Walker v. Walker

• Decision Date: 30 October 1963
• Docket Number: No. 903,903
• Citation: 157 So.2d 476
• Parties: Mary Jane WALKER, Plaintiff and Appellant, v. Charles C. WALKER, Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 476

157 So.2d 476

Mary Jane WALKER, Plaintiff and Appellant, v. Charles C. WALKER, Defendant and Appellee.

No. 903.

Court of Appeal of Louisiana, Third Circuit.

Oct. 30, 1963.

Rehearing Denied Nov. 26, 1963.

Writ Granted Jan. 20, 1964.

Simon & Trice, by J. Minos Simon, Lafayette, for plaintiff-appellant.

Pugh & Boudreaux, by Nicholls Pugh, Jr., Lafayette, for defendant-appellee.

Before TATE, HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

The plaintiff, Mary Jane Walker, sued Charles C. Walker in Lafayette Parish Louisiana, for separation from bed and board. Defendant answered, setting up the defense that there had already been rendered between the parties, at defendant's domicile in the State of Arkansas, a final judgment of divorce which is entitled to full faith and credit from the courts of Louisiana. After trial on the merits, the lower court upheld the validity of the Arkansas judgment of divorce and dismissed Mrs. Walker's separation suit in Louisiana. The lower court likewise ruled on certain matters pertaining to alimony, child custody, injunction and attorneys' fees. From these rulings the plaintiff, Mary Jane Walker, has taken this appeal.

The primary question involved is whether the Arkansas divorce decree is entitled to full faith and credit in the State of Louisiana. A decision of this issue depends on whether the Arkansas court had jurisdiction. Since Mrs. Walker was given timely notice of the pendency of the Arkansas proceedings, the sole jurisdictional requirement at issue is whether Mr. Walker was domiciled in the State of Arkansas at the time of the proceedings there. See Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; also the general discussion in 17A Am.Jur. 124--141. In the similar case of Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 our Supreme Court has held that the only question which the Louisiana court will consider with respect to the validity of the divorce decree of another state is the jurisdictional requirement of domicile. LSA-C.C. Art. 38 defines 'domicile' as being the place which a person makes his 'habitual residence'. 'Domicile', as used here, is also defined as the place where a person has established his actual residence, combined with the intention of making it his principal establishment or home. See Successions of Rhea, 227 La. 214, 78 So.2d 838; Broussard v. Domingue (3rd Cir. La.App.1962), 146 So.2d 445.

With these legal principles in mind, let us consider the facts of the instant case pertaining to the issue of whether the defendant, Charles C. Walker, was domiciled in the State of Arkansas. The record shows that the Walkers were married in Lafayette Parish, Louisiana in 1947. They lived in various places in South Louisiana and then moved to Shreveport, Louisiana in about 1952. The husband was employed as a traveling salesman for a wholesale grocery company and his territory included parts of east Texas, north Louisiana, south Arkansas and part of Mississippi. Shreveport was located near the center of this territory.

There is considerable conflict in the testimony as to the circumstances under which Mr. and Mrs. Walker separated in Shreveport during the early part of January, 1961, at which time she returned to Lafayette, Louisiana and he moved to an apartment in Texarkana, Arkansas. The husband contends the wife was insistent on moving back to Lafayette, where her parents resided and where she planned to open a beauty shop. It is likewise his contention that she moved to Lafayette against his wishes and without his consent.

On the other hand, it is the contention of the wife that she was content to remain in Shreveport or to go with her husband wherever he desired, but that he deceived her into thinking that if she and the children moved back to Lafayette with all of their household belongings, he would join her there later.

Regardless of whether or not the wife was deceived, the facts show that the couple had serious matrimonial difficulties for several years and that during the first week in January, 1961 she took the children and all of the household belongings and moved from the home which they owned in Shreveport to a house which she rented in Lafayette. At about the same time he moved to an apartment which he rented in Texarkana, Arkansas. The evidence also shows that Texarkana was recommended to Mr. Walker by his employer as a place to live in the center of his changed sales territory; that he actually rented and occupied an apartment there; that he used and paid for the utility services; that he opened a bank account there; that during the week days he traveled throughout his territory but on the week-ends he returned to his apartment in Texarkana. There is no evidence that he had any other home or domestic establishment except the apartment in Arkansas. He was still living there at the time these proceedings were tried, almost a year after he moved.

