#### Vertie L. HOLLIDAY, Plaintiff and Appellee, v. Andrew S. HOLLIDAY, Defendant and Appellant.

No. 5948.

Court of Appeal of Louisiana, Third Circuit.

May 13, 1977.

Rehearing Denied June 24, 1977.

*1383Gahagan & Gahagan, by R. E. Gahagan, Natchitoches, for defendant and appellant.

Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff and appellee.

Before HOOD, CULPEPPER and STOKER, JJ.

CULPEPPER, Judge.

The plaintiff wife sued the defendant husband for separation from bed and board on the grounds of cruelty. She also prays for alimony pendente lite and for child custody and child support. The district court granted to the plaintiff wife a judgment of separation from bed and board on the grounds of cruelty, awarded the wife $400 per month as alimony pendente lite and awarded her custody of one child and the sum of $50 per week as child support. The defendant husband appeals only that portion of the judgment which awards to the wife alimony pendente lite.

The issue is whether the waiver by the wife in an antenuptial contract of all claims for alimony is an agreement against public policy and therefore an absolute nullity. We ultimately conclude that *Nelson v. Walker,*250 La. 545, 197 So.2d 619 (1967) is controlling on the issue. That case holds that a waiver of alimony pendente' lite, by the wife in a community property settlement following a judgment of separation from bed and board is not an absolute nullity but is only a relative nullity, since the statutory requirements for alimony penden-te lite are established for the protection of an individual and not for the protection of public order and good morals.

The facts of the present case are that in April of 1963 the plaintiff and the defendant entered into an antenuptial contract in which they agreed that there would be no community of acquets and gains during the marriage. In paragraph 13 of the contract the wife expressly waived all claims for alimony by the following language:

> “It is further understood, agreed and contracted by and between the parties hereto, and the said Vertie Eagles, Nee Leeper, does specifically and especially waive, give up and relinquish any and all rights or claims which she might have to claim or collect sustenance, alimony, support, maintenance or funds for any reason from the said Andrew Sampson Holliday, his property, estate, succession, funds or otherwise in the event the parties shall discontinue living together as man and wife in the same house or under the same roof after the contemplated marriage between them, or in the event a judicial separation or divorce is obtained by either of the parties hereto. This relinquishment and waiver to be binding and effective regardless of the cause or reason for the discontinuance of the parties living together and regardless of who is at fault in the event of a judicial separation or divorce between them.”

The parties were married in May of 1963. On June 25,1976 the plaintiff wife filed the present suit for separation from bed and board on the grounds of cruelty. She also *1384prayed for alimony pendente lite. The defendant husband denied cruelty on his part and filed a reconventional demand for judgment of separation from bed and board on the grounds of the wife’s cruelty. The district court rendered judgment of separation from bed and board in favor of the wife, rejected the husband’s reconventional demand, and awarded the wife alimony pen-dente lite in the sum of $400 per month.

The defendant husband contends the antenuptial contract was drawn in strict compliance with the provisions of LSA-C.C. Article 2325, et seq. regarding marriage contracts, and that the waiver by the wife in that contract of any claim for alimony following a judicial separation is not against public policy and is a valid and binding agreement.

LSA-C.C. Article 2325 expressly provides for antenuptial contracts as follows:

> “In relation to property, the law only regulates the conjugal association, in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals, and under the modification hereafter prescribed.”

LSA-C.C. Article 2326 provides that an antenuptial contract cannot alter the order of inheritance by the children or posterity of the parties. Article 2327 provides that such a contract cannot derogate from the power of the husband over his wife and children. Article 2392 expressly provides that the parties may stipulate that there shall be no community of acquets and gains. Article 2395 provides that where the parties agree that they shall be separate in property, each contributes to the expenses of the marriage in the manner agreed to in their contract, or, if there be no agreement in the contract, the wife contributes one-half of the expenses of the marriage.

From a review of the above codal provisions regarding antenuptial contracts, it is apparent that there is no provision in the articles prohibiting a waiver by the wife of her claim for alimony pendente lite. To the contrary, Articles 2392-2396 appear to contemplate that where the parties agree there shall be no community of acquets and gains and that each shall be separate in property, the expenses incurred during the marriage shall be borne one-half by each. Since alimony pendente lite, under LSA-C.C. Article 148, arises from the husband’s obligation to continue to support his wife during the existence of the marriage, *Gravel*v. *Gravel,*331 So.2d 580 (La.App. 3rd Cir. 1976), it would appear that Articles 2392-2396 contemplate that the parties can agree in an antenuptial agreement that the husband will not have the duty to support his wife following a judgment of separation from bed and board.

