211 La. 585

#### KEENEY v. KEENEY.

No. 38010.

Supreme Court of Louisiana.

April 21, 1947.

Hargrove, Van Hook and Hargrove, of Shreveport, for defendant-appellant.

Bush, Stephens & Allen, of Shreveport, for plaintiff-appellee.

HAWTHORNE, Justice.

The single question presented for determination in this cause is whether a bigamous marriage is a marriage within the meaning, intendment, and contemplation of that provision of the Civil Code which recites that the alimony recoverable under such article shall be “revocable * * * in case the wife should contract a second marriage”. (Article 160.)

The factual situation giving rise to the litigation as disclosed by the record, which includes an agreed stipulation of counsel, is as follows: • Plaintiff, Mrs. Virgil O. (Thelma A.) Keeney, was married to defendant, Virgil O. Keeney, on December 14, 1920. Some 20 years thereafter, on January 9, 1941, she instituted suit against him in the First Judicial District Court of Caddo Parish seeking a decree of separation from bed and board on grounds of abandonment, and an award of alimony pendente lite of $100 per month. Judgment was rendered on January 23, 1941, in ac-cordánce with the prayer of her petition.

After a year had passed, plaintiff, through regular proceedings in the same! suit, obtained a judgment dated February 10, 1942, granting to her a decree of divorce, and ordering and commanding defendant to pay to plaintiff the sum of $50 per month “as alimony until such time as she remarries”.

Five days later, on February 15, 1942, pursuant to a marriage license duly issued, one N. S. Allison and plaintiff were pronounced husband and wife in a marriage ceremony performed in Bossier Parish, Louisiana, by a justice of the peace. When that occurred, Virgil O. Keeney, who had hitherto made all alimony payments due by him, discontinued paying alimony to plaintiff.

On November 28, 1944, plaintiff filed suit in the First Judicial District Court of Caddo Parish against N. S. Allison, who was represented by a curator ad hoc, alleging that they had lived together in Caddo Parish • *550from the date of the mentioned marriage ceremony until January, 1944, at which time they separated and he moved to the State of California; that, when this ceremony was performed, N. S. Allison was married to one Daisy Eunice Tate, and was still married to her; that plaintiff learned of that fact after separating from N. S. Allison. The court on December 13, 1944, in confirming a preliminary default, rendered judgment decreeing the marriage between Thelma A. Keeney, plaintiff herein, and N. S. Allison performed on February IS, 1942, in Bossier Parish “to be a bigamous marriage, null, void and of no effect”.

On March 28, 1945, plaintiff filed a petition in the cause in which her divorce from defendant was granted, alleging that on February 10, 1942, a judgment was rendered therein against defendant Keeney awarding her permanent alimony in the sum of $50 per month. She further alleged “that said alimony has been paid by the defendant herein or discharged through and including the 10th day of December, 1944, and there is now past due alimony of the sum of One Hundred Fifty ($150.00) Dollars through March 10th, 1945, and the defendant herein has refused to pay same”. She prayed that the clerk of court be ordered to issue a writ of fieri facias in the sum of $150 in execution of the judgment.

The writ issued, and thereunder Harry I. Morgan, employer of defendant, was made garnishee. The garnishee answered the interrogatories propounded to him and acknowledged an indebtedness to defendant. At about the same time defendant filed a motion praying that the writ of fieri facias be recalled, that the garnishment proceedings be dismissed, and that there be judgment in his favor and against plaintiff, decreeing that no further alimony was due under the terms of the judgment rendered on February 10, 1942. Supporting the prayer was his allegation that the judgment ordered him to pay alimony until plaintiff remarried, and, that plaintiff married N. S. Allison on February 15, 1942, at which time defendant discontinued paying alimony to her.

•A trial was had on the issues created by the pleadings in the garnishment proceedings, and there was judgment in favor of plaintiff and against the defendant and the garnishee. From this judgment defendant is appealing.

Defendant, in seeking to avoid the payments ordered by the judgment in the divorce proceedings, failed to offer any evidence at the trial to show that alimony is no longer needed by plaintiff. His position herein is merely that the obligation to pay alimony was forever ended when plaintiff participated in the marriage ceremony with N. S. Allison, even though the marriage was invalid. It is his contention that the word “marriage” as used in Article 160 of the Revised Civil Code, in providing that the alimony shall' be “revocable * * * in case the wife should contract a second marriage”, refers only to the ceremony of marriage and not to the status or relationship created by it. This interpretation of the word “marriage” in that article, defense counsel argue, is required by: (1) The provisions of the Revised Civil Code and the jurisprudence, and (2) the fact that a contrary conclusion would lead to absurd consequences which would not have been within the intention of the lawmakers.

