Tanner v. Tanner, 42020

• Decision Date: 30 June 1955
• Docket Number: No. 42020,42020
• Citation: 229 La. 399,86 So.2d 80
• Parties: Athen S. TANNER v. Vera Howe TANNER.
• Court: Louisiana Supreme Court

Page 80

86 So.2d 80

229 La. 399

Athen S. TANNER v. Vera Howe TANNER.

No. 42020.

Supreme Court of Louisiana.

June 30, 1955.

On Rehearing Jan. 16, 1956.

Further Rehearing Denied Feb. 20, 1956.

Blanchard & Blanchard, C. A. Blanchard, F. A. Blanchard, Donaldsonville, for plaintiff-appellant.

Miriam Attaya, Gonzales, for defendant-appellee.

PONDER, Justice.

The plaintiff has appealed from a judgment awarding the defendant $200 attorney's fees for services rendered in a divorce suit.

The plaintiff brought suit against the defendant for divorce under the provisions of LSA-R.S. 9:301 on the ground that he and his wife had lived separate and apart for more than two years. The defendant reconvened and asked for judgment on the same ground and for custody of the children, alimony, and attorney's fees. On hearing of the case, the lower court gave judgment granting the plaintiff a divorce and dissolving the community of acquets and gains existing between him and the defendant. The custody of the children was awarded to the defendant with the right of visitation given to the plaintiff, the defendant's right to claim alimony for herself and support for the children was reserved. The plaintiff was ordered to pay the defendant's attorney's fees in the amount of $200. The plaintiff has appealed only from that part of the judgment which awarded the defendant attorney's fees.

The defendant did not answer the appeal and, therefore, the only question presented is the correctness of that part of the judgment awarding the defendant attorney's fees.

The plaintiff contends that the community was dissolved at the time of the filing of the suit by him and that, therefore, the judgment awarding the attorney's fees was erroneous because the wife was not successful in obtaining a judgment on her reconventional demand. In support of his contention the plaintiff cites: Alpha v. Aucoin, La.App., 167 So. 835; Benedict v. Holmes, 104 La. 528, 29 So. 256; Spiller v. Spiller, 170 La. 813, 129 So. 212; Coco, Broussard & Dupuy v. Byrd, 2 La.App. 613 and Collins v. Collins, 194 La. 446, 193 So. 702. On the other hand, the defendant relies on the holdings in the cases of Martin v. Martin, 191 La. 761, 186 So. 94 and Jones v. Jones, 200 La. 911, 9 So.2d 227.

Article 2432 of the LSA-Civil Code provides: 'The judgment which pronounces the separation of property, is retroactive as far back as the day on which the petition for the same was filed.' This article of the Civil Code has been consistently applied in suits for separation from bed and board and divorce, and decisions are numerous to that effect. Some of the more recent decisions holding that this article of the Civil Code is applicable are: Benedict v. Holmes, 104 La. 528, 29 So. 256; Gastauer v. Gastauer, 143 La. 749, 79 So. 326; Alpha v. Aucoin, La.App., 167 So. 835.

Under the provisions of Article 2432 of the LSA-Civil Code, the dissolution of the community reverts back to the time of the filing of the suit by the plaintiff and, therefore, the services of the defendant's attorney were rendered after the dissolution of the community. Such being the case, the attorney's fees is a debt of the wife and not that of the community. August v. Blache, 200 La. 1029, 9 So.2d 402; Gastauer v. Gastauer, supra; Alpha v. Aucoin, supra; and Benedict v. Holmes, supra.

The two cases cited by the defendant, Martin v. Martin, supra, and Jones v. Jones, supra, are not applicable. The attorney's fees were allowed in those cases to the wife who had secured an award for a pension or alimony under the provisions of Article 160 of the LSA-Civil Code. We do not have such a situation in this case as there is no judgment awarding or denying alimony. The wife's rights were merely reserved in the judgment to claim alimony.

For the reasons assigned, the judgment of the lower court is amended so as to disallow the award to the defendant for attorney's fees in the sum of $200 and as thus amended the judgment is affirmed.

MORSE, J., concurs.

HAMITER and SIMON, JJ., dissent.

FOURNET, C. J., absent.

On Rehearing

HAMITER, Justice.

