Whitt v. Vauthier

• Decision Date: 08 July 1975
• Docket Number: No. 6845,6845
• Citation: 316 So.2d 202
• Parties: Alton D. WHITT v. Estelle Mae VAUTHIER, his wife.
• Court: Court of Appeal of Louisiana — District of US

Page 202

316 So.2d 202

85 A.L.R.3d 930

Alton D. WHITT v. Estelle Mae VAUTHIER, his wife.

No. 6845.

Court of Appeal of Louisiana, Fourth Circuit.

July 8, 1975.

Rehearing Denied Aug. 6, 1975.

Writ Refused Oct. 17, 1975.

Reed, Reed & D'Antonio, Floyd J. Reed, Metairie, for plaintiff-appellant.

Morphy, Holbrook & Faulkner, Steven K. Faulkner, Jr., New Orleans, for defendant-appellee.

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Stephen J. Caire, Metairie, for State Attorney General's Office.

Before REDMANN, GULOTTA, STOULIG, SCHOTT and MORIAL, JJ.

SCHOTT, Judge.

This case is a sequel of Whitt v. Vauthier, 295 So.2d 235 (La.App.4th Cir. 1974), writ refused La., 299 So.2d 793. There the wife successfully appealed from a judgment finding her at fault and thus not entitled to alimony under LSA-C.C. Art. 160. In reversing, this Court rendered a judgment in favor of the divorced wife for alimony in the amount of $175 per month commencing November 13, 1972, the date of the divorce judgment. Our original opinion was handed down on February 7, 1974, and rehearing was denied on June 18, 1974. Following the refusal of the writ by the Supreme Court on September 13, 1974, the husband filed a motion to terminate alimony on the grounds that, while the case was pending on appeal the wife had obtained gainful employment which would have precluded her recovery of alimony, and that C.C. Art. 160 is unconstitutional because only a divorced husband is obliged to pay alimony under the article, thereby arbitrarily discriminating against male spouses, and thus depriving the husband of due process and equal protection of the law.

A counter motion was filed by the divorced wife seeking to make past due alimony executory in the amount of $4,025 based upon $175 per month from November 13, 1972, through September 13, 1974.

The trial judge rejected the husband's contention that C.C. Art. 160 is unconstitutional. Based upon evidence which showed that the divorced wife had become employed as a real estate salesman in March, 1973, and derived some income from this employment since that date, the trial judge retroactively reduced her alimony beginning January 13, 1974, to the sum of $110 per month. He made alimony executory in the amount of $175 per month from November 13, 1972, through December 13, 1973, thereby arriving at a total sum of $3,550. From this judgment the husband has appealed, urging the unconstitutionality of the article and the wife has answered the appeal, seeking an increase in the amount of executory alimony to the sum of $4,135. ¹

With respect to the divorced husband's attack on the constitutionality of the statute, we have the benefit of a recent decision in Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), certiorari denied by the United States Supreme Court, 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87. The reliance of the husband on Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) and Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1972), is the same as that placed on these cases by the appellee in the Murphy case. We agree with the rationale of the Georgia Supreme Court in analogizing the issue here to that disposed of by the Supreme Court of the United States in Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), in which a Florida statute giving widows a $500 exemption from property taxation was held to be constitutional even though the same benefit was not conferred on widowers. Likewise, we find the instant case distinguishable from Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514, 73--1892 on the docket of the Supreme Court of the United States which struck down 42 U.S.C. § 402(g) of the Social Security Act as unconstitutional. Aside from the fact that the Supreme Court's denial of a writ in the Murphy case came after their opinion in the Weinberger case, indicating that the high Court recognizes a distinction, we find that the special provisions afforded to divorced wives by C.C. Art. 160 can be justified or rationalized as were the special provisions for the homestead exemption in Florida in Kahn v. Shevin, supra, although these considerations were not applicable to Weinberger as they were not to Frontiero. We therefore conclude that C.C. Art. 160 is not inconsistent with the Constitution of the United States as most recently interpreted by the Supreme Court of the United States.

