alimony rule in Louisiana

1986This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage." This court in Cromwell v. Cromwell, 419 So.2d 974 (La.App.3rd Cir.1982) stated with regard to the last sentence of La.C.C. art. 160 that: "Jurisprudence interpreting this portion of Article 160 consistently holds that for a court to alter an alimony award, including one established by a consent judgment, the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial of

1985This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage." This court in Cromwell v. Cromwell, 419 So.2d 974 (La.App. 3rd Cir.1982) stated with regard to the last sentence of La.C.C. art. 160 that: "Jurisprudence interpreting this portion of Article 160 consistently holds that for a court to alter an alimony award, including one established by a consent judgment, the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial o

1986Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.

1985Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir.1975); cert. denied, 320 So.2d 551 (1975)." It was shown at trial that Mrs. Romero received $45,000 after the sale of the family home in fulfillment of the community property settlement agreed upon by the parties at the time of the divorce.

1986Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.

1985Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir.1975); cert. denied, 320 So.2d 551 (1975)." It was shown at trial that Mrs. Romero received $45,000 after the sale of the family home in fulfillment of the community property settlement agreed upon by the parties at the time of the divorce.

1999La.R.S. 9:311(A); Chatelain v. Chatelain, 94-583 (La.App. 3 Cir. 11/2/94) ; 649 So.2d 637 ; Mitchell v. Mitchell, 626 So.2d 571 (La.App. 3 Cir.1993), writ denied, 93-2877 (La.1/28/94); 630 So.2d 792 .

1996La.R.S. 9:311(A); Chatelain v. Chatelain, 94-583 (La.App. 3 Cir. 11/2/94) ; 649 So.2d 637 ; Mitchell v. Mitchell, 626 So.2d 571 (La.App. 3 Cir.1993), writ denied, 93-2877 (La.1/28/94); 630 So.2d 792 .

1999La.R.S. 9:311(A); Chatelain v. Chatelain, 94-583 (La.App. 3 Cir. 11/2/94) ; 649 So.2d 637 ; Mitchell v. Mitchell, 626 So.2d 571 (La.App. 3 Cir.1993), writ denied, 93-2877 (La.1/28/94); 630 So.2d 792 .

1996La.R.S. 9:311(A); Chatelain v. Chatelain, 94-583 (La.App. 3 Cir. 11/2/94) ; 649 So.2d 637 ; Mitchell v. Mitchell, 626 So.2d 571 (La.App. 3 Cir.1993), writ denied, 93-2877 (La.1/28/94); 630 So.2d 792 .

1987Yet, even Arrendell admits the earning capacity of the claimant spouse should be considered if neither spouse is employed or if a claimant spouse has been regularly employed during the marriage but happens not to be employed at the very moment of trial of the alimony rule, and has the capability of securing employment immediately. 424 So.2d at 266 .

1986Yet, even Arrendell admits the earning capability of the claimant spouse should be considered if neither spouse is employed *317 or if a claimant spouse has been regularly employed during the marriage but happens not to be employed at the very moment of trial of the alimony rule, and has the capability of securing employment immediately. 424 So.2d at 266 .

1985Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir.1975); cert. denied, 320 So.2d 551 (1975)." It was shown at trial that Mrs. Romero received $45,000 after the sale of the family home in fulfillment of the community property settlement agreed upon by the parties at the time of the divorce.

1982Bernhardt v. Bernhardt, 283 So.2d 226 (1973); *976 Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir. 1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir. 1975); cert. denied, 320 So.2d 551 (1975).

1978The wife had no income, and there was no evidence of her ability to earn income [a factor apparently not considered important in the light of Ward v. Ward, 339 So.2d 839 (La.1976)].

1977Plaintiff's position is well taken in view of the decision in Ward v. Ward, 339 So.2d 839 (La.1976) in which the court held: The parties entered into the alimony waiver agreement before the divorce and while they were still husband and wife.

