Cignoni v. Cignoni

PROVO STY, J. The plaintiff asks that her husband be required to pay her alimony pending her suit in separation from bed and board. She owns four paid-up shares of stock in a homestead association of $100 each, which yield a revenue of $32 per annum, and 10 shares in another association which yield no revenue, because of arrears in dues, but which have a withdrawal value of $341. This property, defendant contends, should first be exhausted by her before she can call upon him for support, as, until then, she could not be said to be in necessitous circumstances. He has an income of $250 a month. The trial court allowed $50 a month, and defendant has appealed. The law of the case is article 148, C. O., which reads: “If the wife has not a sufficient income for her maintenance during the suit for separation, the judge shall allow her a sum for her support, proportioned to the means of her husband. “The husband cannot be compelled to pay this allowance, unless the wife proves that she has constantly resided in the house appointed by the judge.” [1] The wife is not bound to impinge upon her capital for her expenses while her husband is living out of his income. Learned counsel suggest the case of a wife possessed of means which are large but which for some reason or other yield, for the time being, no revenue. Such a case is not presented here. It will be considered when presented. [2] It being desirable that the plaintiff should no longer stay at the domicile assigned her by the judge, her counsel advised her that he would obtain an order of court assigning another domicile, and that in the meantime she could go on and move to this [982] ■other domicile. She did so; but, through the inadvertence of counsel, the order for the change of domicile was not made until ten days later. This abandoning of the assigned domicile, the husband contends relieves him from the obligation of the alimony. No doubt, he could not be made to pay for the ten days' during which the wife had abandoned the domicile assigned to her; but we can see no good reason why his obligation should not have revived as an effect of the assignment of a new domicile and her occupying it. There is nothing contrary to this in the cases of Carroll v. Carroll, 48 La. Ann. 835, 19 South. 872, and Jolly v. Weber. 36 La. Ann. 678, and eases there cited. Whether a wife could under any circumstance, by abandoning the domicile assigned her by the judge, forfeit permanently her right to alimony, in such way that the right would not revive at her return to the assigned domicile, or by the assignment of another domicile, is a question which need not be considered in this case, as the intentions of the wife in this case were good, and she was at fault only technically. [3] The trial court fixed the alimony at $50 a month; one-fifth of the revenue of the husband. Entirely reasonable, in our opinion. Judgment affirmed, at the cost of appellant.