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SUPREME COURT OF LOUISIANA
No. 96-CC-0125 MALCOLM LEE WASCOM, JR. versus LUCY F. WASCOM ON WRIT OF REVIEW TO THE COURT OF APPEAL, FIRST CIRCUIT, STATE OF LOUISIANA
KIMBALL, Justice.* ISSUE We granted the writ in this case to resolve a split among the circuit courts of appeal on the issue of whether alimony pendente lite may be awarded for any period of time after a final judgment of divorce has been rendered. Finding first, the basis for alimony pendente lite is the codal obligation of mutual support between spouses and that a final judgment of divorce terminates both the marriage and that obligation of mutual support, and second, no statutory authority for such an award, we hold alimony pendente lite may not be awarded for any period of time after a valid judgment of divorce becomes final.

FACTS AND PROCEDURAL HISTORY Malcolm Lee Wascom, Jr. and Lucy F. Wascom were married December 10, 1977. The marriage produced one child, born in November, 1980. Malcolm and Lucy separated on May 12, 1994, with Malcolm filing a Petition for Divorce, Injunctive Relief and Establishment of Child Support and for other incidental matters on June 4, 1994. On July 6, 1994, Lucy filed an Answer to Malcolm's petition along with a Petition for Rule requesting Malcolm be made to show cause why, inter alia, he should not be ordered to pay Lucy a reasonable sum as alimony pendente lite. The trial court set Lucy's Rule for hearing on August 15, 1994, and on August 18, 1994, the parties settled all incidental issues regarding alimony pendente lite, child support, child custody, and injunctions in a stipulated judgment. In that judgment, the trial court ordered, inter alia, Malcolm to pay Lucy the sum of $650.00 per month in alimony pendente lite, commencing August 15, 1994. On January 4,

*

Calogero, C.J., not on panel. Rule IV, Part 2, Section 3.

1995, Malcolm filed a Rule to Show Cause why divorce should not be granted pursuant to La. C.C. art. 102. A judgment of divorce was subsequently rendered on January 19, 1995. On that same date, Malcolm ceased paying alimony pendente lite to Lucy. As no appeal from the judgment of divorce was taken, it became a final judgment. On May 22, 1995, Lucy filed a Rule for Permanent Alimony and for an Increase in Child Support. In response, Malcolm filed dilatory exceptions of vagueness and unauthorized use of summary proceedings, and a peremptory exception of no cause of action. In his memorandum in support of these exceptions, Malcolm claimed that as La. C.C. art. 112 requires a judicial determination of freedom from fault before an award of permanent alimony can be made and La. Code Civ.P. art. 2592 contains an exclusive listing of those matters which may be tried by use of summary proceedings, said list not including "fault" in a divorce matter, the rule for permanent alimony could not proceed, as the proper procedural method for determining fault is via ordinary proceedings. After a hearing the trial court sustained the exceptions, dismissing Lucy's Rule for Permanent Alimony and ordering Lucy to file a motion to appear before the court's hearing officer before the Rule for an Increase in Child Support would be heard. On August 28, 1995, Malcolm filed a Petition seeking a judicial determination that he was free from fault. On September 8, 1995, Lucy filed a Notice of Intention to Apply for Supervisory Writs in the trial court, along with a motion and an Order requesting the trial court fix a reasonable time for her application to be filed in the court of appeal. On September 11, 1995, the trial court ordered Lucy to file her writ application from the trial court's granting of Malcolm's exceptions to her Rule for Permanent Alimony by September 20, 1995. Lucy, on September 14, 1995, then filed an Answer and Reconventional Demand in response to Malcolm's petition for fault determination, wherein she denied Malcolm was free from fault and asserted in her reconventional demand her own freedom from fault and her necessitous circumstances. Lucy thereafter timely filed her writ application in the court of appeal, requesting Malcolm's exceptions be overruled, her Rule for Permanent Alimony be reinstated, and further requesting the court of appeal order alimony pendente lite reinstated retroactively to the date Malcolm ceased paying it, January 19, 1995, the date the trial court rendered the judgment of divorce. On December 14, 1995, the court of appeal granted Lucy's writ, thereby reversing the trial court's judgment sustaining Malcolm's exceptions and reinstating Lucy's Rule for Permanent 2

Alimony. In doing so, the court of appeal also addressed Lucy's request for retroactive reinstatement of alimony pendente lite, stating that since there was no action in the writ application indicating the trial judge had ever terminated alimony pendente lite, there was nothing for the court of appeal to review. Wascom v. Wascom, 95-1933 (La.App. 1st Cir. 12/14/95). Citing Nungesser v. Nungesser, 558 So.2d 695 (La.App. 1st Cir.), writ denied, 560 So.2d 30 (La. 1990), the court of appeal then stated "alimony pendente lite continues until the time the issue of fault becomes definitive," and "because the issue of fault has not yet been determined, the obligation to pay alimony pendente lite never terminated." Wascom, supra. Malcolm timely filed an application for writ in this court on January 12, 1996. We then granted the writ to resolve a split among the courts of appeal on the issue of whether alimony pendente lite may be awarded for any period of time after a final judgment of divorce. Wascom v. Wascom, 96-0125 (La. 11/01/96), 681 So.2d 1253.1

LAW AND DISCUSSION La. C.C. art. 111, "Alimony pendente lite," states: If the spouse has not a sufficient income for maintenance pending suit for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse's support, proportioned to the needs of the claimant spouse and the means of the other spouse. (Emphasis added). "In one form or another, this article has been in our Code since its inception." Cassidy v. Cassidy, 477 So.2d 84, 85 (La. 1985)(describing La. C.C. art. 148, which was amended to delete reference to suit "for separation from bed and board" by 1990 La. Acts 361,

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