
    Cheryl Johnson, Wife of Kevin G. BARKEMEYER v. Kevin G. BARKEMEYER.
    Nos. 89-CA-0228, 89-CA-0229.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1989.
    On Rehearing April 26, 1990.
    
      Alvin P. Perry, Jr., New Orleans, for appellant.
    Phyllis C. Coci, Kenner, for appellee.
    Before BARRY, BYRNES and PLOTKIN, JJ.
   BYRNES, Judge.

Defendant Kevin Barkemeyer appeals from a judgment in rule of the district court which awarded the plaintiff Cheryl Johnson Barkemeyer the sum of $2,000 in past due alimony. We amend and affirm the judgment in rule.

The sole issue before the court is whether the trial court judge erred in calculating the sum of past due alimony owed by the defendant to the plaintiff.

The pertinent facts as revealed by the record‘are as follows:

On June 2, 1986 plaintiff Cheryl Barkem-eyer filed a suit for separation which was served on Kevin Barkemeyer on June 13, 1986. (Docket No. 86-9829) Thereafter the parties attempted a reconciliation and the suit was dismissed without prejudice on July 23, 1986.

On October 9, 1986, plaintiff again filed suit for separation on the basis of abandonment of the defendant and non-reconciliation by the parties. (Docket no. 86-18304). The petition was served on October 16, 1986. The defendant filed an answer and reconventional demand on the basis of cruel treatment on October 27, 1986. These pleadings were served on October 31, 1986.

On November 3, 1986 the defendant consented to pay alimony pendente lite of $425.00 per month. On June 25, 1987 Mr. Barkemeyer obtained a default judgment of divorce against his former wife on the basis of the couples physical separation for over one year. (Docket 87-9474)

The plaintiff on August 21, 1987 filed a rule for contempt alleging that, as of the date of this filing, defendant was in arrears in the amount of $850.00. On September 2, 1987 defendant excepted to the rule for contempt and alleged that no cause of action existed because a final judgment of divorce was rendered on June 25, 1987, which terminated defendant’s obligation to pay alimony pendente lite. (Docket No. 87-9474).

On January 19, 1988 plaintiff filed a rule for permanent alimony (Docket No. 86-18304). The matter was tried January 26, 1988 and a judgment rendered January 29, 1988 fixing permanent alimony at $300.00 per month and finding both parties free from fault in the break up of the marriage (Docket Nos. 86-9829 and 18304). The judgment is silent as to the effective date of the permanent alimony award.

On June 24, 1988 plaintiff filed a rule to increase alimony and rules for contempt and the payment of past due alimony. (Docket Nos. 86-9829 and 18304). In the rule seeking payment of past due alimony, plaintiff alleged- the defendant was in arrears in the amount of $3,911.25 and she sought to have this sum made executory.

On August 19, 1988 the court heard the rule for the payment of past due alimony and continued the rules to increase alimony and for contempt. A judgment was rendered on September 20, 1988 which made executory past due alimony in the amount of $2,000. The court ordered the sum of $500.00 paid by September 1, 1988 with the balance of $1,500.00 payable within 90 days of the rule date. Defendant appeals this judgment devolutively.

On appeal the defendant argues that the trial court erred in computing the arrearage owed by him. Mr. Barkemeyer contends that the amount of his arrearage is $500.00 and not the $2,000 as found by the trial court judge. He reasons that the sum of $500.00 is comprised of $200.00 owed for October, 1987 as per the parties prior consent, and $300.00 for February 1988, which constitutes a prospective application of the trial court judgment of permanent alimony. Mr. Barkemeyer contests the sums of $300.00 per month allegedly owed for July, August, November and December, 1987 and January, 1988, as being an erroneous retroactive application of the permanent alimony judgment.

Mrs. Barkemeyer concedes that alimony pendente lite automatically terminated with the judgment of divorce on June 25, 1987 but she argues that the trial judge, in rule, did not err in making the permanent alimony award retroactive to the date of the divorce (i.e., the date of termination for alimony pendente lite), as this action reflected the clear intent of the parties and was within the discretion of the trial court, considering the particular circumstances of this case.

