B. Alimony
In Allen v. Allen,27 the Supreme Court of Louisiana resolved the lacuna left by repeal of the former fault grounds for legal separation, clarifying what type of fault will now suffice to preclude a needy spouse from receiving permanent alimony. Jurisprudence had held that only fault amounting to grounds for legal separation or divorce would suffice for purposes of alimony preclusion. With repeal of Article 13828 and abolition of legal separation, the only fault grounds for divorce remaining in Louisiana are alimony or felony conviction.
A clarification was needed to determine whether conduct such as habitual intemperance or public defamation (which would have been grounds for separation under the now-repealed article) still suffices for alimony preclusion. The court answered in the affirmative and declared that legal fault for purposes of alimony preclusion must be judged according to that conduct which sufficed for alimony preclusion under the prior jurisprudence, notwithstanding that such conduct is no longer grounds for separation per se. The court clearly states that Lagars v. Lagars,29 and other alimony preclusion cases are still law. However, an alimony claimant is not required to be blameless; mere disagreements and differences of opinion do not rise to the threshold of preclusion.
In Wheelahan v. Wheelahan,30 the Fourth Circuit overruled its own prior dicta to the contrary and held that a definitive judgment of divorce terminates alimony pendente lite, even though the issue of fault is still viable on appeal. The appellate court held that the obligation of one spouse to support the other continues only until the marriage terminates. In Cassidy v. Cassidy,31 the Supreme Court of Louisiana held that where the divorce judgment itself is appealed, the marriage continues during the appeal and so does the obligation of care and support. But where the divorce itself is not appealed, the Fourth Circuit has now held that a trial court is without discretion to extend alimony pendente lite beyond the existence of the marriage. Thus, it overruled dicta to the contrary in Olson v. Olson,32 and Martinez v. Martinez.33 Judge Armstrong dissented.
C. Child support
In Park v. Park,34 the First Circuit held that a child between the ages of eighteen and nineteen who is a full-time student attending a vocational/technical school to obtain a high school equivalency diploma is a student in a "secondary school" within the meaning of Louisiana Revised Statutes 9:309(C) (now 9:315.22(C)),35 so as to justify continued, post-majority child support.
In Hernandez v. Hernandez,36 the Third Circuit holds that the ability of parties to waive or modify court-ordered child support by oral agreement includes the ability of the parties to agree orally to an increase as well as a decrease in support. For such an agreement to be enforceable, the parties must clearly agree to the modification. The burden is on the party claiming the modification to prove its existence.
In Blackburn v. Blackburn,37 the Fifth Circuit held that a showing of changed circumstances is not necessary to modify an award of child support made in a prior consent judgment but not in accord with the guidelines. While a trial court is under no affirmative duty to review all decrees between the parties to determine if support is in accord with the guidelines, the trial court has discretion to do so in any proceeding to establish or modify support.
D. Paternity and Filiation
In Department of Social Services v. Norris,38 the Second Circuit Court of Appeal held that the mother's husband at the time of a child's birth is an indispensable party in any action to determine paternity. In this case, the Department sued Norris to establish paternity. DNA testing failed to exclude Norris; however, the mother's legal husband at the time, Smalling, was never tested. The hearing officer and the district court declared Norris to be the father. The appellate court, on its own motion, noted that Smalling was a presumed father and that Smalling now had joint legal custody, visitation rights and a relationship with the child. In a case superficially reminiscent of Michael H. v. Gerald D.,39 the Second Circuit reversed the finding that Norris was the father and remanded for joinder of the mother's legal husband at the time of the child's birth.
In Ebey v. Harvill,40 decided the same day as the Norris case, the Second Circuit held that an award of child support to the mother against the man who was her husband at the time of the child's birth is not res judicata as to the paternity issue, at least where paternity was never litigated but was simply assumed in the divorce. The mother, therefore, is not precluded from bringing a paternity action against her paramour to establish paternity and obtain support, but the husband at the time of the child's birth is an indispensable party in any action to determine paternity.
E. Stepparent adoption
In the case of In re C.B. Applying for Adoption,
41the Supreme Court of Louisiana held that the relaxed standards for stepparent adoptions embodied in the Louisiana Children's Code article 1255(B) are not so relaxed as to permit application of a presumption that a stepparent adoption is in the child's best interests where the spouse of the petitioning stepparent has joint, as opposed to sole, custody. The court confronted the meaning of the term "custody" in article 1255(B), which provides: "[w]hen a court has granted custody to either the child's grandparents or his parent married to the stepparent petitioner, there shall be a rebuttable presumption that this adoption is in the best interests of the child." The court narrowly construed the term "custody" to mean sole custody. Stepparent adoptions remain available to spouses of joint custodians under the criteria of article 1245,42 but without the benefit of the statutory presumption.
