the temporary care, custody and control of their minor child and an award of alimony pendente lite for the maintenance and support of herself and child. As an incident to said suit, the district judge granted the provisional care, custody and control of said child to the plaintiff-wife and issued a restraining order prohibiting the husband from disposing of or alienating community assets. Rules nisi previously issued were made absolute and after due hearing the defendant-husband was condemned to pay alimony pendente lite to plaintiff for the maintenance and support of herself and minor child in the sum of $225 per month, beginning July 1, 1947. A preliminary injunction was issued against the defendant and Woodward-Wight & Co., Ltd., restraining and enjoining either or both from disposing of the shares of stock in Woodward-Wight & Co., Ltd., bearing the name of defendant-husband, and he was further enjoined from disposing of or encumbering other community assets.

The defendant-husband entered, in effect, a general denial, and in assuming the position of plaintiff-in-reconvention prayed for a judgment of separation from bed and board in his favor for causes alleged. After a trial on the merits, judgment was rendered on March 8, 1949 and signed on March 25, 1949, dismissing plaintiff-wife's demand, and awarding a separation from bed and board in favor of the husband; custody of the minor child was awarded to the husband; and no provision was made for alimony in favor of the wife.

On March 11, 1949, during the interim between the date the judgment was rendered and the date it was signed, the wife sought by motion to have the alimony pendente lite awarded to her by judgment of July 1, 1947, increased. The lower court denied her demand, and on appeal before us the judgment denying the relief sought by her was affirmed. ¹

On April 8, 1949, the husband filed a separate suit for divorce on the statutory ground of two years' separation. He alleged that the original separation of the spouses was due to the fault of the defendant-wife and in substantiation thereof incorporated the entire record of the suit for separation from bed and board filed by his wife. He also sought the permanent care, custody and control of his minor son.

For answer the defendant-wife entered, in effect, a general denial and alleged that the fault of their separation rested solely with plaintiff. Assuming the position of plaintiff-in-reconvention she sought a judgment of divorce in her favor, custody of their child, alimony for herself and child, and an injunction prohibiting the disposal or alienation of any community assets.

On October 20, 1949, the district judge rendered judgment granting a divorce in favor of the husband. The defendant-wife's demands were dismissed except she was awarded the custody of the child with reservation of the right to claim alimony for his support from the father. The judgment further ordered the taking of an estimative and descriptive inventory of all community assets and a partition thereof between the parties. Pending said partition the husband was enjoined from disposing of or alienating community assets in his possession or under his control until the final disposition of the respective rights of the parties. From this judgment no appeal was taken by either party.

Subsequent to the final decree of divorce the parties entered into a written stipulation agreeing and consenting to an amicable liquidation and partition of a considerable part of the property forming the community of acquets and gains existing between them in lieu of a formal notarial act of partition, the contested issues being left for determination of and judgment by the district court, predicated upon a stipulation of facts and admissions. Giving full force and effect to the stipulations and agreements entered into by the parties, the district court rendered judgment partitioning the community effects and decreeing the relief to which, in his opinion, each party was entitled. The defendant-wife has appealed, assigning specific errors to the portions of said judgment prejudicial to her; and the husband has answered the appeal.

Counsel for both parties, in briefs and oral arguments, having limited their appeals to the errors assigned as prejudicial to their respective interests, we shall consider these alleged errors in the order reflected by the judgment.

Under Article II of the judgment of the district court it was decreed that the 225 shares of stock of Woodward-Wight & Co., Ltd., and the 13 shares of stock of Republic Steel Corporation to be the property of the community and that said stock should be equally divided between the parties. Neither party contested the partition in kind of the Republic Steel Corporation stock. However, the husband, who is an employee of Woodward-Wight & Co., Ltd., contends that the Woodward-Wight stock should not be divided in kind, but that he should be allowed to retain all of said stock and pay to his wife one-half of its book value and asserts, in support thereof, a provision in the charter of the Woodward-Wight & Co., Ltd., which provides that before any stockholder can sell stock he must first offer the same to his co-shareholders or to the officers of the corporation. Obviously, the purpose of this restrictive provision was to retain in the officers and employees the ownership of the stock of said company.

Under the expressed provisions of our LSA-Civil Code, 'Every marriage contracted in this State, superinduces of right partnership or community of acquets or gains, * * *' Article 2399, and 'This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. * * *' Article 2402.

There is nothing more fundamental in our law than the rule of property which declares that this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired. Dixon v. Dixon's Ex'rs, 4 La. 188, 23 Am.Dec. 478; Theall v. Theall, 7 La. 226, 26 Am.Dec. 501; Succession of Marsal, 118 La. 212, 42 So. 778; Succession of May, 120 La. 692, 45 So. 551; Beck v. Natalie Oil Co. 143 La. 153, 154, 78 So. 430; Ramsey v. Beck, 151 La. 190, 91 So. 674; Phillips v. Phillips, 160 La. 813, 107 So. 584; Pfaff v. Bender, D.C., 38 F.2d 642; Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252; Succession of Wiener, 203 La. 649, 14 So.2d 475.

We have repeatedly adhered to the doctrine that the half ownership of the wife in the community effects, its status not resting upon the mere gratuity of the husband, is entitled to a dignity equal to that of the husband's; and upon its dissolution and liquidation the wife is entitled to secure the delivery of this one-half right and ownership into her own exclusive management and control; and the courts have no discretion or power whatever to award her less.

Our codal laws also declare that after the marriage the spouses can do nothing to alter the effect between themselves of our community laws. LSA-C.C. 2329.

Plaintiff-appellee, however, seeks to alter our community law provisions or the status of the Woodward-Wight stock in question, asserting that the restrictive provisions in the charter prevent the recognition of the wife's one-half right and ownership thereof and her right to be delivered in kind the interest falling to her. His position is wholly untenable. The restriction in the charter cannot affect the status of the stock purchased during the existence of the community or the rights the wife may assert thereunder. Such a restriction cannot negative the wife's present interest as a co-owner, and as a co-owner in community she is clearly entitled to be recognized as such and obtain the exclusive management and control of her vested interest. Succession of Helis, 226 La. 133, 75 So.2d 221; Land v. Acadian Production Corporation of Louisiana, D.C., 57 F.Supp. 338; Henderson's Estate v. Commissioner of Internal Revenue, 5 Cir., 155 F.2d 310, 164 A.L.R. 1030.

Under Article IV of the lower court's judgment, a certain Woodward-Wight & Co., Ltd., group annuity certificate was declared to be valueless, and for that reason was held to form no part of the assets of the community existing between the spouses.

The descriptive and estimative inventory of the community shows that on December 1, 1942, during the marriage of the litigants, the Equitable Life Assurance Society is sued to plaintiff an individual employee certificate, being identified with a group annuity plan of Woodward-Wight & Co., Ltd. It is conceded that payment of the premiums of the retirement plan in the sum of $543.50 were made from community funds. Plaintiff admits that he should account for the cash surrender value of certain other policies listed on the inventory, but contends that the group annuity certificate had no cash or loan value on the date of dissolution of the community and would never have a cash or...