Sizeler v. Sizeler

ORDER This is a motion to dismiss a suspensive appeal. On March 10, 1978, the husband was ordered to pay his wife alimony pendente lite in the amount of $275 per month. There was no appeal from that judgment. In August, 1978, the wife filed a rule to increase alimony pendente lite and to annul the March judgment based on the husband’s deliberate misstatement of income. After a hearing, the trial court found that the husband had deliberately deceived the court and rendered judgment which “reformed and amended” the March judgment to provide for alimony at the rate of $500 per month from December 22, 1977 (the date of the filing of the original petition for separation and alimony) to September 15, 1978, and at the rate of $317 per month beginning September 15, 1978. The judgment also (1) declared that the amount of alimony payments was immediately made execu-tory, (2) found the husband was in contempt of court, and (3) sentenced him to a prison term and fine, which were suspended on the condition that he pay the cumulated alimony payments immediately and future payments timely. The husband devolutively appealed from that portion of the judgment which increased the alimony to $317 per month beginning September 15, 1978, and he suspensively appealed from that portion of the judgment which retroactively increased the alimony to $500. The wife then moved this court to dismiss the suspen-sive appeal, and that motion is now before us for adjudication. There is no suspensive appeal from a judgment relating to alimony. C.C.P. art. 3943; Malone v. Malone, 282 So.2d 119 (La.1973). However, the judgment which is suspensively appealed in this case is one annulling a prior judgment which had become final and definitive. Such a judgment, rendered pursuant to C.C.P. art. 2004, may be appealed suspensively. Accordingly, the motion to dismiss the suspensive appeal is denied.