Alimony pendente lite terminates with a divorce. Lewis v. Lewis, 404 So.2d 1230 (La.1981); Holliday v. Holliday, 358 So.2d 618 (La.1978); Braning v. Braning, 449 So.2d 670 (La.App. 4th Cir.1984).

The parties are in accord that the plaintiff’s right to alimony pendente lite terminated with the divorce. They disagree, however, as to the effective date of the permanent alimony award and whether the non-awarding judge, acting on a rule to make past due alimony executory, could give retroactive effect to the judgment for permanent alimony, where that judgment is silent as to its effective date.

The court awarding the judgment of alimony or the court acting on a rule to collect arrearages of the alimony (where the original judgment of alimony is silent, as to its effective date) may make the award retroactive to a selected date. See: Key v. Willard, 488 So.2d 1147 (La.App. 2d Cir.1986).

The trial judge has discretion in setting the effective date of an alimony award depending upon the particular circumstances of the case. Anderson v. Anderson, 441 So.2d 413 (La.App. 4th Cir.1983). In this case there exists compelling reasons for the retroactive application of the award of permanent alimony. The record reflects that the plaintiff is suffering from multiple sclerosis complicated by epilepsy. It is a progressive and debilitating condition which precludes plaintiff’s gainful employment. Her sole source of income is the net sum of $376.00 which she receives from social security. Thus, under the particular circumstances of this case we find no abuse of discretion by the trial judge, in rule, in giving the permanent alimony judgment retroactive effect, where the original permanent alimony judgment was silent as to its effective date.

In considering the correctness of the trial court’s calculation of the arrearage we must next determine whether the date chosen by the trial judge for the commencement of permanent alimony is correct.

Louisiana Revised Statute, Title 9 Section 310 provides for the retroactivity of alimony awards and we find it controlling in this case. The statute provides, in pertinent part:

La.R.S. 9:310 Retroactivity of child support and alimony order
A. An order for child support or alimony shall be retroactive to the filing date of the petition for child support or alimony granted in the order.
* * * * * *
C. In the event the court finds good cause for not making the award retroactive, the court may fix the date such award shall become due.

The trial court, in this case, gave the permanent alimony judgment retroactive effect back to June 25,1987, which was the date the divorce was rendered and alimony pendente lite ceased.

On appeal Mr. Barkemeyer argues that it was error for the court to give the alimony judgment retroactive effect. He further argues that in no case, should the judgment for permanent alimony been made retroactive beyond January 19, 1988, which was the date his former wife filed her rule for permanent alimony.

Mrs. Barkemeyer argues, however, that the effective date of the commencement of permanent alimony should be August 19, 1987, which is the date of her original rule for contempt. She reasons that it was the intent of the parties that permanent alimony was to be established at the hearing on the rule for contempt.

We find Mrs. Barkemeyer’s argument to be persuasive. The record reflects that Mrs. Barkemeyer filed a rule for contempt on August 19, 1987 seeking alimony from July, 1987. The matter was originally to be heard September 8, 1987 but was reset for hearing on November 4,1987, and finally heard January 26, 1988. In brief, Mr. Barkemeyer admits that the November 4, 1987 hearing “would be for a Rule to Establish Permanent Alimony ..(Pages 3 & 8). This being the case, it was the intent of the parties that the rule for contempt was to also include a determination of the issue of permanent alimony. As such, we find the wife’s rule for permanent alimony, filed January 19, 1988, was merely an amendment to and relates back to the date the rule for contempt was filed, namely August 19, 1987. See: La.C.C.P. Art. 1153.

Since the effective date for retroactivity of an alimony order is “the filing date of the petition for alimony” and since Mrs. Barkemeyer’s petition was originally filed August 19, 1987, we find that the permanent alimony judgment should commence from August, 1987. As such, the trial judge erred in giving the permanent alimony judgment retroactive effect back to June 25, 1987.

