631 Precedential Affirmed Processed

Allen v. Allen

Louisiana Court of Appeal, Fourth Circuit · Filed January 2, 1962 · 136 So. 2d 168

Also decided on this docket: La. Ct. App. 3d Cir., November 5, 1962 146 So. 2d 263; La. Ct. App. 1st Cir., June 9, 1930 128 So. 709

Cited by

Whitt v. Vauthier 316 So. 2d 202 La. Ct. App. 4th Cir. 1975
Cortes v. Fleming 307 So. 2d 611 La. 1974
Rodriguez v. Rodriguez 245 So. 2d 765 La. Ct. App. 4th Cir. 1971
Leach v. Leach 238 So. 2d 26 La. Ct. App. 1st Cir. 1970
Bell v. Bell 225 So. 2d 753 La. Ct. App. 4th Cir. 1969
Granger v. Granger 193 So. 2d 898 La. Ct. App. 3d Cir. 1967
Vinet v. Vinet 184 So. 2d 33 La. Ct. App. 4th Cir. 1966
Unverzagt v. Galjour 182 So. 2d 140 La. Ct. App. 4th Cir. 1966
Elchinger v. Elchinger 181 So. 2d 297 La. Ct. App. 4th Cir. 1965

Authorities cited

Identified automatically; this list may not be exhaustive.

Cotton v. Wright 193 La. 520
Pisciotto v. Crucia 224 La. 862

Opinion text

136 So.2d 168 (1962) Madeline ALLEN v. Columbus Joseph ALLEN. No. 631. Court of Appeal of Louisiana, Fourth Circuit. January 2, 1962. *169 Morphy & Freeman, A. D. Freeman, Jr., New Orleans, for plaintiff and appellant. Columbus Joseph Allen, defendant-appellee, unrepresented and failed to appear in pro. per. Before REGAN, SAMUEL and HALL, JJ. REGAN, Judge. Plaintiff, Madeline Allen, filed a rule [1] against her husband, Columbus Joseph Allen, the defendant, to show cause why he should not be held in contempt for failing to comply for more than a year prior to the filing of the plaintiff's rule with a judgment awarding her the sum of $12.50 weekly as alimony pendente lite, and why the judgment for the past due alimony should not be made executory. After a hearing the trial judge dismissed the rule for contempt; he also ordered the defendant to pay plaintiff $12.50 per week alimony for the support of his child beginning August 29, 1961 and rendered judgment in favor of plaintiff for $700 past due alimony. However, the trial court specified that the judgment for past due alimony would become executory only in the event defendant failed to comply with the court's order to make future payments timely. Plaintiff has appealed that part of the judgment which suspends execution thereof, and the only question this appeal has posed for our consideration is whether the suspension was proper. The law is well settled to the effect that a judgment for past due alimony is like any other money judgment. [2] The right to obtain a judgment for past due alimony has been recognized as a property right of the person from whom the alimony has been withheld and who is entitled to receive it by virtue of a court order. [3] This principle is recognized in the LSC-Code of Civil Procedure, wherein Article 3945 outlines the procedure to be followed by the party aggrieved. It provides: "When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have that amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony." The rationale of the above article clearly negates the possibility of a trial judge refusing to make a judgment for past due alimony executory upon proof that payments are in arrears, for it states the court "shall render judgment", and does not use the term "may render judgment", which would permit the exercise of the court's discretion. In view of the existing jurisprudence and the plain meaning of the above article, we are compelled to reason that the trial court did not possess the discretion to withhold from plaintiff the right to execute her judgment. For the reasons assigned, the judgment appealed from is reversed only insofar as *170 it suspends execution of plaintiff's judgment of $700 representing past due alimony, and it is now ordered that the judgment for $700 be made executory; in all other respects the judgment is affirmed. Reversed in part; affirmed in part and rendered. NOTES [1] A contradictory motion. See LSA-C.C.P. Art. 3945. [2] Cotton v. Wright, 193 La. 520 , 190 So. 665 . [3] Pisciotto v. Crucia, 224 La. 862 , 71 So.2d 226 .