# Hillard v. Hillard

> Supreme Court of Louisiana · April 26, 1954 · 225 La. 507

URL: https://www.frixlaw.com/law-library/cases/9699867

## Case

- **Full name:** Hillard v. Hillard
- **Court:** Supreme Court of Louisiana
- **Decided:** April 26, 1954
- **Citations:** 225 La. 507; 73 So. 2d 442; 1954 La. LEXIS 1242
- **Precedential status:** Published
- **Opinion:** Dissent by McCALEB
- **Judges:** Moise, Hawthorne, McCaleb
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by Fontenot v. Fontenot, 1965 La. App. LEXIS 4426 (1965).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699867

## Opinion text

McCALEB, Justice
(dissenting in part).
I think that the trial judge was correct in refusing alimony to the wife subsequent to the judgment in favor of the husband for a separation from bed and board, as there is no law in this State requiring him to make such an award.
The only provisions of the LSA-Civil Code, dealing with the wife’s right to alimony, are Article 148, prescribing for payment of alimony pendente lite, and Article 160, providing for an allowance in the form of a pension to the wife after divorce, when she has obtained the judgment, and in cases of divorce granted under the two year separation law, when the wife has not been at fault.
Article 148, which the majority holds controlling of the case at bar, declares:
“If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.” (Italics mine.)
By the express terms of this Article, the alimony is payable only during the pendency of the suit, whether it be one for a separation or a divorce. Accordingly, upon the rendition of final judgment, there is *519 no statutory sanction for the continuance of the alimony pendete lite. But, despite this, the Court has erroneously deduced on two occasions, in Anzalone v. Anzalone, 182 La. 234 , 161 So. 594 and Arnold v. Arnold, 186 La. 323 , 172 So. 172 , that alimony pendente lite is payable under Article 148 of the LSA-Civil Code after final judgment of separation from bed and board.
While the Anzalone decision simply makes the bald statement that Article 148 authorizes the payment of the alimony after judgment of separation (when it does not), the opinion in the Arnold case (which dealt with the wife’s right of alimony following a separation decree in her favor) attempts to justify its conclusion on the basis that a judgment of separation from bed and board is only an interlocutory decree which does not dissolve the bonds of matrimony and that, therefore, alimony (pendente lite) must be paid until the marriage is dissolved by final judgment.
The reasoning in the Arnold case cannot withstand critical analysis. Imprimis, a judgment of separation from bed and board is not an interlocutory decree. It is a final disposition of the matter in controversy, carrying with it a separation of the goods and effects, see Article 155, LSA-Civil Code, i. e., dissolving the community. Article 136, LSA-Civil Code. On the other hand, an interlocutory decree is defined by Article 538 of the Code of Practice to be a judgment which pronounces on preliminary matters during the course of the proceedings and does not decide on the merits.
However, notwithstanding the faulty premise upon which the Arnold case is pitched, its conclusion is sustainable, in my view, on another theory — that is, that the court, under its equity powers derived from Article 21 of the LSA-Civil Code — was vested with the right of continuing the alimony in favor of a wife, when she had obtained the judgment of separation as a result of the „ husband’s default in his marital obligations. In those cases, common justice demands that the wife in necessitous circumstances be supported until judgment of final divorce.
But, on the same basis of equity and good conscience, I believe that the judge in the case at bar was eminently correct in refusing alimony to the defendant wife, who has been declared by final judgment to have broken her marital vows by abandoning her husband, see Article 120 of the LSA-Civil Code, without just cause.
The many cases cited in the majority opinion, which contains hyperbolical statements to the effect that the wife’s right to obtain alimony pendente lite does not terminate until the marriage is dissolved either by death or divorce, are patently distinguishable from the case at bar on their particular facts — with the exception of the decision in Anzalone v. Anzalone. The ruling in that case — that a husband *521 obtaining a final judgment of separation from bed and board is required to pay alimony until divorce to the wife found guilty of her marital obligations — is unsupported, in my view, either by law or logic and should be overruled.
I therefore respectfully dissent from that part of the majority opinion reversing the judgment denying alimony.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699867. Public record. Not legal advice.