Accordingly, the judgment of the trial court on the rule to make past due alimony executory is amended to award Cheryl Johnson Barkemeyer as against Kevin B. Barkemeyer the full sum of One Thousand Seven Hundred and No/100 ($1,700.00) Dollars. As amended, the judgment of the trial court in rule is affirmed, at appellant’s costs.

AMENDED AND AFFIRMED.

PLOTKIN, Judge,

dissenting with written reasons:

Although I agree with the majority’s conclusion that the trial judge incorrectly applied the alimony decree retroactively to the date of divorce on June 25, 1987, I respectfully dissent from its conclusion that the correct date for commencement of alimony is the date the rule for contempt was filed on August 19, 1987.

LSA-R.S. 9:310 provides, in pertinent part, as follows:

A. An order for child support or alimony shall be retroactive to the filing date of the petition for child support or alimony granted in the order.
C. In the event the court finds good cause for not making the award retroactive, the court may fix the date such award shall become due.

It is well settled in Louisiana law that when a rule for permanent alimony is not filed until after the date of the divorce decree, the award may be made retroactive only to the date of judicial demand for permanent alimony. Coney v. Coney, 215 La. 667, 41 So.2d 497 (1949). In this case, that date is January 19, 1989, when the rule for permanent alimony was officially filed.

Ms. Barkemeyer filed a rule for contempt on August 19, 1987 because her ex-husband had terminated payment of alimony pendente lite after the divorce decree was granted. Mr. Barkemeyer excepted to the rule, claiming correctly that his obligation to pay alimony pendente lite terminated when the divorce was granted. Ms. Barkemeyer later admitted that he no longer had the obligation to pay alimony pen-dente lite once the divorce was granted. The parties agreed on September 8, 1987 that Ms. Barkemeyer would file the correct rule for permanent alimony and that that issue would be decided in a hearing set for November 4, 1987. However, Ms. Barkem-eyer failed to file the correct rule. Additionally, she requested a continuance of the November 4 hearing.

Essentially, the August 19, 1987 rule for contempt had no effect in law since Ms. Barkemeyer had no cause of action for past due alimony at the time. Nonetheless, the majority holds that the rule for permanent alimony was merely an amendment to the rule for contempt. I cannot agree with that analysis.

I would hold that the permanent alimony decree issued January 29, 1989 was retroactive only until the official filing of the rule on January 19, 1989.

Before BARRY, BYRNES, WILLIAMS, ARMSTRONG and PLOTKIN, JJ.

PLOTKIN, Judge.

Defendant Kevin G. Barkemeyer appeals a trial court judgment awarding plaintiff Cheryl Johnson Barkemeyer $2,000 in past due alimony. The sole issue in this appeal is whether the trial judge correctly calculated the past due alimony award. We amend and affirm.

Facts:

On June 2,1986, Mrs. Barkemeyer filed a suit for separation which was served on Mr. Barkemeyer on June 13, 1986. Thereafter the parties attempted a reconciliation and the suit was dismissed without prejudice on July 23, 1986.

On October 9, 1986, Mrs. Barkemeyer again filed suit for separation, alleging her husband’s abandonment and nonreconciliation by the parties. That petition was served on Mr. Barkemeyer on October 16, 1986. Mr. Barkemeyer filed an answer and a reconventional demand, alleging cruel treatment, on October 27, 1986. Those pleadings were served on Mrs. Barkemeyer on October 31, 1986.

On November 3, 1986, Mr. Barkemeyer consented to pay alimony pendente lite of $425 per month. On June 25, 1987, Mr. Barkemeyer was granted a default judgment of divorce based on the couple’s physical separation for more than one year.