Plaintiff, on the other hand, contends that the obvious theory of the words “contract a second marriage” found in Article 160 is that the first husband’s duty to support his divorced wife may be terminated when a second husband becomes legally bound to support the same wife by virtue of a second valid marriage, and that therefore, in determining whether or not a second marriage, which is void, operates to. release the first husband from the obligation to pay alimony, we must determine whether the second marriage gives rise to the obligation of support. Counsel say that, under the well established law of Louisiana, the defense of nullity of the marriage is a valid one in a criminal proceeding against the husband for non-support, and likewise say that under the jurisprudence there is no obligation upon the husband to support the wife of a void marriage after its termination. Counsel urge in conclusion that, since the second marriage in the instant case was a void one and gave rise to no obligation to support, the husband of the first marriage was not released by this *551second marriage from the obligation to pay the wife alimony.

The pertinent part of Article 160 of the Revised Civil Code, which provides for the payment of alimony to the wife who has obtained a divorce, reads:

> “This alimony shall be revocable in case it should become unnecessary, and *in case the wife should contract a second marriage.”*(Italics ours.)

There certainly is no obligation on the part of Mr. Keeney to support Mrs. Keeney flowing from his marriage with her, since that marriage has been terminated by an absolute divorce, and under our jurisprudence, if she is entitled to support, it is in the nature of a pension — all of which was pointed out in the cáse of State ex rel. Hill v. Judge of Civil District Court for Parish of Orleans, 114 La. 44, 38 So. 14, 15, as follows: “On the other hand, after the judgment of divorce has been rendered, there can be no reconciliation, reinstating the dissolved marriage. There is no obligation arising from the marriage, as it is forever dissolved. There is an exception for alimony — rather, support— the law accords not alimony, but a pension, to the unfortunate spouse who obtained the divorce. There can be no judgment for support if the plaintiff fails to sustain his demand for divorce.”

In Player v. Player, 162 La. 229, 110 So. 332, 333, this Court said:

> “As the marriage is forever dissolved, there is no obligation arising from it. The law .accords, not alimony in such a case, but a pension, to the unfortunate spouse who has obtained the divorce. This pension becomes revocable in case it should become unnecessary, and in case the wife should contract a second marriage. * * * ”

Since there is no obligation to support plaintiff, Mrs. Keeney, flowing from the first marriage, and since the alimony awarded to her at the time she was divorced from her first husband is in the nature of a pension, we are of the opinion that, when she contracted a second marriage with N. S. Allison, she waived or forfeited all of her rights to collect alimony from Virgil O. Keeney, her divorced husband, and, having so forfeited her rights to alimony by entering into a second marriage, she is bound thereby and cannot now be heard to complain.

We are convinced that the lawmakers in drafting Article 160 of the Civil Code intended that the phrase “This alimony shall be revocable * * * in case the wife should contract a second marriage” should refer to the ceremony of. marriage and not to the status or relationship created by it. It is true that in' this case plaintiff’s bigamous marriage to Allison was an absolute nullity, but, to hold that the word “marriage”, as used in the article of the Code in providing that alimony shall be revocable if the wife should contract a second marriage, means or refers only to a valid second marriage or to the status of marriage, in our opinion, would produce absurd consequences which could not have been within the intention of the drafters of the Code. For example, a wife awarded alimony from her divorced husband could contract a second bigamous marriage in bad faith and at her convenience and pleasure have the second marriage declared a nullity and invalid, and then force her first husband to resume the payment of alimony if she did not have sufficient means for her maintenance. In the very case here under consideration, although plaintiff did not demand alimony for the period from the celebration of her marriage to N. S. Allison to its annulment, if the argument of plaintiff’s counsel that the first husband is liable for her support because no duty to support flows from the putative marriage is carried to its logical conclusion, she would be entitled to alimony for the period during which she had lived with Allison. Such a conclusion in our opinion would be repugnant to public policy and good morals.

To hold that the divorced husband’s obligation to pay alimony was terminated only by a subsequent valid marriage on the part of the divorced wife, or by the status of the second marriage, would place the divorced husband in the position of not knowing, nor could he know, in such case when .his obligation to pay such alimony terminated because it might subsequently *552be decreed many years later that the wife’s second marriage was invalid. For, in the event the second marriage were invalid, under such holding the first husband could then be required to resume the payment of alimony provided his divorced wife did not have sufficient means for her maintenance.