F. Article 102 Divorce Jurisdiction
In Johnson v. Johnson,43 the First Circuit held that service of the rule to show cause that is filed in an Article 10244 divorce (after 180 days have elapsed from service of the initial petition) must be by the sheriff. Service by mail is insufficient. The rule must be served by the sheriff on the defendant or defense counsel. Noncompliance renders the divorce an absolute nullity.
G. Community Property
In Krielow v. Krielow,45 the Supreme Court of Louisiana confronted the burden of proof needed to show that uncompensated or undercompensated labor performed by a spouse on his separate property increased the value of that property within the meaning of Louisiana Civil Code article 2368.46 According to the court, the claimant spouse must first prove that community labor was expended on separate property. Then, the burden shifts to the other spouse. Once a claimant has shown that the increase in separate property is even partially due to under-compensated labor of the other spouse, the claimant is entitled to half the enhanced value or the value of the uncompensated labor, whichever is higher.
In Futch v. Futch,47 the Second Circuit determined that renewal commissions from insurance policies written by a spouse during the marriage are community. However, the agent-spouse is entitled to deduct from the gross renewal commissions an amount representative of his individual efforts and investments post-termination in producing these commissions. It is the agent-spouse's burden to establish his entitlement to more than half of the renewal commissions based on his post-termination efforts or achievements.
The appellate court reversed the trial court for having awarded the wife equal to half of what the husband would have received from the insurance company had he resigned or been terminated on the date the community ended. The appellate court further directed the trial court to require the husband to file an annual accounting of renewal commissions received on policies written during the marriage. This holding differs from that of the Third Circuit in Williams v. Williams,48 holding post-community renewal commissions on policies sold during the community to be the separate property of the agent-spouse.
In Meche v. Meche,49 the Third Circuit held that four requirements must be met to prevent application of Louisiana's community property laws to military retirement benefits: (1) there must be a decree of divorce, dissolution, annulment or legal separation; (2) the decree must have been issued before June 25, 1981; (3) the decree must be final; and (4) the decree must include a court-ordered, ratified or approved property settlement that does not treat or reserve jurisdiction to treat any amount of retired pay as community property. The parties in the case sub judice had confected a property settlement, but it did not deal with military retirement pay not yet accrued, nor was this settlement court approved. The court of appeal held that since the settlement at the time of the pre-McCarty divorce was not court approved, the court could now treat military retirement benefits as community property.
H. Domestic Abuse
In State in the Interest of A.C.,50 the Supreme Court of Louisiana held the Family Violence Relief Act, Louisiana Revised Statutes 9:361-369,51 unconstitutional. Section 9:346(D) of that act required that whenever a court found by a mere preponderance that a parent sexually abused a child, all visitation and contact between the parent and child must be prohibited until such time as the court determined that the parent, among other things, had completed a treatment program. The Supreme Court held that considerations of due process require that judicial decisions that will irreparably destroy family relationships be based on better than fifty-one percent evidence. The statute is defective in not requiring at least clear and convincing evidence. Justice Dennis assigned additional reasons, suggesting in dicta that the statute is also unconstitutional for failure to define "sexual abuse," for failure to require adequate notice be given and for failure to use the least restrictive means to redress the abuse.52
In State v. Taylor,53 the Supreme Court of Louisiana held that a trial court in its discretion, based upon a preponderance finding, may deny use of the spousal witness privilege where the spouse asserting the privilege is more probably than not acting under fear, threats or coercion. The court also held that the trial court may deny the privilege where the marriage itself is a sham confected for the purpose of availing the privilege of Code of Evidence article 505.54 The court, however, declined to adopt a blanket "victim spouse" exception to the privilege. The case has the potential for becoming a slippery slope for the eventual erosion of privileges initially conceived to promote family stability.
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1638 So.2d 711 (La. App. 3d Cir. 1994).
2639 So.2d 399 (La. App. 2d Cir. 1994).
3Saussy, 638 So.2d at 714.
4For the connection between the breakup of families and the breakdown of society, see Barbara Dafoe Whitehead, Dan Quayle Was Right, 271 Atlantic Monthly 47 (April 1993).
5631 So.2d 42 (La. App. 2d Cir. 1994).
6La. Rev. Stat. Ann. § 9:315.14 (West 1991 & Supp. 1995).
7La. Rev. Stat. Ann. § 9:335(2)(b) (West 1991 & Supp. 1995).