Although the issue was not specifically raised by the husband we have also considered whether C.C. Art. 160 is consistent with Art. 1 § 3 of the Louisiana Constitution of 1974, which provides as follows:

'No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.'

The pertinent part of Art. 160 provides as follows:

'When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when: . . .'

We note at the outset that the instant case raises the constitutional validity of this statute from an oblique point of view. We have here a needy wife who therefore qualifies for alimony under the article, a husband who has the 'property and earnings' out of which alimony can be paid, and he complains that the statute is unconstitutional because it places an obligation upon male spouses but no express like obligation upon female spouses. It seems that the question would be more effectively and reasonably directed if this were a case where a husband had shown that he had not sufficient means for his support and was seeking alimony from the property and earnings of a wife. In the passage of Art. 160 the legislature recognizes an obligation to remedy need in the historically typical case of the wife who has not sufficient means for her support, and its only short-coming may be in its failure to recognize a similar obligation to the need of a husband. Thus, we may have a discrimination by omission, but this discrimination would not seem to mandate a declaration of unconstitutionality as to the remedy afforded to the needy wife, even if such were arbitrary, capricious or unreasonable. However, we have resolved that the divorced husband's attack on the constitutionality of the article is without merit for another reason.

His argument is based on the theory that the existence of Art. 160 causes discrimination against needy husbands in that there is no remedy available to them as is provided to needy wives by the article. The weakness of the argument is that it begs the question whether there is a similar remedy available to needy husbands in the first instance. We do not find this to be the case. In reviewing the history of Art. 160, we find that it made its appearance in the Civil Code of 1870 after being omitted from the Codes of 1808 and 1825. By an act of the Legislature in 1827 the article in substantially the same form as it now exists was adopted along with provisions for the grounds for divorce found in Art. 139 and other divorce related articles. The Act of 1827 was substantially re-enacted by Act 307 of 1855 and then was made a part of the 1870 Code. On the other hand, Art. 301 of the Code Napoleon of 1804 in effect provided Art. 160 type alimony for either spouse who was in need after divorce, and when the Civil Code of 1808 was adopted this provision was omitted along with other Code Napoleon divorce related articles. In his discussion of the historical, political and legal background of the codification of the law in the Civil Codes of Louisiana, Professor A. N. Yiannopoulos in 'Louisiana Civil Law System' states that the Civil Code of 1808 did not repeal all prior laws but only those which were 'contrary to the dispositions' or 'irreconcilable with them.' Cited is Cottin v. Cottin, 5 Mart(O.S.) 93 (La.1817) in which it was held that the ancient laws 'must be considered as untouched, whether the alterations and amendments, introduced in the digest, do not reach them.' When the Code of 1825 was adopted it was intended that it be 'an all inclusive piece of legislation, intended to break definitively with the past,' but in Flower v. Griffith, 6 Mart. (N.S.) 89 (La.1827) it was held that the provisions of the old Code continued to be in force unless expressly modified, suppressed or superseded by the new provision.

When the Legislature saw fit to provide for divorce in 1827 and for the remedy to the needy divorced wife it was responding to conditions and customs which prevailed at that time. It seems to us that there was no intention on the part of the Legislature to foreclose against needy husbands by the passage of that act, but in that day and time the problem of the needy husband was simply not envisaged by the Legislature. The relative positions of men and women in that society were such that the case of the needy husband seeking alimony from his wife was so rare, and perhaps would have been so bizarre, that the Legislature did not provide a statutory remedy for that situation. Conditions were much the same in 1855 when the Act of 1827 was re-enacted, and in 1870 when the present Civil Code was adopted. Thus, we know that alimony for the divorced husband was once available by virtue of positive statute in the Code Napoleon, we know that the Legislature has by positive enactment provided for alimony for divorced wives, there has never been a positive legislative statement to the effect that divorced husbands cannot claim alimony, and in our research of the jurisprudence we find no case where the husband has been denied or has even applied for alimony after a divorce. We have concluded therefore that the courts may, in the appropriate case and consistent with sound Civilian principles award alimony to a divorced husband, and therefore the existence...