In such case, even after the wife has remarried, the divorced husband could never know what part of his income would continue to be available to support himself and a second wife, if he should desire to remarry, and any children born as issue of the marriage. The very uncertainty of the husband’s position which would result from such a holding would, to say the least, in many cases prove an obstacle to his contracting a second marriage with any other woman. Certainly a holding which thus discourages marriage, the founding of a home, and the rearing of a family would be contrary to public policy and would strike at the very foundations of our social and economic life.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that the writ of fieri facias issued herein be recalled and the garnishment proceeding against Harry I. Morgan be dismissed, and that there be judgment in favor of defendant-appellant, Virgil O. Keeney, and against plaintiff-appellee, Mrs. Virgil O. Keeney, decreeing that no further alimony is due under the terms of the judgment awarding such alimony rendered by the First Judicial District Court on Feb- ■ ruary 10, 1942; appellee to pay all costs of these proceedings.

HAMITER, Justice

(dissenting).

An award of alimony under Civil Code Article 160 is revocable, according to the provisions of the same article, only (1) when'it becomes unnecessary and (2) in case the wife should contract a second marriage.

In this case the defendant Keeney does not contend, and he offered no evidence to show, that alimony is no longer needed by Mrs. Keeney. Therefore, her alimony award against him of $50 per month, made at the time she obtained the divorce, has not been revoked unless her bigamous, void marriage with Allison, admittedly contracted in good faith, is of the kind contemplated by the provision, “in case the wife should contract a second marriage.”

Admittedly, as pointed out in the majority opinion, to affirm the holding of the district court, that the obligation of a divorced husband to pay alimony is terminated only by a valid second marriage on the part of his wife, will in some instances result in a financial burden to the husband. But the question of whether or not the resulting of such a situation would be harmful to our social and economic life, and therefore con-, trary to public policy, is one which addresses itself to the sound discretion of the Legislature, not to the judiciary. Our duty here is to determine merely if the lawmakers intended both a valid marriage and a bigamous marriage by the clause, in Civil Code Article 160, “in case the wife should contract a second marriage.”

A bigamous marriage, such as Mrs. Keen-ey entered into with Allison in good faith, is not of the kind that is merely annullable and, 'hence, subject to ratification by the parties thereto; it is an absolute nullity. This is clearly shown in Summerlin et al. v. Livingston et al., 15 La.Ann. 519 (cited and quoted from approvingly in Prieto et al. v. Succession of Prieto, 165 La. 710, 115 So. 911), the court therein commenting:

> “ ‘Persons legally married are, until a dissolution of marriage, incapable of contracting another, under the penalties established by the laws of this State.’ C.C. 94 [93 in Code of 1870], The nullity of such a contract, is absolute; as it contravenes the policy of the law, and, besides, subjects the guilty party to a criminal prosecution. Such nullities are not even susceptible of Confirmation or ratification, whether express or implied. C.C. 115, 2252. Nor is it necessary that a direct action be instituted for the purpose of setting aside the contract : its nullity may be demanded by way of exception or defense. * * *.

> * H= * * * * *

> “ * * * No doubt, the parties entered into the bonds of matrimony; but if one of them was at the time incapacitated by a previous marriage, the second contract, al*553though clothed with the forms of law, was radically null and void. It is true, that such a contract may produce civil effects; but this takes place by special provision of law, and only in favor of the the party who acted in good faith, and in favor of the children born of the marriage. C.C 120. But even then the contract itself has, in other respects, no vitality; and, in legal parlance, the parties have never been'married.” (Brackets ours).

In the light of these expressions can it be.correctly said that the codal provision, “contract a second marriage”, includes an absolutely void ceremony and marriage, no marriage at all, a bigamous marriage? I think not. In enacting provisions of this kind the lawmakers have in mind valid transactions; when intending void undertakings, they so declare. Thus, if the intention here had been that the provision should relate both to a valid and an absolutely void marriage, undoubtedly the Legislature would have said “ * * * in case the wife should contract a second marriage, whether it be valid or invalid”.

By placing on the clause in question the construction that the award of alimony is terminated whenever the divorced wife enters into a subsequent bigamous marriage, we must also hold, on the appropriate case coming before us, that the usufruct of a surviving sponse in community terminates by his or her entering into a similar void marriage. A provision substantially identical as the one here is found in Civil Code Article 916, it reading: “This usufruct shall cease, however, whenever the surviv- or shall enter into a second marriage.”

The law providing for the payment of alimony in this state is found in Civil Code Articles 148 and 160. The first of these relates to alimony pendente lite, or support money during the pendency of a suit for separation from bed and board or divorce. The second deals with alimony following the rendition of a judgment of divorce. Unless there has been instituted such a suit, the wife has no right of action against the husband for either kind; the claim for alimony is incidental to a proceeding of that nature, is accessory to it, and is inseparable from it. Carroll v. Carroll, 42 La.Ann. 1071, 8 So. 400.