8638 So.2d 1176 (La. App. 1st Cir. 1994).
9Such gratuitous references in the jurisprudence are perhaps unfortunate. A more enlightened approach regards the inability to communicate as a factor not to be assessed in the emotional heat of divorce; see Beck v. Beck, 432 A.2d 63, 72 (1981). An even better approach would be to recognize that a parent who by her or his uncommunicativeness or obduracy makes joint custody unworkable is acting detrimentally to the best interests of the child within the meaning of Civil Code Article 134(10), and to award sole custody to the other parent.
10La. Rev. Stat. Ann. § 9:315/15 (West 1991).
11639 So.2d 399 (La. App. 2d Cir. 1994).
12637 So.2d 1163 (La. App. 4th Cir. 1994), aff'd, No. 94C1594, 1995 WL 71495 (La. Feb. 9, 1995).
13McAlpine, 1995 WL 71495 at *4.
14329 S.E.2d 106 (W.Va. 1985).
15Id. at 112.
16See, e.g., Lebeck v. Lebeck, 881 P.2d 727 (N.M. 1994); Simeone v. Simeone, 581 A.2d 162 (Pa. 1990); Rinvelt v. Rinvelt, 475 N.W.2d 478 (Mich. App. 1991). See also Berman v. Berman, 749 P.2d 1271 (Utah App. 1988); Huck v. Huck, 734 P.2d 417 (Utah 1986); Scherer v. Scherer, 292 S.E.2d 662 (1982). For additional cases, see Doris J. Freed & Timothy B. Walker, Family Law in the Fifty States: An Overview, 19 Fam. Law. Q. 331, 438 (1985-86). The single significant contrary decision of recent vintage is Kahn v. Kahn, 756 S.W.2d 685 (Tenn. 1988).
17637 So.2d 607 (La. App. 2d Cir. 1994).
18Id. at 610.
19631 So.2d 45 (La. App. 2d Cir. 1994).
20647 So.2d 1362 (La. App. 3d Cir. 1994).
21640 So.2d 686 (La. App. 3d Cir. 1994).
22602 So.2d 287 (La. App. 2d Cir. 1992).
23640 So.2d 691 (La. App. 3d Cir. 1994).
24Id. at 692.
25634 So.2d 31 (La. App. 1st Cir. 1994).
26492 So.2d 1193 (La. 1986).
27648 So.2d 359 (La. 1994).
28La. Civ. Code Ann. Art. 138 (West 1995), repealed by 1990 La. Acts No. 1009.
29491 So.2d 5 (La. 1986).
30644 So.2d 1125 (La. App. 4th Cir. 1994).
31477 So.2d 84 (La. 1985).
32519 So.2d 828 (La. App. 4th Cir. 1988).
33503 So.2d 544 (La. App. 4th Cir. 1987).
34634 So.2d 83 (La. App. 1st Cir. 1994).
35La. Rev. Stat. Ann. § 9:315.22(C) (West 1991 & Supp. 1995).
36640 So.2d 818 (La. App. 3d Cir. 1994).
37638 So.2d 252 (La. App. 5th Cir.), writ denied, 642 So.2d 1300 (La. 1994).
38648 So.2d 9 (La. App. 2d Cir. 1994).
39491 U.S. 110 (1989).
40647 So.2d 461 (La. App. 2d Cir. 1994).
41643 So.2d 1251 (La. 1994).
42La. Civ. Code Ann. Art. 1245 (West 1995).
43645 So.2d 1260 (La. App. 1st Cir. 1994).
44La. Civ. Code Ann. Art. 102 (West 1995).
45635 So.2d 180 (La. 1994).
46La. Civ. Code Ann. Art. 2368 (West 1995) provides:
If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of the spouses, the other spouse is entitled to be reimbursed from the spouse whose property has increased in value one-half of the
increase attributed to the common labor.
47643 So.2d 364 (La. App. 2d Cir. 1994).
48590 So.2d 649 (La. App. 3d Cir. 1991).
49635 So.2d 614 (La. App. 3d Cir. 1994).
50643 So.2d 743 (La. 1994).
51La. Rev. Stat. Ann. §§ 9:361-69 (West 1991 & Supp. 1995).
52Id. at 750 (Dennis, J., assigning additional reasons).
53642 So.2d 160 (La. 1994).
54La. Code Evid. Ann. Art. 505 (West 1995) provides:
"In a criminal case or in commitment or interdiction proceedings, a witness spouse has a privilege not to testify against the other spouse. This privilege terminates upon the annulment of the marriage, legal separation, or divorce of the
spouses."
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