The plaintiff wife relies on LSA-C.C. Article 119, which provides with reference to the duties of married persons that “The husband and wife owe to each other mutually, fidelity, support and assistance.” Plaintiff cites *Favrot v. Barnes,*332 So.2d 873 (La.App. 4th Cir. 1976) in support of her contention that her waiver of alimony is an absolute nullity since it is against public policy. In that case, an antenuptial contract contained a waiver by each party of every “claim to the property” of the other in case of divorce. In denying the wife’s claim for alimony after divorce, LSA-C.C. Article 160, the court held that the waiver by the wife in the antenuptial agreement of any “claim to the property” of the husband in case of divorce is not a waiver of alimony, but instead is only a waiver of any claim to the property of the husband. However, the court stated in dicta, without deciding, that there may be some question as to whether such a waiver of alimony after divorce is against public policy. The court stated:

> “We first reject the husband’s argument that the agreement’s waiver by each of every ‘claim to the property’ of the other in case of divorce or death is a waiver of alimony. *If public policy were to allow such a waiver, this agreement does not constitute one.*Alimony to a divorced wife is not a ‘claim to the property’ of the husband; it is a claim against the husband, limited by his ‘income’, C.C. 160.” (Emphasis supplied)

*1385In *Favrot v. Barnes,*supra, the antenup-tial agreement also contained the provision whereby the parties agreed to limit sexual intercourse to about once a week. The husband asserted, as divorce-causing fault, that the wife did not keep this agreement but sought intercourse three times a day. Quoting the provisions of LSA-C.C. Article 119 that “The husband and wife owe to each other mutually, fidelity, support and assistance.”, the court held that LSA-C.C. Articles 2325, et seq., permitting antenup-tial contracts does not authorize contractual modification of the “conjugal association”. The court stated that marriage obliges the spouses to fulfill “the reasonable and normal sex desires of each other.”, citing *Mudd v. Mudd,*206 La. 1055, 20 So.2d 311 (1944).

Our Supreme Court denied the application for writs by the husband in *Favrot v. Barnes,*indicating agreement with the holding by the Court of Appeal which construed LSA-C.C. Article 119 and Article 2325, et seq., as prohibiting an agreement in an antenuptial contract limiting sexual relationships between the parties. We note, in passing, that the wife’s application for writs was granted and the Supreme Court held, on another issue, that the unemployed wife’s earning capacity did not bar her from alimony after divorce under Article 160. See 339 So.2d 843 (S.Ct.1976).

Thus, neither the Court of Appeal nor our Supreme Court held in *Favrot v. Barnes,*supra, that the wife cannot waive, in an antenuptial contract, her claim for alimony pendente lite.

Of course, the jurisprudential rule is that a waiver of alimony pendente lite by the wife in a community property settlement following a judicial separation is null, since it is not one of the permissible contracts between husband and wife during marriage under LSA-C.C. Articles 1790 and 2446. As stated in the Casenote, 13 Loyola Law Review 179, on *Nelson v. Walker,*supra, some of the early cases had held this was an absolute nullity. But *Nelson v. Walker*settled that issue by holding the nullity in those cases is only relative. In the present case we are not concerned with relative nullity under LSA-C.C. Articles 1790 and 2446, since the antenuptial contract at issue here was entered into before marriage, and its provisions are valid unless they are against public policy.

We recognize persuasive arguments can be made that a waiver of alimony pen-dente lite, as in the present case, should be against public policy' because the husband has the management and control of community property and his obligation to support his wife during the marriage, which would include the period between the judgment of separation from bed and board and the time of the final divorce, should be a duty which arises out of the basic nature of marriage, described in LSA-C.C. Article 119 as the mutual duty of “fidelity, support and assistance.” Our brothers of the Fourth Circuit apparently reasoned in *Favrot v. Barnes*that the duty of “fidelity”, including the duty to fulfill the reasonable and normal sexual desires of each other, is a matter of public policy and cannot be waived or modified by contractual agreement between the spouses, and the Supreme Court apparently agreed with this by denying the husband’s application for writs. Nevertheless, as to the duty of the husband to pay alimony pendente lite under Article 148, we are constrained to follow the express holding of our Supreme Court in *Nelson v. Walker,*250 La. 545, 197 So.2d 619 (1967) where the court stated:

> “We find that Mrs. Brashear’s error in waiving her right to alimony pendente lite constituted a relative nullity. The nullity stemmed from an act in derogation of laws enacted for the individual’s protection and was not in violation of public order or good morals. Cf. *Succession of Delesdernier,*La.App., 184 So.2d 37, 56. ‘This court has differentiated between absolute nullities in derogation of public order and good morals and those which are established in the interest of individuals. The latter nullities are susceptible of ratification, either expressly or impliedly, and may be prescribed against, while the former are never susceptible of ratification and can never be prescribed.’ ”

*1386For the reasons assigned, the judgment appealed is amended so as to delete therefrom the award to the plaintiff wife of alimony pendente lite. Otherwise, the judgment is affirmed. All costs of this appeal are assessed against the plaintiff wife.

AFFIRMED, AS AMENDED.