We think the above evidence amply supports the finding of the trial judge that the defendant was domiciled in Arkansas at the time he obtained his divorce there. This was his actual residence, as well as the place which he intended to be his principal establishment or home. Therefore, under the authorities cited above, the Arkansas court had jurisdiction and its divorce decree is entitled to full faith and credit in Louisiana.

It is unnecessary for us to consider defendant's argument that we should follow the theory of the case of Miller v. Miller, 159 So. 112, in which the Supreme Court of the State of Mississippi departed from the general rule that the one attacking, rather than the one urging, the validity of a judgment of another state, has the burden of proof. In the present matter, regardless of who had the burden of proof, the evidence clearly shows Mr. Walker was domiciled in Arkansas.

The next issue on appeal concerns alimony. A brief review of the sequence of events is necessary to understand the problem involved. Mr. Walker filed his Arkansas divorce action in early June of 1961. Mrs. Walker then filed her Louisiana suit for separation from bed and board, child custody, alimony pendente lite, etc. on June 21, 1961. Although Mrs. Walker's original petition was served on an attorney appointed by the court to represent the defendant, who was alleged to be a resident of Louisiana but absent from the state, Mr. Walker later employed his own attorney and made a general appearance in these proceedings by filing an answer on September 14, 1961. This answer urged his Arkansas divorce, which he had obtained on August 3, 1961, as a bar to Mrs. Walker's suit for separation as well as to her rules for alimony pendente lite, etc. This general appearance by Mr. Walker constituted a waiver of all objections to the court's jurisdiction over Mr. Walker's person. LSA-C.C.P. Art. 7.

After various delays the rule for alimony pendente lite was heard in October of 1961 and the court rendered judgment awarding Mrs. Walker the sum of $200 per month for herself and the two minor children.

Plaintiff's suit for separation was then tried on the merits in December of 1961, following which the court, on September 18, 1962, rendered and signed a judgment recognizing Mr. Walker's Arkansas divorce and dismissing Mrs. Walker's Louisiana action for separation from bed and board. In this same judgment, signed on September 18, 1962, the court awarded Mrs. Walker alimony for support of the two minor children in the sum of $100 per month. No permanent alimony award was made for Mrs. Walker.

On September 20, 1962, the plaintiff filed a timely motion for a new trial as to the judgment rendered on September 18, 1962. On October 17, 1962 Mrs. Walker filed a rule to show cause why the defendant should not be held in contempt for failure to continue to comply with the judgment for alimony pendente lite in the sum of $200 per month. She alleged that after the court rendered its judgment of September 18, 1962, Mr. Walker reduced his alimony payments to $100 per month. On November 26, 1962 Mrs. Walker also filed a petition for executory judgment for the amount of delinquent alimony. In both of these rules she contended that her motion for a new trial had suspended the judgment 'reducing the alimony from $200 to $100.' The rule for contempt and the petition for judgment for delinquent alimony were served on the defendant through his attorneys of record, rather than on defendant personally.

To the rule for contempt and petition for delinquent alimony, defendant's counsel of record filed exceptions to the jurisdiction of the court over defendant's person on the grounds that the court had found in the trial on the merits that defendant is a nonresident of the State of Louisiana on whom personal service is necessary to secure personal judgment. On January 14, 1963, the lower court denied Mr. Walker's motion for a new trial and on the same date sustained defendant's exceptions to the jurisdiction in the contempt motion and petition for delinquent alimony.

The first issue which we must face is whether Mrs. Walker's timely application for a new trial had the effect of suspending the judgment on the merits which terminated alimony pendente lite of $200 per month for the wife and children, and awarded $100 per month for the children alone. Before the adoption of our new Code of Civil Procedure, on January 1, 1961, LSA-R.S. 13: 4214 expressly provided that '(a)n application for a new trial or a rehearing filed timely as required * * * shall suspend the running of the time in which judgments become executory or within which appeals may be taken until the application has been denied.' However, LSA-R.S. 13:4214 was repealed when our new Code of Civil Procedure was adopted. According to Concordance Table 3, found in LSA-C.C.P. Vol. 1 at page 766, the former LSA-R.S. 13:4214 is replaced by LSA-C.C.P. Articles 2087, 2123 and 2252. It is the contention of defendant that since the three...