(106 So. 308)

No. 27041.

#### MONTELEONE v. O’HANLON.

(June 22, 1925.

On Rehearing, Nov. 2, 1925)

*(Syllabus by Editorial Staff.)*

I. Divorce i&wkey;>9—Reconvention by wife for separation on ground of abandonment not admissible in suit by husband to annul marriage for coercion and duress.

In suit by husband to annul marriage on ground of duress and coercion, defendant wife could not plead reconventional demand for separation on the ground of abandonment, since it is clear from the provisions of Civ. Code, arts. 143', 145, that procedure for separation must be' instituted by direct action in the manner provided therein, and cannot be brought in any other form. .

*7972. Trial <@=»3—Main demand and that in reconvention should be disposed of at one and same time.

The general rule is that the main demand .and one in reconvention should be disposed of at one and same time. ,

3. Divorce <&wkey;>9—Reconvention by wife for separation would not be allowed in husband’s suit to annul marriage so as to allow wife to mulct husband of alimony pending trial.

Where plaintiff husband sued to annul marriage on ground of coercion and duress, reconvention fort separation on ground of abandonment should not be allowed^ since in that case plaintiff would be compelled to 'wait trial of main action for months while he is being mulct of alimony, and plaintiff would either have to accede to the exaction of alimony or return to the matrimonial domicile.

4. Marriage <&wkey;62—Alimony not recoverable in suit to annul marriage.

Alimony is incidental to a suit for separation or for divorce, in view of Oiv. Code, arts. 148, 160, and cannot be recovered in an action to annul marriage.

O’Niell, C. J., and Thompson and St. Paul, JJ., dissenting.

Appeal from Civil District Court, Parish of Orleans; William H. Byrnes, Judge.

Suit by Frank J. Monteleone against Leah O’Hanlon to annul marriage, wherein the defendant in reconvention asks for a separation. From order and judgment of trial court assigning domicile to defendant and awarding her alimony pending suit, plaintiff filed exceptions to the rule for alimony and appeals from denial thereof.

Judgment reversed, and order that exception of no cause of action filed by plaintiff be sustained, re-conventional demands by defendant be dismissed, and cause remanded to lower court for trial on issue of nullity of marriage.

McCaleb & McCaleb, of New Orleans, for appellant.

H. W. Eobinson, of New Orleans, for appellee.

LAND, J.

The present suit has been brought by plaintiff to have his marriage to defendant declared to be null and void and of no effect, on the ground that his consent to said marriage was extorted by threats of personal violence. Plaintiff alleges that at the conclusion of the ceremony he left defendant, and has not since lived with or cohabited with or had any relations with her whatsoever.

Defendant denies in her answer that the consent of plaintiff to said marriage was obtained by duress, and avers that said marriage was entered into with the full and free consent of both contracting parties.

Assuming the position of plaintiff in re-convention, defendant alleges that plaintiff has abandoned her, prays that the reiterated summons required by law be issued, requiring plaintiff to return to the matrimonial domicile, and, after due proceedings had, for judgment of separation from bed and board, with alimony at the rate of $1000 per month pendente lite, and that the residence of her father, No. 1007 Music street in the city of New Orleans, be assigned to her as a domicile during the pendency of this suit.

The trial judge assigned domicile to defendant, as prayed for, and fixed the rule for alimony for hearing on November 7, 1924. and, on the trial of said rule awarded defendant alimony in the sum of $350 per month during the pendency of the suit.

Plaintiff filed the following exceptions to the rule to show cause why he should not be condemned to pay alimony to defendant:

> “(1) That this court is without power, authority, or jurisdiction to award alimony in these proceedings.

> “(2) That the rule for alimony discloses no right or cause of action.

> “(3) That the allegations of said rule for alimony is an answer to the main demand, admitting the allegations of material facts contained in plaintiff’s petition, as to plaintiff’s nonratification of the pretended and void marriage.

> “(4) That the so-called reconventional demand and the demand for alimony is not, on its face, a demand in consequence of the main demand for nullity of the marriage, nor is the so-called reconventional demand or rule for alimony necessarily connected with or incidental to the *799main demand, and by its nature is independent ■froto the main action. /

> “(5) That the order of the court on the reeonventional demand is null and void, and this court is without power, authority, or jurisdiction to fix the premises 1007 Music street (residence of defendant’s father) as a so-called matrimonial domicile for defendant in rule.

> “(6) That the order assigning a domicile to the defendant (plaintiff in rule) is also void, in that this court has no power, jurisdiction, or authority to assign said domicile under the allegations of said so-called reeonventional demand.”

