Tanner v. Tanner , 229 La. 399 ( 1956 )

PONDER, Justice.

The plaintiff has appealed from a judgment awarding the defendant $200 attorney’s fees for services rendered in a divorce suit.

The plaintiff brought suit against the defendant for divorce under the provisions of LSA-R.S. 9:301 on the ground that he and his wife had lived separate and apart for more than two years. The defendant reconvened and asked for judgment on the same ground and for custody of the children, alimony, and attorney’s fees. On hearing of the case, the lower court gave judgment granting the plaintiff a divorce and dissolving the community of acquets and gains existing between him and the defendant. The custody of the children was awarded to the defendant with the right of visitation given to the plaintiff, the defendant’s right to claim alimony for herself and support for the children was reserved. The plaintiff was ordered to pay the defendant’s attorney’s fees in the amount of $200. The plaintiff has appealed only from that part of the judgment which awarded the defendant attorney’s fees.

The defendant did not answer the appeal and, therefore, the only question presented is the correctness of that part of the judgment awarding the defendant attorney’s fees.

The plaintiff contends that the community was dissolved at the time of the filing of the suit by him and that, therefore, the judgment awarding the attorney’s fees was erroneous because the wife was not successful in obtaining a judgment on her re-conventional demand. In support of his contention the plaintiff cites: Alpha v. Aucoin, La.App., 167 So. 835; Benedict v. Holmes, 104 La. 528, 29 So. 256; Spiller v. Spiller, 170 La. 813, 129 So. 212; Coco, Broussard & Dupuy v. Byrd, 2 La.App. 613 and Collins v. Collins, 194 La. 446, 193 So. 702. On the other hand, the defendant relies on the holdings in the cases of Martin v. Martin, 191 La. 761, 186 So. 94 and Jones v. Jones, 200 La. 911, 9 So.2d 227.

Article 2432 of the LSA-Civil Code provides : “The judgment which pronounces the separation of property, is retroactive as far back as the day on which the petition for the same was filed.” This article of the Civil Code has been consistently applied in suits for separation from bed and board and divorce, and decisions are numerous to that effect. Some of the more recent decisions holding that this article of the Civil Code is applicable are: Benedict v. Holmes, 104 La. 528, 29 So. 256; Gastauer v. Gastauer, 143 La. 249, 29 So. 326; Alpha v. Aucoin, La.App., 162 So. 835.

Under the provisions of Article 2432 of the LSA-Civil Code, the dissolution of the community reverts back to the time of the filing of the suit by the plaintiff and, therefore, the services of the defendant’s attorney were rendered after the dissolution of the community. Such being the case, the attorney’s fees is a debt of the wife and not that of the community. August v. Blache, 200 La. 1029, 9 So.2d 402; Gastauer v. Gastauer, supra; Alpha v. Aucoin, supra; and Benedict v. Holmes, supra.

The two cases cited by the defendant, Martín v. Martin, supra, and Jones v. Jones, supra, are not applicable. The attorney’s fees were allowed in those cases to the wife who had secured an award for a pension or alimony under the provisions of Article 160 of the LSA-Civil Code. We do not have such a situation in this case as there is no judgment awarding or denying alimony. The wife’s rights were merely reserved in the judgment to claim alimony.

For the reasons assigned, the judgment of the lower court is amended so as to disallow the award to the defendant for attorney’s fees in the sum of $200 and as thus amended the judgment is affirmed.

MORSE, J., concurs. HAMITER and SIMON, JJ., dissent. FOURNET, C. J., absent.