On August 19, 1987, Mrs. Barkemeyer filed a rule for contempt, alleging that Mr. Barkemeyer was $850 in arrears on his alimony obligation. On September 2, 1987, Mr. Barkemeyer excepted to the rule for contempt, alleging that no cause of action existed because his obligation to pay alimony pendente lite was terminated on June 25, 1987, when the final judgment of divorce was rendered. On September 8, 1987, when the rule for contempt and the exception were set to be heard, Mrs. Bar-kemeyer agreed to file the appropriate motion for permanent alimony. At the same time, the parties agreed that Mr. Barkem-eyer would pay Mrs. Barkemeyer $200 per month until the hearing on the rule for permanent alimony, which was set for November 4, 1987. However, no rule for permanent alimony had been filed as of the scheduled date and the hearing was continued indefinitely on Mrs. Barkemeyer’s motion.

On January 19, 1988, Mrs. Barkemeyer filed a rule for permanent alimony. The matter was tried January 26, 1988 and judgment was rendered January 19, 1988, fixing permanent alimony at $300 per month and finding both parties free from fault in the termination of the marriage. The judgment was silent as to the effective date of the permanent alimony award.

On June 24, 1988, Mrs. Barkemeyer filed a rule to increase alimony, as well as rules for contempt and for the payment of past due alimony. In the rule seeking payment of past due alimony, Mrs. Barkemeyer alleged that her former husband was $3,911.25 in arrears and sought to make this amount executory.

On August 19, 1988, the rule for payment of past due alimony was heard by a duty judge during summer session; the rule to increase alimony and the rule for contempt were continued. On September 20, 1988, judgment was rendered, making past due alimony in the amount of $2,000 executory. The court ordered the payment of $500 by September 1, 1988, with the balance of $1,500 to be payable within 90 days of the rule date. Mr. Barkemeyer appeals this judgment devolutively.

On appeal, Mr. Barkemeyer argues that the trial court erred in computing the ar-rearage in his permanent alimony obligation, claiming that $500 is the proper amount of arrearage, not the $2,000 found by the trial court. Mr. Barkemeyer computes the arrearage as follows: $200 for October of 1987 per the couple’s prior consent decree, plus $300 for February of 1988 per the trial court’s judgment. Mr. Bar-kemeyer contests the trial court’s holding that he owes $300 permanent alimony per month for July, August, November and December of 1987 and for January of 1988, claiming the award of those sums was an improper retroactive application the the permanent alimony judgment.

Mrs. Barkemeyer concedes that alimony pendente lite automatically terminated with the judgment of divorce on June 25, 1987, but argues that the trial judge did not err in making the permanent alimony award retroactive to the date of the divorce. Mrs. Barkemeyer claims that the trial court’s action reflected the clear intent of the parties and was within the discretion of the trial court, considering the particular circumstances of the case.

It is well settled in Louisiana law that alimony pendente lite terminates with a divorce decree. Lewis v. Lewis, 404 So.2d 1230 (La.1981); Braning v. Braning, 449 So.2d 670 (La.App. 4th Cir.1984). The parties in the instant case agree that Mrs. Barkemeyer’s right to alimony pendente lite terminated with the divorce. They disagree, however, as to the effective date of the permanent alimony award. Additionally, Mr. Barkemeyer contests whether a non-awarding judge, acting on a rule to make past due alimony executory, can give retroactive effect to a judgment for permanent alimony which is silent as to the effective date.

A trial judge generally has discretion in setting the effective date of an alimony award depending upon the particular circumstances of the case. Anderson v. Anderson, 44.1 So.2d 413 (La.App. 4th Cir.1983). This rule applies both to regular judges and duty judges. In the instant case, compelling reasons for retroactive application of the award of permanent alimony exist. The record reveals that Mrs. Barkemeyer is suffering from multiple sclerosis complicated by epilepsy. This is a progressive and debilitating condition which precludes her from securing gainful employment. Her sole source of income is the Social Security Administration, from which she receives $376 per month. Thus, under the circumstances, the trial judge in rule did not abuse his discretion in giving the permanent alimony judgment retroactive effect, since the original judgment was silent as to the effective date.