[1] The issue is squarely presented in this case whether a reeonventional demand on the part of defendant for a separation on the ground of abandonment is admissible. This question was decided in the negative in the case of Estelle Bienvenu v. Her Husband, 14' La. Ann. 386. -In that case plaintiff sued for a separation a mensa et thoro on the grounds of cruel treatment and defamation. The court said in the Bienvenu Case:

> “Defendant demands a separation for abandonment by way of reconvention. A particular form of proceeding is required by-the Code, for obtaining a decree of separation on this ground. To that procedure, the defendant must have recourse for relief.

> ' “It is, therefore, adjudged and decreed that the judgment of the district court be' reversed; that the demands of plaintiff and (defendant be rejected, without prejudice to the right of defendant to proceed against plaintiff, in legal form, for abandonment of the conjugal domicile.

> “And it is lastly ordered that the costs of suit be equally borne by plaintiff and defendant, with the exception of that of appeal, which are to be paid by plaintiff.”

The Bienvenp Case was decided upon the merits, and the decision is by a unanimous court.

That decision holds, unmistakably, that a defendant cannot claim a separation in re-convention on' the ground of abandonment, for the reason that such procedure is ,not in proper “legal form,” as a “particular form of proceedings” is required by the Code.

Article 143 of the Code declares that—

> "Separation grounded on abandonment by one of the married persons can be admitted only in the case when he or she has withdrawn-himself or herself from the common dwelling without a lawful cause, has constantly refused to return to live with the other, and when such refusal is. made ,to appear in the manner hereafter directed.”

Article 145 of the Code provides that—■

> “The abandonment with'which-the husband or wife is charged must be made to appear by three reiterated summonses made to him or her from month to month, directing him or her to return to the place of the matrimonial domicile, and followed by a judgment which has sentenced him or her to comply with such request, together with a notification of the said judgment, given to him or her from month to month for three times successively.

> “The summons and notification shall be made to' him or her at the place of his or her usual residence, if he or she lives in this state, and, if -absent, at the place of the residence of the attorney who shall be appointed to him or her.by the judge for that purpose, at the suit of the husband or wife praying for separation from bed and board.”

i It is clear from the provisions of this article that the proceedings for separation from bed and board must be instituted by a direct action, against the defendant, that they are special statutory proceedings “in a particular form,” requiring the service upon the defendant of certain “reiterated summonses” and “notification isf judgment” sentencing the defendant to return to the matrimonial domicile. It is self-evident that a suit for separation, from bed and board can be brought in no other manner than that prescribed by the article of the Code, i. e., as a main demand in a direct action.

This article clearly excepts by implication reeonventional demands on the ground of abandonment from the general rule that suits for separation may be brought by way of reeonvention. Landreaux v. Landreaux, 114 La. 538, 38 So. 442; Nissen v. Farquhar, 121 La. 642, 46 So. 679.

[2] In addition to this, there are other sound reasons why reeonventional demands for separation on the ground of abandonment should not be allowed.

*801The general rule is that the main demand and that in reconvention should be disposed of at one and the same time.

[3, 4] If a defendant has the legal right to reconvene for a separation from bed and board on the ground of abandonment, then plaintiff can be compelled to wait for months, while he is being mulct in alimony, before he can demand a trial of the main action.

Moreover plaintiff can be embarrassed and hampered in the prosecution of the main demand, by being compelled either to return to the matrimonial domicile and abandon his suit, or to accede to the exaction of alimony by the defendant, to say nothing of the confusion of the issues in the case. We do not deem further discussion necessary, as the issue here involved has been set at rest in State v. Barilleau, 128 La. 1033, 55 So. 664, in which this court, in a unanimous decision, said:

> . “It is true that, in proceedings for separation from bed and board, or divorce, such a rule [for alimony] lies. Article 148 of the Civil Code. See, also, article 160.

> “The decisions cited infra clearly show that alimony is an incident' of a suit for separation from bed a¿nd board, or for divorce, in this, that it treats alimony exclusively as a right which may arise in such suits.

> “Erom these decisions, it cannot for a moment be inferred that alimony is also recoverable in a suit to annul the marriage. Hill v. Hill, 114 La. 44, 38 So. 14; State ex rel. Stuart v. Judge, 50 La. Ann. 559, 23 So. 445; State v. Seghers, 124 La. 115, 49 So. 998.”

The judgment appealed from is therefore set aside and reversed. If is now ordered that the exception of no cause of action filed by plaintiff be sustained, and that the reconventional demands of defendant for a separation from bed and board on the ground of abandonment and for alimony be dismissed at the cost of defendant. It is further ordered that this case be remanded to the lower court to be proceeded with on the trial of the issue as to the alleged nullity of the marriage between plaintiff and defendant; defendant to pay costs of appeal.

THOMPSON and ST. PAUL, JJ„ dissent.

O’NIELL, C. J.

