Loyacano v. Loyacano - 358 So. 2d 304 (La. 1978)

Rule:

"Means," for the purpose of awarding alimony under La. Civ. Code Ann. art. 160, includes both income and property, and "maintenance" consists primarily of food, shelter and clothing. The wife need not be practically destitute to qualify for alimony, but that she can apply if she has some means which are not sufficient. A wife with property should not be made to fully deplete her capital before she is allowed alimony.

Facts:

In 1971, Neila LeBlanc Loyacano (wife) was granted a divorce from her husband, Dr. Eugene Loyacano (husband), on the grounds of living separate and apart for two years pursuant to Louisiana Revised Statute 9:301. The default divorce judgment provided wife with $ 1,000 per month alimony and $ 1,000 per month for the support of their two minor children. Husband voluntarily supplemented these payments with extra sums which were discontinued upon his remarriage in February of 1974. Wife filed a rule to increase both the alimony and child support awards in May of 1974. Following an involved procedural history, during which husband filed rules to reduce the child support award and reduce or revoke the alimony, hearings were held on the respective rules in October of 1975. Child support was awarded in the amount of $ 500 per month per child and the alimony was reduced to $ 300 per month. Both parties appealed to the court of appeal, with the husband arguing that La. Civ. Code Ann. art. 160, pursuant to which alimony could be awarded to a wife, but not a husband, was unconstitutional. The child support award was affirmed but the $ 300 per month alimony award was revoked on the ground that wife’s circumstances no longer warranted the alimony. A writ of certiorari was granted. 

Issue:

1. Was the award of alimony limited only to wives? 
2. Under the circumstances, was it proper to revoke the award of alimony to plaintiff wife?

Answer:

1) No. 2) No.

Conclusion:

In reversing the judgment, the court first held that if alimony was limited to wives, art. 160 would violate La. Const. art. I, § 3 (1974). The court held, however, that a husband could be entitled to alimony where the same circumstances outlined in art. 160 obtained. The court reached this conclusion by resort to equity - natural law and reason - and by application of the doctrine of reputable scholars to the task of interpretation of the law. The court also held that the revocation of the alimony award to the wife was error, because consideration of the several factors governing the wife's need, including the relative financial positions of the parties, the counterproductive effects of requiring a sale of the family home, and the potential effects on the children, indicated that the award was not an abuse of discretion.