Until a judgment of divorce is rendered, the alimony recoverable is that provided by Civil Code Article 148. Such alimony, the marriage being yet undissolved, has as its basis the husband’s obligation announced by Civil Code Article 120 of furnishing his wife with whatever is required for the convenience of life, in proportion to his means and condition. On the rendition of the divorce decree the duty to support imposed by that codal provision ceases.

However, under another provision of law (Civil Code Article 160), obviously adopted to prevent the divorced wife from becoming a charge on society, the husband may be required, at the discretion of the court, to furnish his divorced wife with support (or alimony or a pension or an allowance) out of his property and earnings, to the extent of not more than one-third of his income, if she has obtained the divorce and has not sufficient means for her maintenance. This support, if ordered by the court, is revocable in two cases: (1) when it becomes unnecessary and (2) when the wife contracts a second marriage.

Since the obligation imposed by Civil Code Article 160 on the divorced husband to pay alimony to the wife is conditioned on her not having sufficient means for her maintenance, clearly both of the revocation cases, set forth in the article, contemplate situations where she becomes no longer in need of his assistance. In so many words the first declares just that. The theory of the other case, in my opinion, is that on the wife’s contracting a second valid marriage the new husband assumes the- duty, and becomes legally bound, to maintain her, in which event she is considered, in the eyes of the law, no longer in need of the support of the divorced husband. Should the second venture be bigamous (such as the one Mrs. Keeney participated in), however, there is and can be no effective contract between the participants and, hence, no valid assumption of the divorced husband’s obligation to support.

If the plaintiff herein is in need of support (nothing in the record discloses that *554she is not), she should be entitled .to recover alimony, either from defendant or from her bigamous- husband, Allison. She has no right or cause of action against Allison, however, unless it be to recover damages flowing from the fraud and deception that he practiced on her, for the law imposes no obligation whatever on either spouse in a void marriage, the evident reason for this being that there is. no valid ceremony, no contract, no marriage at all. Moreover, this court has held in several instances that alimony is not recoverable in a suit to annul a marriage; it is exclusively a right which may arise in a suit for separation from bed and board or divorce, a remedy for dissolving a valid marriage. State v. Barilleau, 128 La. 1033, 55 So. 664, Monteleone v. O’Hanlon, 159 La. 796, 106 So. 308.

• In the majority opinion it is said that to interpret the phrase “contract a second marriage” (of Civil Code Article 160) as meaning only a valid second marriage would produce absurd consequences, and to support the statement two examples are offered. The first is that “a wife awarded alimony from her divorced husband could contract a second bigamous marriage in bad faith and at her convenience and pleasure have the second marriage declared a nullity and invalid, and then force her first husband to resume the payment of alimony if she did not have sufficient means for her maintenance.” My answer to this is that the awarding of alimony to a divorced wife is within the discretion of the court, as Civil Code Article 160 specifically declares, and whenever it appears that she was in bad faith in entering into a bigamous second marriage her claim for the alimony should, and no doubt would, be denied by the judge. The second example given in the majority opinion, in support of the statement regarding absurd consequences, is that Mrs. Keeney, in the case under consideration, would be entitled to alimony for the period during which she lived with Allison, although she does not demand it. Mrs. Keen-ey, in my opinion, would not be entitled to alimony for that period. In the first place she is judicially estopped by the allegation of her petition that “said alimony has been paid by the defendant herein or discharged through and including the 10th day of December, 1944.” (The date mentioned is that on which she obtained judgment annulling her bigamous marriage.) In the second place she has legally waived all of her rights to alimony for that period by having accepted the support of Allison and also by having failed to protest Keeney’s non-payment of alimony under her judgment.

There can be' no doubt that while his divorced wife was living with, and being supported by Allison, the defendant could have obtained, through appropriate proceedings, the annulment of the alimony judgment standing against him on the ground that his support of her was not then necessary. But he made no effort to do this. Rather, he permitted the judgment to remain in full force and effect until the instant proceeding was commenced, at which time he assumed only the legal position (now relied on) that his wife’s bigamous marriage revoked the alimony award.

Mrs. Keeney, it is true, lived with Allison for almost two years; but that period of time, during all of which she was in good faith and believed that he was her lawful husband, is of no importance here. Under the majority holding herein, her claim for alimony against this defendant would be' without merit even if her bigamous marriage with Allison had been judicially declared a nullity on the same day that it was performed.

“Persons legally married are, until a dissolution of marriage, incapable of contracting another * * Civil Code Article 93. Allison was so incapacitated at the time of the performance of the void ceremony in question, and because of that condition Mrs. Keeney could not and did not “contract a second marriage” within the intendment and contemplation of Civil Code Article 160.

I respectfully dissent.