(dissenting). I do not find any authority for the proposition that, in a suit to declare a marriage ceremony null, on the allegation of the plaintiff that his consent to the marriage was obtained by duress and fear, and that he has refused to live with the defendant, she is not allowed, by way of a petition in reconvention, to ask for a decree of separation from bed and board, on the ground of abandonment, and for alimony during the pendency of the suit. I concede that, in such case, the wife, must pray, in her demand in recbnvention, for service of the three reiterated summonses upon her husband, directing him to return to her or to receive her as his wife, as required by articles 143 to 145 of the Civil Code. That was the purport of the decision in Bienvenu v. Buisson, 14 La. Ann. 386. And that is the way that the defendant proceeded in this case. I concede also that the husband, as defendant in the reconventional demand, should not be compelled to answer the summons to return to his wife, or be served with the summons, until the court has decided whether the marriage is valid. If it should be decided that the marriage is not valid, the wife’s demand in reconvention, for a decree of separation from bed and board is, of course, unavailing. If it should be decided that the marriage is valid, then the wife is entitled to the service of the three reiterated summonses directing the husband to return to her.

To say that a man who has abandoned his wife,, and who refuses to live with her, may prevent her suing him for a decree of separation from bed and board, on the ground of abandonment, and for alimony during the pendency of the suit, by suing her first for an annulment of the marriage, is the same *803as to say that the marriage in ,such case is presumed to be null until it is proven to be valid.

If the wife, in this case, should bring an independent action against her husband for separation from bed and board, on the ground of abandonment, the husband’s defense would be that the marriage ceremony was obtained by duress and fear, and that the marriage should be annulled. The validity of the marriage, in such case, would have to be determined before the plaintiff could proceed with her suit for a decree of separation from bed and board, because a suit for divorce or for separation from bed and board is founded, essentially, upon the presumption that the marriage is valid. But the husband, in such case, could not, by merely pleading or alleging that the marriage contract should be annulled, put his wife’s suit for divorce or for separation from bed and board out of court, and deprive her of the right to alimony until it could be finally determined whether he had the right to have the marriage annulled.

If Mrs. Monteleone had sued her husband for separation from bed and board, before he sued her to have the marriage annulled, he would have had the right to demand, by way of reconvention in her suit, that the marriage should bfe annulled ab initio, instead of being dissolved by divorce. But the husband’s mere pleading that the marriage ghould be annulled, in such case, would not throw the wife’s suit out of court, and shut off her right to alimony.

The purport and effect of the decision rendered in this case is that a man who has abandoned his wife and refuses to live with her may prevent her suing him for a separation from bed and board, and for alimony, by suing her first, to have the marriage annulled. There is no reason why that should be the law.

Article 374 of the Code of Practice defines a reconventional demand as one which the defendant institutes in consequence of that which the plaintiff has brought against him. Article 375 declares that all that is necessary to entitle a defendant to institute a re-conventional demand in the suit against him is “that such demand, though different from the main action, be * * necessarily connected with and incidental to the same.” And article 377 declares that, whenever a defendant has such a demand against one who has sued him, he “may plead it either as an exception in his answer to the principal demand, or institute a distinct and separate demand before the court in which the main action is pending; and the original plaintiff shall be bound to, answer without pleading to the jurisdiction of the court, even if he has his domicile elsewhere, provided the court be competent.”

I cannot imagine a case where the two demands could be more closely connected and dependent upon, each other than they are here, where one party to the suit is demanding that the marriage be annulled and the other is demanding a divorce or separation from bed and board. In such case, both demands depend absolutely upon a decision of the one question, whether the husband’s consent to the marriage was given freely or under duress. If the consent was given freely, the marriage is valid and the wife has the right to proceed with her suit for separation from bed and board, by service of the summonses directing the husband to return to her. If his consent to the marriage was obtained by duress, he is entitled to an annulment of the marriage, and the wife’s demand for separation from bed and board fails.

It is said in the brief filed in support of Mrs. Monteleone’s application for rehearing in this case that an examination of the record in the suit of Bienvenu v. Buisson, in the archives of this court, discloses that the reconventional demand for a separation from bed and board, in that case, was not made upon the ground of abandonment, but upon *805the ground of public defamation. Be that as it may, the ruling was merely that the defendant’s reeonventional demand-supposing that it was on the ground of abandonment-—• was out of order, because the defendant had not proceeded according to the requirements of articles 143 and 145 of the Civil Code, by asking for the three reiterated summonses to be served upon the plaintiff, directing her to return to him. That is how the decision was construed in Ashton v. Grucker, 48 La. Ann. 1194, 1202, 20 So. 738, 741, where it was said:

> “In the Bienvenu Case defendant was evidently seeking to obtain a separation from bed and board on the ground of abandonment of the wife by direct proof of the abandonment administered on the trial, without having had recourse to the various summonses and orders to return, prescribed by the Code.”

