# Brenan v. Montz > Supreme Court of Louisiana · March 31, 1969 · 253 La. 897 URL: https://www.frixlaw.com/law-library/cases/9662326 ## Case - **Full name:** Mrs. Catherine BRENAN, Wife of Zenon Joseph MONTZ, Jr., v. Zenon Joseph MONTZ, Jr. - **Court:** Supreme Court of Louisiana - **Decided:** March 31, 1969 - **Citations:** 253 La. 897; 221 So. 2d 40; 1969 La. LEXIS 2929 - **Precedential status:** Published - **Opinion:** Dissent by Barham - **Judges:** Fournet, Barham - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9662326 ## Opinion text BARHAM, Justice (dissenting). The majority has concluded that the trial court, which was affirmed by the Court of Appeal, abused its discretion, specifically granted by Civil Code Article 160 to allow alimony to the wife upon final divorce in certain instances. The pertinent language *905 of Article 160 is: “When the wife * * * has not sufficient means for her support, the court may allow her * * * alimony which shall not exceed one-third of his [the husband’s] income * * I believe that the majority has erred in interpreting the facts of this case, and even under its factual determination I think it has applied the jurisprudence in light of circumstances and conditions in existence almost 20 years ago which have radically changed. The stipulated value of the home and furniture owned by Mrs. Montz is $18,000.-00. Mrs. Montz also has $6000.00 in cash or other assets, and an interest in $6000.00 contingent upon her husband’s remaining in his present employment which cannot be considered as part of her present assets. The principal case relied upon by the majority, Smith v. Smith, 217 La. 646 , 47 So.2d 32 (1950), involved a wife who had assets of $20,000.00 and income from these assets of $35.00 per month. Each of the other three cases cited by the majority considered a wife with both income and assets whose economic situation was much better than that of the wife in Smith v. Smith. Since 1950, when the Smith case was decided, the consumer price index shows an increase of approximately 50 per cent, and the purchasing power of the dollar has declined approximately 50 per cent. 1 We may therefore reasonably conclude that in a comparison with Smith v. Smith, Mrs. Montz’s home, presently valued at $18,000.-00, would have had a maximum worth of $12,000.00, and her other assets of $6000.00 would have had an actual worth of $4000.-00, so that her total assets would have-been $16,000.00. Additionally, she is ill, has special need for medical care and expenditures, and is totally without independent income. Not only does the majority holding fail to consider the special facts of this case, but it also does not take into consideration the rapid escalation of living costs and the equally rapid decline in the purchasing power of the dollar. This case, and each case, mut be decided upon its own facts in light of all the elements which are so consequential and significant in measuring the need for support.- The majority has extended the prior jurisprudence too far, for Mrs. Montz’s financial status is lower than that of any of the wives considered in the cases discussed by the majority. Additionally, the prior jurisprudence and the majority holding here would require a divorced wife to seriously deplete her assets before she could successfully claim alimony. Such a holding cannot even be said to be beneficial to the husband in this case, for if *907 the divorces! wife depletes her assets, wastefully or otherwise, then the burden upon the;¿husband for monthly support will be increased. Originally alimony under the Code Napoleon and our Civil Code of 1870 was given to the wife when the divorce was obtained because the husband had been at fault, and some writers have expressed the theory that it was an award in the nature of damages for the wrongful act or delict of the husband. But fault of the husband has no relation to the alimony which is allowed under Article 160 of our present Civil Code, when the wife has not been at fault and the final divorce has been obtained after two-year separation or after prior judgment of separation without reconciliation. The provision for this alimony is a legislative attempt to fix economic responsibility for women who, having been deprived by divorce of their husbands’ earnings, are now without means or income for their maintenance. This socio-economic legislation is intended to assign responsibility for the dependency of such divorced women so as to relieve them from destitution and the State from their care. It is my belief that the trial court did not abuse its discretion, the Court of Appeal properly affirmed, and the majority has erred in interfering with that judgment. I am of the further opinion that the majority holding extends the jurisprudence which already tends to disregard the intent and meaning of Article 160, to the detriment of the litigants, society, and the public fisc. I respectfully dissent. . Statistical Abstract of the United States, United States Department of Commerce, Bureau of Census, 1968, p. 341; Survey of Current Business, United States Department of Commerce, Office of Business Economics, February, 1£>69, p. S-9, See also Consumer Price Index in the same publications. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9662326. Public record. Not legal advice.