1999LAW AND DISCUSSION In Maturin v. Maturin, 96-808, p. 3 (La.App. 3 Cir.12/11/96); 685 So.2d 468, 470 , unit denied, 97-0121 (La.3/21/97); 691 So.2d 82 , a panel of this court stated: In order to prevail in an action to modify an alimony award, the party seeking to modify the award must prove a change in the | ..¡circumstances of either party from the time of the award to the time of the alimony rule.

1999LAW AND DISCUSSION In Maturin v. Maturin, 96-808, p. 3 (La.App. 3 Cir.12/11/96); 685 So.2d 468, 470 , unit denied, 97-0121 (La.3/21/97); 691 So.2d 82 , a panel of this court stated: In order to prevail in an action to modify an alimony award, the party seeking to modify the award must prove a change in the | ..¡circumstances of either party from the time of the award to the time of the alimony rule.

1993Moreau v. Moreau, 553 So.2d 1064 (La.App. 3d Cir. 1989).

1987Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Cromwell v. Cromwell, 419 So. 2d 974 (La.App. 3rd Cir.1982); Romero v. Romero, 463 So.2d 768 (La.App. 3rd Cir.), writ denied, 465 So.2d 735 (La.1985).

1987Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Cromwell v. Cromwell, 419 So. 2d 974 (La.App. 3rd Cir.1982); Romero v. Romero, 463 So.2d 768 (La.App. 3rd Cir.), writ denied, 465 So.2d 735 (La.1985).

1985In some circumstances, liquidity alone may be controlling, while in others it may not." Davis v. Davis, 445 So.2d 121 (La.App. 2nd Cir.1984). *771 At the time of the trial on the alimony rule, Mrs. Romero had approximately $5,000 in her bank account.

1983In the case of Williams v. Williams, 371 So.2d 297 (La.App. 2d Cir.1979), it was stated that a suit to make past due alimony executory is not a suit simply for a money judgment or debt, but is an incident of the original divorce or separation proceeding which ordered the alimony payable, referring to Williams v. Williams, 211 La. 939 , 31 So.2d 170 (La.1947).

1983In the case of Williams v. Williams, 371 So.2d 297 (La.App. 2d Cir.1979), it was stated that a suit to make past due alimony executory is not a suit simply for a money judgment or debt, but is an incident of the original divorce or separation proceeding which ordered the alimony payable, referring to Williams v. Williams, 211 La. 939 , 31 So.2d 170 (La.1947).

1983Zara v. Zara, 204 So.2d 76 (La.

1983In the case of Williams v. Williams, 371 So.2d 297 (La.App. 2d Cir.1979), it was stated that a suit to make past due alimony executory is not a suit simply for a money judgment or debt, but is an incident of the original divorce or separation proceeding which ordered the alimony payable, referring to Williams v. Williams, 211 La. 939 , 31 So.2d 170 (La.1947).

1982Second, and perhaps more squarely to the issue, the Congress has provided in 42 U.S.C. 407 that social security benefits are exempt from "execution, levy, attachment, garnishment, or other legal process." An order to turn over social security benefits under penalty of imprisonment for contempt is legal process prohibited by § 407; Washington, supra. Brown v. Brown, 32 Ohio App.2d 139 , 288 N.E.2d 852 (1972), and Huskey v. Batts, 530 P.2d 1375 (Okl.App.1974), which merely followed Brown (see also Meadows v. Meadows, 619 P.2d 598 (Okl.1980), citing Brown and Huskey ), reasoned that the purpose o

1982The answer to those cases is Philpott v. Essex County Welfare Bd., 409 U.S. 413, 416-417 , 93 S.Ct. 590, 592 , 34 L.Ed.2d 608 (1973), reversing a state's seizure of retroactive federal disability benefits to recoup benefits the state had meanwhile provided, expressly rejecting the state's argument that the state was not the kind of creditor that § 407 intended to protect against: But § 407 does not refer to any "claim of creditors"; it imposes a broad bar against the use of any legal process to reach all social security benefits.

1982The answer to those cases is Philpott v. Essex County Welfare Bd., 409 U.S. 413, 416-417 , 93 S.Ct. 590, 592 , 34 L.Ed.2d 608 (1973), reversing a state's seizure of retroactive federal disability benefits to recoup benefits the state had meanwhile provided, expressly rejecting the state's argument that the state was not the kind of creditor that § 407 intended to protect against: But § 407 does not refer to any "claim of creditors"; it imposes a broad bar against the use of any legal process to reach all social security benefits.