In this case, Mrs. Monteleone did ask to have “recourse to the various summonses and orders to return, prescribed by the Code.”

In the Ashton Case, the husband sued for a separation from bed and board on the ground that his wife’s jealous disposition had made his living with her unbearable. In answer to the suit, she averred that the quarrels had been brought about by his improper attentions to another woman, and, assuming the position of plaintiff in reconvention, she prayed for a decree of separation from bed and board on the ground that her husband had abandoned her. The court found that her jealousy was justified by her husband’s improper attentions to the, other woman, and therefore rejected his demand for a decree of separation. In the meantime, the wife had had the three reiterated summonses served upon him, directing him to return to her. The question was whether the court should then give effect to the husband’s having failed to comply with the summonses, and give the wife a decree of separation from bed and board, on the ground of abandonment. The court declined to give effect to the summonses that had been served while the original or main demand was pending,- and declined to order new summonses to issue, because the quarrels that had occurred were not so serious, and because, as the court said, “every possible opportunity should be afforded the parties to reconcile their differences.” The question whether the defendant was entitled to alimony during the pendency of the suit was not decided, and .in fact was not an issue in the case. Here is what the court said of the reeonventional demand (page 1202 [20 So. 741]), viz.:

> “The various summonses to the husband to-return were made during the pendency of the present, suit, in support of the reeonventional demand. Our decision in this case being a rejection of plaintiff’s demand, carrying with it a conclusion that he was nfot warranted in withdrawing .from the matrimonial domicile, it may be claimed that we could and should now give effect to the summons made during the suit, or reject the plaintiff’s demand and leave the re-conventional demand standing for future summons. We have no right to say that plaintiff would not be willing, upon the rendition of this» judgment, to become reconciled to his wife and return to her. It would be against the policy of the law that he should find himself confronted by a judgment of separation from bed and board in favor of his wife on account of abandonment, based upon neglect or refusal to return upon the summons made when the propriety of his own course and the conduct of his wife was at the very time being made the subject of judicial investigation. We do not think he should be placed, finally, in default pending the litigation, but that the summons upon him should be made only after the termination of his own suit, leaving him free to act from that time forward. We think every possible opportunity should be afforded the parties to reconcile their differences on that ground, if no other; we would not be inclined, even if it were allowable, to permit the reeonventional demand to stand with a right to make new summons under it after plaintiff’s demand had been rejected.”

it is true that the court assumed, in the decision quoted, that a reeonventional demand for a decree of separation from bed and board on the ground of abandonment was not allowable in any case. But the assumption was not founded upon either au*807tliority or reason, and is not at all appropriate *to*this case, *where*the only question at issue is whether the marriage is valid, and where a decision of that question will, necessarily, either entitle the wife to proceed with her demand for a decree of separation from hed and board or forever end her suit.

The decisions cited in the majority opinion in this case, to the effect that the wife is not entitled to alimony during the pendency of a suit to annul the marriage, are not appropriate to (this ease, because, in the cases cited, there was no reconventional demand for a divorce or for a decree of separation from hed and board.

■ My opinion is that the defendant in this case, as plaintiff in reeonvention, is entitled to alimony for her support and for the support of her child during the pendency of the suit. s

On Rehearing.

BRUNOT, J.

Defendant’s motion for a rehearing directs our attention to the following alleged errors in our original decree, to wit: That the decree sustains plaintiff’s exception of no cause of action and dismisses defendant’s reconventional demand, although no exception was filed in the lower court to defendant’s reconventional demand; the issue raised by the reconventional demand was not there passed upon, and the sole issue on appeal was the question of alimony.

The exception sustained in our decree was plaintiff’s exception to the rule to show cause why he should not be condemned to pay alimony to the defendant.

We held that alimony was an incident to a suit for divorce or separation from bed and board, and, being incidental to defendant’s reconventional demand for a separation on the ground of abandonment, it became essentially necessary to determine whether a reconventional demand for separation could be properly pleaded in a suit to annul the 'marriage upon the ground of duress and coercion. We held that defendant’s reeonventional demand was not, incidental to but independent of the main demand, and it was therefore improperly pleaded in 'the .case. This conclusion resulted in our sustaining the exception of no cause of action to the rule to show cause why alimony should not he paid to the defendant. Our conclusions were reached after most serious consideration.

We recognize the force of counsel’s reasoning with reference to the Bienvenu Case; 14 La. Ann. 386, and Ashton Case, 48 La. Ann. 1194, 20 So. 738, and while the opinion of the court in the Bienvenu Case upon the question now before us, may be regarded as obiter dictum, it is nevertheless the expression of good law which has special application to the issues involved in this case.

For these reasons our original opinion and decree herein are reinstated and made the final judgment of the court.

THOMPSON, .1., dissents.

O’NIELL, O. J., adheres to his dissenting opinion.