Pisciotto v. Crucia
| Decision Date | 15 February 1954 |
| Docket Number | No. 41053,41053 |
| Citation | 71 So.2d 226,224 La. 862 |
| Court | Louisiana Supreme Court |
| Parties | PISCIOTTO v. CRUCIA. |
Geo. E. Weigel, Geo. W. Miller, Jr., New Orleans, for defendant in rule and appellant.
Baldwin, Haspel & Molony, Emile A. Wagner, Jr., New Orleans, for plaintiff in rule and appellee.
Mrs. Bella Crucia Pisciotto, against whom a judgment was rendered on November 19, 1943, granting her husband a divorce, in which judgment she was awarded the custody of the two children of the marriage and alimony of $30 per week for her support and that of the children, on August 14, 1952, ruled her former husband to show cause why she should not obtain an executory judgment for $4,810, representing unpaid alimony from July 1, 1949, to date of proceeding, together with such further sum as may be due as alimony following adjudication of the cause. The defendant in rule, Michael Pisciotto, Claiming that prior to cessation of alimony payments in July, 1949, neither the children nor his former wife were in need of his financial assistance--the daughter having married in 1945, the son having been self-supporting for some time with the assistance of Pisciotto, who had established him in business about three years previously, and his former wife having been gainfully employed and self-supporting for many years--prayed that the rule be dismissed and that any future alimony be discontinued. Following trial of the case, the Court rendered judgment in favor of Mrs. Pisciotto in amount of $4,810 (162 weeks, minus a credit of $50), but terminated the alimony.
Defendant in rule prosecutes this appeal, contending that equity requires us to rule that Mrs. Pisciotto has waived her right to claim alimony for the three-year period under review because of the fact that no complaint was ever made with respect to his failure to make the weekly alimony payments, since action on her part would have caused him to seek a reduction of the alimony decree whereas her inertia led him to trust in her apparent acquiescence in his discontinuance of payments; alternatively, counsel contends that the sum of $4,810 should be reduced because the award of $30 per week was for the joint support of his former wife and the children, but that his obligation toward the daughter was terminated by her marriage in 1945, and toward the son ended when the latter, upon attaining the age of 18 years (on June 22, 1949) became self-supporting. Lastly, by plea of prescription filed in this Court, he claims that the award should not exceed 156 weeks due to the provisions of Article 3538 of the LSA-Civil Code, directing: 'The following actions are prescribed by three years: That for * * * alimony * * *.'
The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law, Louisiana Code of Practice, Article 548; Snow v. Snow, 188 La. 660, 177 So. 793; Williams v. Williams, 211 La. 939, 31 So.2d 170; Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89; Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902; that the right to receive such alimony in a lump sum is not waived by plaintiff's failure to make periodic demands on the defendant, Gehrkin v. Gehrkin, supra; and that liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment. Article 232, LSA-Civil Code; Snow v. Snow, supra, 188 La. at page 670, 177 So. 793; Gehrkin v. Gehrkin, supra; Wainwright v. Wainwright, supar. Clearly therefore, Pisciotto's main defense, that no alimony was due, as well as his alternative defense, that the amount of the award should be reduced to exclude the portion intended for the support of the children, have no merit.
On the other hand, his...
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Cortes v. Fleming
...of the plaintiff to the alimony past due is a property right which is not defeated by the death of defendant. See Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950); Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89 (1950); Vinet v. ......
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Hogan v. Hogan
...pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment. Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Sampognaro v. Sampognaro, 222 La. 597, 63 So.2d 11 (La.1953), Snow v. Snow, 188 La. 660, 177 So. 793 Although it has n......
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Whitt v. Vauthier
...the judgment is altered or amended by subsequent judgment or is terminated by operation of law. LSA-C.C.P. art. 3945; Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Elchinger v. Elchinger, 181 So.2d 297 (La.App. 4 Cir. 1965). Courts have also disallowed attempts at reduction of past......
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Thompson v. Courville
...the judgment is altered or amended by subsequent judgment or is terminated by operation of law. LSA-C.C.P. art. 3945; Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954); Elchinger v. Elchinger, 181 So.2d 297 (La.App. 4 Cir. Also, see Odum v. Odum, 273 So.2d 576 (La.App. 1 Cir. 1973), whe......