1982Second, and perhaps more squarely to the issue, the Congress has provided in 42 U.S.C. 407 that social security benefits are exempt from "execution, levy, attachment, garnishment, or other legal process." An order to turn over social security benefits under penalty of imprisonment for contempt is legal process prohibited by § 407; Washington, supra. Brown v. Brown, 32 Ohio App.2d 139 , 288 N.E.2d 852 (1972), and Huskey v. Batts, 530 P.2d 1375 (Okl.App.1974), which merely followed Brown (see also Meadows v. Meadows, 619 P.2d 598 (Okl.1980), citing Brown and Huskey ), reasoned that the purpose o

1982Second, and perhaps more squarely to the issue, the Congress has provided in 42 U.S.C. 407 that social security benefits are exempt from "execution, levy, attachment, garnishment, or other legal process." An order to turn over social security benefits under penalty of imprisonment for contempt is legal process prohibited by § 407; Washington, supra. Brown v. Brown, 32 Ohio App.2d 139 , 288 N.E.2d 852 (1972), and Huskey v. Batts, 530 P.2d 1375 (Okl.App.1974), which merely followed Brown (see also Meadows v. Meadows, 619 P.2d 598 (Okl.1980), citing Brown and Huskey ), reasoned that the purpose o

1982Second, and perhaps more squarely to the issue, the Congress has provided in 42 U.S.C. 407 that social security benefits are exempt from "execution, levy, attachment, garnishment, or other legal process." An order to turn over social security benefits under penalty of imprisonment for contempt is legal process prohibited by § 407; Washington, supra. Brown v. Brown, 32 Ohio App.2d 139 , 288 N.E.2d 852 (1972), and Huskey v. Batts, 530 P.2d 1375 (Okl.App.1974), which merely followed Brown (see also Meadows v. Meadows, 619 P.2d 598 (Okl.1980), citing Brown and Huskey ), reasoned that the purpose o

1982Second, and perhaps more squarely to the issue, the Congress has provided in 42 U.S.C. 407 that social security benefits are exempt from "execution, levy, attachment, garnishment, or other legal process." An order to turn over social security benefits under penalty of imprisonment for contempt is legal process prohibited by § 407; Washington, supra. Brown v. Brown, 32 Ohio App.2d 139 , 288 N.E.2d 852 (1972), and Huskey v. Batts, 530 P.2d 1375 (Okl.App.1974), which merely followed Brown (see also Meadows v. Meadows, 619 P.2d 598 (Okl.1980), citing Brown and Huskey ), reasoned that the purpose o

1981The Succession of Mioton, supra , relied upon by Seifert, supra, involved the waiver *66 of alimony by a wife and is therefore inapplicable to a waiver of child support, and we also conclude that the Duplechan case cited by Seifert also was principally concerned with an alimony waiver by the former wife and is not authority for the waiver of child support.

1980(The husband’s trial-time argument that pre-divorce alimony denies equal protection of the law presumably did not affect the trial judge; it is in any case answered by Hingle v. Hingle, La.App. 4 Cir. 1979, 369 So.2d 271 .) We therefore now decide the claim and award $25 weekly to the wife, effective immediately, as our best guess at a fair balance of the needs and limited incomes of the parties.

1971Walker v. Walker, 246 La. 407 , 165 So.2d 5 (1964); Schneider v. Schneider, 240 La. 93 , 121 So.2d 498 (1960); White v. Morris, 236 La. 767 , 109 So.2d 87 (1959); Starns v. Starns, 174 La. 743 , 141 So. 447 (1932).

1971Walker v. Walker, 246 La. 407 , 165 So.2d 5 (1964); Schneider v. Schneider, 240 La. 93 , 121 So.2d 498 (1960); White v. Morris, 236 La. 767 , 109 So.2d 87 (1959); Starns v. Starns, 174 La. 743 , 141 So. 447 (1932).