Thevis v. Thevis
Also decided on this docket: La. Ct. App. 5th Cir., December 1, 1969 228 So. 2d 739; La. Ct. App. 1st Cir., March 19, 1953 63 So. 2d 892; La. Ct. App. 1st Cir., May 20, 1931 134 So. 732; La. Ct. App. 1st Cir., April 19, 1905 2 Teiss. 269
Thevis v. Thevis, 254 So. 2d 480 (La. Ct. App. 1st Cir. 1971).
Cited by
- Lee v. Lee 437 So. 2d 938 La. Ct. App. 2d Cir. 1983
- Delaney v. Delaney 339 So. 2d 945 La. Ct. App. 1st Cir. 1976
- Chauvin v. Chauvin 282 So. 2d 869 La. Ct. App. 3d Cir. 1973
Authorities cited
Identified automatically; this list may not be exhaustive.
- Nelson v. Walker 250 La. 545
- Russo v. Russo 205 La. 852
Opinion text
SAVOY, Judge (dissenting). Plaintiff, John J. Thevis, obtained a separation from bed and board from his wife, Nancy Andrus Thevis, on February 2, 1970. Prior thereto, the wife was granted alimony pendente lite at the rate of $225.00 per month commencing January 1, 1970, and monthly thereafter. After the judgment of separation was signed, which judgment was silent as to the payment of alimony, the husband and wife entered into a community property settlement. Among other things, the wife, in consideration of the sum of $10,000.00, waived any right to alimony and support. Thereafter, the husband filed suit for final divorce. The wife answered the petition, stating that her husband had failed and refused to pay alimony for over a year, and that she was entitled to alimony in the sum of $225.00 per month for her support and maintenance. After a hearing, judgment was granted in favor of the husband on May 6, 1971. Nothing in the judgment mentions alimony. From this judgment the wife has appealed to this Court. In this Court counsel for appellant wife takes the position that she is entitled to alimony pendente lite from January 1, 1970, until the final decree of court, May 6, 1971. Counsel for plaintiff-appellee contends that the community property settlement of February 2, 1970, relieves him of any future alimony payments; and, alternatively, the wife has not offered to return the $10,000.00 she received in said settlement, and that this would be a condition precedent for her setting aside the community property settlement. In the case of Nelson v. Walker, 250 La. 545 , 197 So.2d 619 , the Supreme Court of this state, citing Russo v. Russo, 205 La. 852 , 18 So.2d 318 , held that LSA-C.C. Article 2446 does not permit a wife to waive her right to alimony pendente lite granted her by the provisions of LSA-C.C. Article 148, and that any act waiving said alimony is a relative nullity. Since the wife in the instant case did not ratify the community property settlement prior to the divorce, she is entitled to alimony at the rate of $225.00 per month from January 1, 1970, through May 6, 1971. By consent alimony was fixed pen-dente lite at the rate of $225.00 per month. From the time the alimony was granted the wife until the divorce decree, no hearing was had setting aside the alimony award. I respectfully dissent from the majority opinion.