Smith v. Smith
| Citation | 47 So.2d 32,217 La. 646 |
| Decision Date | 29 May 1950 |
| Docket Number | No. 39399,39399 |
| Parties | SMITH v. SMITH. |
| Court | Supreme Court of Louisiana |
Booth, Lockard & Jack, Shreveport, for defendant-appellant.
Smith, Hunter, Risinger & Shuey, Shreveport, for plaintiff-appellee.
The plaintiff in this case who is now the divorced wife of the defendant, filed suit for a judicial separation from bed and board against him on September 12, 1947. Her suit was uncontested and resulted in a judgment being rendered on October 3, 1947 in her favor. The judgment decreed a separation from bed and board, partitioned the community of acquets and gains then existing between them, awarded custody of the minor child to the wife and allowed alimony pendente lite to the wife in the sum of $125.00 per month for her support and maintenance and also in the sum of $75.00 per month for the support and maintenance of the minor child.
On October 15, 1948, plaintiff filed another petition in the same suit asking for a final judgment of divorce, permanent custody of the child and for alimony in the sum of $200.00 per month for herself and $125.00 per month for her child.
The defendant filed his answer in which he did not contest the divorce, nor did he contest the alimony demanded for the support of the minor, although he claimed that $75.00 per month would be sufficient, but he did contest vigorously the amount claimed by the wife for her support, alleging that she had sufficient means for her maintenance and was therefore not entitled to alimony under Article 160 of the Revised Civil Code.
Interrogatories were addressed to the plaintiff which she answered and which to all intents and purposes showed that she had property, all of it being the share acquired by her in the partition of the community and having an approximate valuation of $20,000.
The District Judge rendered judgment in which he granted the final divorce, awarded permanent custody of the child to the wife and granted her alimony in the sum of $75.00 for the child and $125.00 for herself. From that part of the judgment allowing alimony to the wife, defendant prosecutes this appeal.
It is the contention of the defendant that the wife, under Article 160 of the Code, must show that she is in necessitous circumstances before she can become entitled to any alimony at all. He contends that only if the trial judge is satisfied that she is in such circumstances should he look to the income of the husband in order to determine whether she should be allowed alimony to be paid out of such income. Further he contends that there is a material difference between the word 'income' as used in Article 148 of the Civil Code and word 'means' as used in Article 160.
It is shown that the $20,000 assets of the wife consist of seven United States Government War Bonds, a 1948 Pontiac automobile and the balance in notes of her husband bearing interest at 2% per annum. The income from this capital amounts to approximately $420.00 per year or $35.00 per month, which the plaintiff contends places her in the position of not having sufficient means for her maintenance within the meaning of Article 160 of the Civil Code.
The trial judge in his reasons for judgment stated that although his views were to the contrary, he was bound by the decision of this Court in the case of Russo v. Russo, 208 La. 17, 22 So.2d 671, wherein the Court seems to have used the words 'income' in Article 148 of the Civil Code and 'means' in Article 160, indiscriminately, stating: 'It is obvious, therefore, that the wife's right to pendente lite and permanent alimony is predicated on her not having an income sufficient for her maintenance.'
Article 148 reads as follows: 'If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.'
The pertinent part of Article 160 reads as follows:
'If the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income; provided, * * *.
'This alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage.'
There is a marked distinction between the objects and the purposes of the two articles as pointed out in the case of Player v. Player, 162 La. 229, 110 So. 332, and it is in looking to the object of each that we come to appreciate the distinction between the words 'income' and 'means' as used in the respective articles.
Article 148 has for its purpose the enforcement of the husband's obligation of support of his wife as it exists under Article 120 of the Civil Code, which continues during the pendency of a suit for separation from bed and board or for divorce and does not terminate until the marriage is dissolved either by death or by divorce. While the suit is going on the obligation still exists and, whether the wife is the one who is suing or is being sued, if she has not a sufficient income for her maintenance, the judge shall allow her a sum for her support, the amount to be gauged according to what her needs are and what are the means of her husband. It is to be noted here that both her needs and the means of the husband are to be taken into consideration in determining the sum to be allowed.
On the other hand, Article 160 merely makes some provision for the maintenance of the wife who has obtained the divorce, after the marriage has been terminated and the obligation of support by the husband under Article 120 of the Code no longer exists. But it is only in the event that she has not sufficient means for her maintenance that the Court may, in its discretion, allow her out of the property and earnings of the husband, a sum not to exceed one-third of his income, and this alimony is revocable in case it becomes unnecessary, and in case the wife should contract a second marriage.
The alimony contemplated by this Article has frequently...
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