Rabun v. Rabun

• Decision Date: 06 May 1957
• Docket Number: No. 43116,43116
• Citation: 95 So.2d 635,232 La. 1004
• Parties: Mrs. Viola Womack RABUN v. John L. RABUN.
• Court: Louisiana Supreme Court

Page 635

95 So.2d 635

232 La. 1004

Mrs. Viola Womack RABUN v. John L. RABUN.

No. 43116.

Supreme Court of Louisiana.

May 6, 1957.

Hynes, Mathews & Lane, Baton Rouge, for plaintiff-appellant.

George S. Womack, Baton Rouge, for defendant-appellant.

HAMITER, Justice.

Presented here is the single question of whether the divorced wife is entitled to alimony for her support under Revised Civil Code Article 160.

On February 4, 1955 Mrs. Viola Womack Rabun obtained a judgment of separation from her husband, John L. Rabun, on the ground of abandonment. In the proceeding she had sought from him alimony of $300 per month for herself and for their minor son, then approximately thirteen years of age, it being (according to the allegations of her petition) 'a sum proportionate to his revenue.' The husband, in answering, had averred his willingness to pay the alimony demanded; and an award therefor was included in the separation judgment.

More than a year and sixty days elapsed without the wife's taking any further action, and on April 5, 1956 the husband instituted proceedings for a final divorce which was granted. In the initial divorce judgment alimony for the support of the wife and the child was fixed at $300 per month.

The husband filed an application for a rehearing. Therein, he resisted payment of alimony for his divorced wife but did not dispute his obligation of support for the child. A rehearing was granted. Thereafter, the award was reduced to $250 per month, and the alimony was specifically allocated at $150 for the child and $100 for Mrs. Rabun.

Both parties appealed from the judgment rendered on the rehearing. The husband complains only of the allocation for the wife. Directing attention to the record, the insists that presently she has sufficient means for her maintenance and is therefore without right to any alimony. The wife, on her appeal, seeks to have the award increased to $300 per month, as in the initial judgment, allocated at $150 for herself and $150 for the support of the minor child.

The question of what is to be considered in awarding alimony under Revised Civil Code Article 160 (after a divorce has been granted) is no longer open to serious debate. In numerous cases it has been resolved, particularly in the recent ones of Smith v. Smith , 217 La. 646, 47 So.2d 32, Brown v. Harris, 225 La. 320, 72 So.2d 746 and Stabler v. Stabler, 226 La. 70, 75 So.2d 12.

In the Brown case (225 La. 320, 72 So.2d 747) we summarized the jurisprudence on the subject as follows: 'In defending her judgment for alimony, the wife relies on Article 160 of the Civil Code, which allows a divorced wife alimony when she 'has not sufficient means for her maintenance'. The alimony provided for in Article 160 is, under the jurisprudence of this state, in the nature of a pension accorded by law to the wife. This alimony or pension is nothing more than a pure gratuity which the court may allow and fix in its discretion at an amount not to exceed one-third of the husband's income, and is revocable when it becomes unnecessary. (Numerous cases are cited here.)

In Fortier v. Gelpi, supra (195 La. 449, 197 So. (138) 140), this court said:

"* * * The test by which the court must be guided in such cases in fixing the amount of the alimony or pension is not what it takes to support the divorced wife in the manner in which she has been accustomed to live, but what will provide her with 'sufficient means for her maintenance.' In arriving at this amount, necessarily the husband's ability to pay must be taken into consideration. * * *' (Numerous cases are cited here.)

'In Smith v. Smith, supra, this court had occasion to consider the meaning of the phrase 'sufficient means for her maintenance' in Article 160, and concluded that 'maintenance' as this word is used in the article includes primarily food, shelter, and clothing. The amount necessary for maintenance is to be determined by the facts and circumstances of each particular case, within the sound...