Opinion
No. 5120.
March 21, 1972.
APPEAL FROM 24TH JUDICIAL DISTRICT COURT FOR THE PARISH OF JEFFERSON, DIVISION "A", NO. 134-129, LOUIS DESONIER, JR., J.
Caryl H. Vesy, New Orleans, for relator, Antoine J. Brady, Jr.
Gibson Tucker, Jr., Arthur S. Mann, New Orleans, for respondent, Constance Ann Veade.
Before LEMMON, GULOTTA and BOUTALL, JJ.
Plaintiff, a resident of the Parish of Jefferson, filed suit for separation in that parish. St. John the Baptist Parish is the domicile of the defendant and was also the matrimonial domicile of the parties.
Defendant filed an exception of venue to a rule by the wife for an increase in the amount of the alimony award. Other rules for suspension of alimony, reduction of alimony, and transfer of custody were filed by the defendant and are pending; however, those matters are not before us at this time.
At a hearing on the venue question, it was ascertained that plaintiff was temporarily in the State of California and her testimony was not available to the court at that time. The matter was continued to a specific date. During the interim, the trial judge granted plaintiff's motion that defendant deposit $468.00 for Mrs. Brady's travel expenses from California. The matter was continued until such funds were made available. Upon Brady's application, we granted an alternative writ of certiorari. It is in connection with a hearing on this writ that the propriety of the trial judge's order requiring the placement of the deposit is before us.
Brady's contention is that since his wife filed the suit for separation under LSA-R.C.C. art. 138 in a parish other than his domicile or the last matrimonial domicile, she must show that she is domiciled in the parish in which she filed suit. It is essential that she further show she was justified by her husband's misconduct in leaving him and establishing a separate domicile. This issue must be decided in a hearing on the venue question before the court has any jurisdiction to hear or pass on any other aspects of the litigation. Applicant relies on the case of Landry v. Landry, 192 So.2d 237 (La.App. 4th Cir. 1966). Brady further contends that until the trial judge determines the question of venue, it is without authority to issue any orders and particularly that which requires the deposit for transportation costs of the wife. State ex rel. Hart v. St. Paul, 104 La. 6, 28 So. 915 (1900).
Mrs. Brady argues that her testimony is imperative for the hearing on the determination of the question of venue. She further contends that the community is responsible for the payment of the wife's attorney's fees and costs incurred by her in the action for separation under LSA-R. C.C. 155. She contends that the payment of the expenses herein are costs of the community and that she lacks funds because her husband has not paid any alimony or child support since June, 1971, although under judgment to pay $69.23 per week.
While equitable reasons might be assigned for the payment of the transportation costs by either party to the litigation, the issue is whether the order of the trial judge for the deposit of the transportation costs of the wife by the defendant is in furtherance of the determination of the question of venue. Once having the issue of venue before it, the court under the Landry and St. Paul cases must first determine the question of jurisdiction. It, therefore, follows that orders issued by the court should pertain to matters relating to a determination of that question.
Further, it is apparent that the wife's testimony is material and necessary in the determination of the venue question. It, therefore, follows that the order relating to transportation costs for her return is in furtherance of the venue question. Moreover, the trial judge must be afforded broad latitude and discretion in the exercise of his authority in the conduct of the proceedings. After considering the record and in the absence of any showing of any abuse of this discretion or irreparable injury to applicant, we are of the opinion that the alternative writ of certiorari heretofore issued should be recalled and set aside and the matter should be remanded for further proceedings consistent with the views expressed herein.
Writ recalled and set aside.
I concur that in determining venue, the trial judge had the authority to issue any reasonable and necessary orders pertaining to that determination. But that is not the sole issue before us. We must also decide whether or not the trial judge abused his discretion in issuing the order to deposit transportation costs.
I believe that it is unreasonable for a person to institute a suit and then require the person made defendant to pay in advance the expenses of her attendance at the trial of the suit. While I believe that there is some justification for the inclusion of necessary legal expenses of the divorce suit in setting alimony pendente lite, I further believe that the wife must prove these necessary expenses as a part of her needs, as well as proving her husband's ability to pay according to his means.
See 1 Planiol, Traité Élémentaire de Droit Civil, Ch. IV, § 1249, p. 690 (12th ed. 1939, La. State Law Institute transl. 1959), cited in the concurring opinion in Romero v. Leger, 133 So.2d 897 (La.App. 3 Cir. 1961).
In this case the trial court originally set alimony pendente lite at $69.23 per week after a full hearing. The wife contends that when her husband failed to pay that alimony, she was forced to go to California (in the community automobile) to live with her brother. She could have attempted enforcement of the alimony order by contempt proceedings. Since she chose instead to leave the state, I believe that it is unreasonable to require her husband to buy her a round trip airplane ticket for her to return here to advance the case which she originated.
I therefore believe that the trial judge abused his discretion in ordering the husband to pay transportation costs of $468.00 in this case in addition to the alimony pendente lite set previously.
However, if the majority view is correct as to the order to deposit transportation costs, it appears to me more reasonable to require that the merits of the case be set for trial on the same day and immediately after the venue hearing. If venue is found to be proper, then all pending matters can be heard without additional expense to the community, the head and master of which can only afford to pay $69.23 per week to support his wife and children.
On an incidental point, I further disagree with the majority's interpretation of the Landry case, which was decided on lis pendens. Dicta in the Landry case states that a wife must first prove that her husband's fault caused her to establish a separate domicile before venue is proper as to a suit brought by her in that separate domicile.
I cannot subscribe to this theory that allows a husband to leave the matrimonial domicile and establish a separate domicile elsewhere for purposes of venue, and denies this right to the wife. Although at one time the wife needed the authority of her husband to establish a separate domicile (as well as to perform many other acts), married women have now become emancipated. The wife should be able to establish a separate domicile and institute a separation suit in that new domicile without having to prove fault twice, first on an exception to venue and second on the merits.
R.S. 9:101 et seq.
Since the sole basis of the exception of venue in this case is that the wife cannot legally establish a separate domicile without first proving that her husband's fault caused her to do so, I believe that the trial judge erred in not simply overruling the exception as a matter of law when the exception came up for hearing.