Wilson v. Calvin, 40398

• Decision Date: 28 April 1952
• Docket Number: No. 40398,40398
• Citation: 221 La. 451,59 So.2d 451
• Parties: WILSON v. CALVIN.
• Court: Louisiana Supreme Court

Page 451

59 So.2d 451 221 La. 451 WILSON
v.
CALVIN. No. 40398. Supreme Court of Louisiana. April 28, 1952.
Rehearing Denied June 2, 1952.

[221 La. 454]

Page 452

Sylvian W. Gamm, Isaac Abramson, Shreveport, for plaintiff-appellant.

Samuel P. Love, Kenneth Rigby, Shreveport, for defendant-appellee.

HAWTHORNE, Justice.

Plaintiff, Lester Wilson, instituted this suit praying that Mrs. Jacquetta Calvin, from whom he was divorced by a judgment of court, be enjoined and restrained from attempting to collect alimony pendente lite or from enforcing the judgment of the court which awarded alimony to her pendente lite in the sum of $250 a month. After trial on the merits, his suit was dismissed, and he has appealed to this court.

Plaintiff and defendant were married in Bossier Parish, Louisiana, on February 9, 1948, and of this marriage one child was born, who was about two years of age at the time of the trial in the lower court. On April 26, 1949, Mrs. Jacquetta Calvin obtained a judgment of separation from bed and board from her husband, and shortly thereafter a judgment was rendered awarding her alimony pendente lite in the sum of $250 per month. On July 12, 1950, an absolute divorce, based on the judgment of separation from bed and [221 La. 455] board previously rendered in favor of the wife, was granted upon petition of the husband.

Plaintiff-appellant contends that his marriage to the defendant was illegal, null, void, and of no effect because it was bigamous, and that consequently the judgment of separation from bed and board, the award to the wife of alimony pendente lite, and the judgment of absolute divorce were all null, void, and of no effect. Plaintiff is seeking to avoid the payment of alimony by collaterally attacking the validity of a judgment of divorce dissolving a prior marriage of the defendant, rendered almost 20 years ago by a court which the record discloses had jurisdiction of the subject matter.

Almost 20 years before her marriage to plaintiff, Mrs. Jacquetta Calvin was married to Alvin G. Harkleroad. On December 21, 1929, the district court of Caddo Parish rendered a judgment in her favor granting to her a separation from bed and board from Harkleroad, and on January 7, 1931, the same court rendered a judgment of absolute divorce in her favor based on the judgment of separation from bed and board previously rendered. After this divorce, Harkleroad, who has been sued as an absentee through a curator ad hoc, obtained a certified copy of the judgment of absolute divorce, and, relying on it, he married again, and children have been born of this marriage. Subsequently to this divorce, Mrs. Jacquetta Calvin married the [221 La. 456] plaintiff, and one child was born of their marriage.

In his effort to establish that his marriage to the defendant was bigamous, plaintiff attacks the validity of the separation and divorce judgments rendered in favor of his wife against her first husband, Harkleroad. He argues that the judgment of separation from bed and board and the judgment of absolute divorce in favor of his wife against Harkleroad were absolutely null and void for the reasons (1) that the judgment of separation from bed and board was rendered on confirmation of a default prematurely taken, and (2) that the judgment of absolute divorce was rendered against Harkleroad, an absentee, without the appointment of a curator ad hoc to represent him and consequently without citation, and that the judgment was rendered against Harkleroad upon the filing of an unauthorized answer

Page 453

in his behalf and without a regular default having been entered. He cites and relies on Article 606 of the Code of Practice, which provides that the nullity of judgments may be demanded for certain vices of form. Among these are '* * * If the defendant has not been legally cited, and has not entered appearance, joined issue, or had not a regular judgment by default taken against him'.

There is a strong public policy against disturbing or declaring invalid a judgment of divorce, especially after a long period...