4880 Precedential Processed

Kennedy v. Kennedy

Louisiana Court of Appeal, Fourth Circuit · Filed May 2, 1972 · 261 So. 2d 657

Also decided on this docket: La. Ct. App. 3d Cir., February 26, 1975 308 So. 2d 837; La. Ct. App. 1st Cir., November 16, 1959 116 So. 2d 104; La. Ct. App. 1st Cir., January 24, 1910 7 Teiss. 166

Cited by

Criticized in 1

Taddonio v. Kinney-Taddonio 422 So. 2d 1282 La. Ct. App. 4th Cir. 1982
Lewis v. Lewis 395 So. 2d 426 La. Ct. App. 1st Cir. 1981
Vining v. Vinings 389 So. 2d 886 La. Ct. App. 1st Cir. 1980
Hirsch v. Hirsch 378 So. 2d 539 La. Ct. App. 4th Cir. 1979
Webb v. Webb 357 So. 2d 1288 La. Ct. App. 3d Cir. 1978
George v. George 347 So. 2d 927 La. Ct. App. 3d Cir. 1977
Adoption of Rapp 348 So. 2d 107 La. Ct. App. 4th Cir. 1977
Golson v. Golson 341 So. 2d 1229 La. Ct. App. 1st Cir. 1976
Dupre v. Pelotto 336 So. 2d 329 La. Ct. App. 1st Cir. 1976
Broussard v. Menard 316 So. 2d 485 La. Ct. App. 3d Cir. 1975
Webster v. Webster 308 So. 2d 302 La. Ct. App. 1st Cir. 1975
Vetter v. Vetter 299 So. 2d 899 La. Ct. App. 2d Cir. 1974

Authorities cited

Identified automatically; this list may not be exhaustive.

Thornton v. Floyd 229 La. 237
Hawthorne v. Hawthorne 214 La. 905
Bowsky v. Silverman 184 La. 977
Starkey v. Starkey 209 So. 2d 593

Opinion text

261 So.2d 657 (1972) Beulah Strother KENNEDY v. Thomas J. KENNEDY. No. 4880. Court of Appeal of Louisiana. Fourth Circuit. May 2, 1972. *658 Donelon & Cannella, James J. Donelon, III, and James L. Cannella, Metairie, for plaintiff-in-ruleappellant. Lambert J. Hassinger, New Orleans, for defendant-in-ruleappellee. Before REGAN, SAMUEL and REDMANN, JJ. SAMUEL, Judge. This is an appeal by the husband (whose name appears in some parts of the record as Thomas J. Kennedy and in other parts as Thomas J. Kennedy, Jr.) from a judgment dismissing his rule for a reduction in the amount he had been condemned to pay for the support of his wife and children. On August 14, 1969 Mrs. Kennedy filed suit for a separation from bed and board on the ground of cruel treatment. Shortly thereafter there was judgment on rule, by consent, awarding custody of the two minor children to Mrs. Kennedy and condemning Mr. Kennedy to pay alimony and child support in the amount of $284 per month. On October 14, 1969, by default, Mrs. Kennedy obtained a judgment of separation which gave her custody of the children together with alimony and child support in the same amount to which the parties previously had agreed. Subsequent to rendition of the judgment of separation Mr. Kennedy filed his rule to reduce the amount of alimony and child support on the ground that his wife then was gainfully employed. On January 11, 1971, after a hearing thereon, there was judgment dismissing the rule. This is the judgment from which this appeal is taken. On January 20, 1971 Mr. Kennedy filed a petition for divorce (under LSA-R.S. 9:302) on the ground that more than one year and 60 days had passed since the date of the judgment of separation and no reconciliation had taken place between himself and his wife. He obtained a judgment of divorce by default on February 17, 1971. That judgment only dissolved the marriage; it made no mention of alimony or child support. As a result of the divorce judgment, we cannot decide the sole question presented by this appeal, whether or not the $284 a month alimony and child support awarded in the judgment of separation should be reduced, because that award no longer has any effect and the question is now moot. Nor do we consider a possible reduction only for the short period of time between the date of the judgment on the rule to decrease and the date of the judgment of divorce; such a decrease would be inconsequential in amount and, as we understand the arguments and briefs of counsel, is not sought in this appeal. Our settled jurisprudence is: Any judgment awarding alimony or child support obtained as an incident to a suit for separation from bed and board abates and ceases to have effect following a judgment of divorce. As the granting of the divorce abates the entire separation suit, including incidental alimony and child support awarded therein, following the divorce the wife may no longer proceed under a judgment rendered in the separation suit for alimony for herself or support for the children of the marriage. She can make such claim only as an incident to the divorce suit prior to rendition of the judgment of divorce or by separate action subsequent to that judgment. Thornton v. Floyd, 229 La. 237 , 85 So.2d 499 ; Hawthorne v. Hawthorne, 214 La. 905 , 39 So.2d 338 ; Bowsky v. Silverman, 184 La. 977 , 168 So. 121 ; Starkey v. Starkey, La.App., 209 So.2d 593 . For the reasons assigned, the appeal is dismissed; all costs thereof to be paid by the appellant. Appeal dismissed.