However, the inquiry does not end with that determination. We must next consider whether the date chosen by the trial judge for the commencement of the permanent alimony is correct.

LSA-R.S. 9:310 provides, in pertinent part, as follows:

A. An order for child support or alimony shall be retroactive to the filing date of the petition for child support or alimony granted in the order.
C. In the event the court finds good cause for not' making the award retroactive, the court may fix the date such award shall become due.

It is well settled in Louisiana law that when a rule for permanent alimony is not filed until after the date of the divorce decree, the award may be made retroactive only to the date of judicial demand for permanent alimony. Coney v. Coney, 215 La. 667, 41 So.2d 497 (1949). In this case, that date is January 19, 1989, when the rule for permanent alimony was officially filed.

Mrs. Barkemeyer filed a rule for contempt on August 19, 1987 because her ex-husband had terminated payment of alimony pendente lite after the divorce decree was granted. Mr. Barkemeyer excepted to the rule, claiming correctly that his obligation to pay alimony pendente lite terminated when the divorce was granted. Mrs. Barkemeyer later admitted that Mr. Bar-kemeyer no longer had the obligation to pay alimony pendente lite once the divorce was granted. The parties agreed on September 8, 1987 that Ms. Barkemeyer would file the correct rule for permanent alimony and that that issue would be decided in a hearing set for November 4, 1987. However, Ms. Barkemeyer failed to file the correct rule. Additionally, she requested a continuance of the November 4 hearing.

Essentially, the August 19, 1987 rule for contempt had no effect in law since Ms. Barkemeyer had no cause of action for past due alimony at the time. Therefore, the trial court was manifestly erroneous in giving the award for permanent alimony retroactive effect to the date of the granting of the divorce decree and thus incorrectly calculated the past due alimony award.

For the above and foregoing reasons, the trial court’s judgment awarding Mrs. Bar-kemeyer $2,000 in past due alimony is amended to $500. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

BYRNES, Judge,

dissents with reasons.

Although I agree with the majority’s conclusion that the trial judge incorrectly applied the alimony decree retroactively to the date of divorce on June 25, 1987, I disagree with their conclusion that the correct date for commencement of alimony is January 19, 1988, and plaintiff is owed only $500.00 in past due alimony.

I agree with Mrs. Barkemeyer’s argument that the effective date of the commencement of permanent alimony should be August 19,1987, the date of her original rule for contempt, because it was the intent of the parties that permanent alimony was to be established at the hearing on the rule for contempt.

The record reflects that Mrs. Barkemeyer filed a rule for contempt on August 19, 1987 seeking alimony from July, 1987. The matter was originally to be heard September 8, 1987 but was reset for hearing on November 4, 1987, and finally heard January 26, 1988. In brief, Mr. Barkemeyer admits that the November 4, 1987 hearing “would be for a Rule to Establish Permanent Alimony ...”. (Pages 3 & 8). This being the ease, it was the intent of the parties that the rule for contempt was to also include a determination of the issue of permanent alimony. As such, we find the wife’s rule for permanent alimony, filed January 19, 1988, was merely an amendment to and relates back to the date the rule for contempt was filed, namely August 19, 1987. See: La.C.C.P.Art. 1153.

Since the effective date for retroactivity of an alimony order is “the filing date of the petition for alimony” and since Mrs. Barkemeyer’s petition was originally filed August 19, 1987, I am of the opinion that the permanent alimony judgment should commence from August, 1987 and Mrs. Barkemeyer should be entitled to One Thousand Seven Hundred and NO/100 ($1,700.00) Dollars in past due alimony.

For these reasons, I respectfully dissent.

ARMSTRONG, J., joins in BYRNES, J., dissent and subscribes to the reasons that he assigns. 
      
      . Although the rule before the court sought past due alimony, an increase in alimony and a contempt order, all matters except the rule for past due alimony were continued.
     