As is stated in the majority opinion on the original hearing of this cause appellant (the plaintiff husband) is complaining only of the district court's award of attorney's fees to appellee (the defendant wife). Mainly, he insists that inasmuch as he obtained the divorce, and the wife was unsuccessful on her reconventional demand, the community was retroactively dissolved as of the time of the institution of his suit; and, consequently, the awarding of the attorney's fees against him as head and master of the community, for legal services rendered the wife subsequent to the filing of his petition, was improper.

Accordingly, the primary question presented by this appeal is: When an action for a separation or divorce instituted by the husband terminates in a decree in his favor does the obligation to pay attorney's fees for services rendered to the wife in defense of the suit and in connection with her unsuccessful reconventional demand constitute a debt of the community (assuming its previous existence) for which a judgment against the husband, as head and master of the community, may be rendered?

A generally recognized and well-established principle in this state is that ordinarily a litigant is not entitled to recover attorney's fees, even when successful in the suit, except where the obligation therefor is imposed by contract or statute. See Winkler & Ascension Bank & Trust Co., 182 La. 69, 161 So. 23; Efner v. Ketteringham, 217 La. 719, 47 So.2d 331; Brantley v. Tugwell, 223 La. 763, 66 So.2d 800, and Griffin v. Bank of Abbeville & Trust Co., 228 La. 857, 84 So.2d 437. The instant case involves no contract on the part of the husband to pay attorney's fees, and we know of no legislative enactment providing for an award of them in a suit for separation from bed and board or divorce.

Of course, attorney's fees have been allowed in many actions of that nature (some of these will be hereafter discussed). But a review of the cases discloses that the decreed liability of the community (or the husband as its head and master) for the attorney's fees incurred by the wife in a separation or divorce suit is a creature of the jurisprudence.

When the matter was first presented to this court in Tucker v. Carlin, 14 La.Ann. 734, liability of the community for such fees was not imposed. In that case the husband and wife had brought divorce actions against each other, and both suits were dismissed. Thereafter, the wife's attorney sued the husband, as head and master of the community, to recover for his services in representing the wife in the two proceedings. The court refused to allow the fees, commenting that the obligation so incurred was a debt of the wife separately. It specifically ruled that the husband could not be held liable either on the basis that the wife had expressly contracted the indebtedness (she had no authority to bind the community) or on the theory of quasi contract.

Subsequently, however, the court in Benedict v. Holmes, 104 La. 528, 29 So. 256, 258, decided that where the wife had successfully prosecuted her suit for a separation from bed and board and for the liquidation of the community the necessary attorney's fees incurred by her were a legal charge against the community. The court's decision was based primarily on the following reasons: '* * * The wife has a recognized legal right to institute against her husband a suit for divorce or separation of property upon grounds that are specified in the law; but, if she cannot charge her attorney's fees and cost against the assets of the community in the event she obtains a decree of separation and dissolution, the right is practically a barren one, if she possesses no separate property. If the husband's course of conduct be such as to justify the dissolution of the marriage and the dissolution of the community on the petition of the wife, it would seem that in such case the cost and attorney's fees incident thereto ought to go against the community assets in the course of its liquidation, or against the husband personally if he takes the same to himself. * * *'

Thus, a conflict existed between the principles enunciated in the Tucker case and those of the Benedict matter. And this conflict was recognized and resolved in Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 358, 42 A.L.R. 310, the court there electing to follow the theory of the Benedict case, namely, that the wife's right to employ counsel in her suit for a separation or divorce was a barren one, and she was practically without remedy, if her attorney's fees could not be charged against the community. The court said: 'The law lays down certain specific causes for which a separation from bed and board or a divorce may be granted by the court, and the law also recognizes the right of a wife to institute and prosecute a suit for that purpose against her husband.

'This right carries with it the right to employ counsel to institute and prosecute such a suit. No good and valid reason is suggested or can be suggested why the attorney thus employed may not recover for his services against the husband as head and master of the community.

'If the attorneys in such a case are not entitled to recover against the husband or the community, then the law giving the right to the wife to sue for a separation or divorce and to employ counsel for that purpose * * * is a dead letter, or is a barren one, as was said in the Benedict case. The wife would find herself vested with a legal right but without practically any remedy or the authority to vindicate such right.

* * *

* * *

'After all is said, therefore, we are of the opinion that the fact that a reconciliation took place between the parties, thereby putting an end to the suit for separation and leaving the community intact, did not have the effect of relieving the defendant from liability for the fees of...