STOKER, J., concurs and will assign written reasons.

STOKER, Judge,

concurring.

The majority opinion in this case rests entirely on the pronouncement in *Nelson v. Walker,*250 La. 545, 197 So.2d 619 (1967) which held that in the absence of incapacity of the parties, there could be an agreement to waive the right to claim alimony in the future. In the *Nelson*case, the Louisiana Supreme Court held the agreement in that case was a nullity because it had been entered into while the parties were still married although judicially separated. It was made as a part of a community property settlement after the separation judgment. However, the Supreme Court held that the nullity in question was only relative and not absolute, and, therefore, it could be ratified. Ratification was found on the ground that prior to the divorce the wife had not attacked the waiver agreement and years had passed. This pronouncement made in 1966 in *Nelson v. Walker,*supra, was apparently a *dictum*statement inasmuch as the Court found that the alimony waiver did not form such an integral part of the community settlement agreement that the settlement could not be upheld independently of the alimony waiver. Thus, the pronouncement was not necessary to the resolution of the basic question in *Nelson v. Walker*which was concerned with the validity of title to real property acquired by Mrs. Nelson in the community property settlement. Mrs. Nelson was not claiming alimony in contravention of the waiver of alimony which she had made in what purported to be a part of the consideration for the transfer of the real property to her by her former husband in the community property settlement.

In view of the fact that in *Nelson*v. *Walker*the Louisiana Supreme Court did not consider the validity of the waiver of alimony, either as necessary for a decision in the case, or in a direct contest over the issue, it may be open to question at this time whether the Louisiana Supreme Court would adhere to the basic rationale of the *dictum*of *Nelson v. Walker,*supra. That rationale was that, where the parties are not incapacitated from contracting with one another, the right to future alimony may be waived because alimony is a right established in *favor of the person*rather than for *purposes of public order.*

Our appellate courts have recently considered the constitutionality of alimony in the context of challenges on the ground of constitutional prohibitions against sex-oriented discriminations in statutes and laws. For example, see *Williams v. Williams,*331 So.2d 438 (La.1976), which upheld the constitutionality of alimony under Article 148 of the Louisiana Civil Code. Traditional rules relative to alimony in several other aspects have also been under attack. An example has been the contention that in alimony considerations the *earning capacity*of a non-working wife should be considered the same as where a wife actually accepts employment and *earns income. Ward v. Ward,*339 So.2d 839 (La.1976).

It would seem implicit in the pronouncements in these cases that the courts view alimony owed by spouses, or former spouses, as something more than a provision for the benefit of the individual, that it must have some broader foundation and would seem to be based on public order or public good. If such a postulate is correct, then a waiver of alimony in a marriage contract or antenuptial agreement, would be null by reason of the prohibition of Article 11 of the Louisiana Civil Code.1

*1387A distinguished former Chief Judge of this Court, Judge J. Cleveland Frugé, once (while a district judge) declared Article 160 of the Louisiana Civil Code to be unconstitutional on the ground that it treated men and women unequally. The Louisiana Supreme Court reversed. *Hays v. Hays,*240 La. 708, 124 So.2d 917 (1960). In referring to that case one reviewer has made this comment: “There may be much validity, too, to the argument advanced but not answered in an alimony case some years ago: if alimony is not in the public interest, then to order anyone to pay alimony to another amounts to taking private property for private use.” 2

It would seem to me that if alimony has such a strong constitutional basis, as it has been held to have, and has such a fundamental public policy position in our law, as it has been held to have, then it is not established in favor of the individual but in favor of the public good. I would agree with the comment statement quoted above that if alimony is not in the public interest, to order another to pay it is unconstitutional. Parties contemplating marriage may view alimony in one light at the time of contracting. However, after marriage, the passage of time, change in the experience, health, obligations and other conditions of the party who would claim alimony, may disclose equities unanticipated at the time of marriage. Strong equities are urged to be present in this case which may serve as an example. Aside from protecting'the individual from lightly waiving future rights which may seem to be of remote value at the time, the public has an interest is not having a spouse left in necessitous circumstances, often destitute circumstances, which requires society to bear the cost of care either directly, or indirectly, through the results of forcing an individual to live at a bare survival level.

Despite the considerations reviewed above, I feel this court is bound by the pronouncement relied upon in the majority opinion contained in *Nelson v. Walker,*supra. Although it may be *dictum*only, it is the only statement of authority on the subject. Therefore, I concur.

1

. Article 11 of the Louisiana Civil Code provides as follows:

Individuals can not by their conventions, derogate from the force of laws made for the preservation of public order or good morals.

But in all cases in which it is not expressly or impliedly prohibited, they can renounce what the law has established in their favor, when the renunciation does not affect the rights of others, *and is not contrary to the public good.*(Emphasis supplied.)

2

. Professor Robert A. Pascal, in Symposium, 28 Louisiana Law Review 314, (1968).