
    (98 South. 664)
    No. 25547.
    BRAUD v. HUTH.
    (Nov. 19, 1923.
    On Application for Rehearing Jan. 7, 1924.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <&wkey;l4(M) — Failure to bring up transcript on appeal held to bar right to second order of appeal.
    Where, in a divorce suit, the wife perfected an appeal by filing bond in the lower court, but failed to bring up the transcript within the return day, the right of appeal was lost and she could not obtain a second order of appeal.
    2. Divorce &wkey;>308 — $125 per month held proper for support of 13 year old daughter in divorced wife’s custody where husband had income of over $12,000 a year.
    A husband who has obtained án absolute divorce from his wife, and who has an income of $12,000 to $13,000 per year, may properly be required to contribute $125 per month for the support of his 13 year old daughter, custody of whom has been awarded the wife.
    
      3. Divorce &wkey;>3l2 — Acceptance by wife of additional alimony voluntarily paid by husband for child’s support held not to bar her right to review allowance.
    Where, prior to final divorce, the husband paid $15 per month additional to a required monthly payment of $45 for the support of his daughter, who was in the wife’s custody, acceptance by the wife of such additional payment did not constitute an aeqAieseence by her in the ruling of the court allowing alimony for the child, nor bar her from her right to review thereof, she being merely the disburser of the husband’s allowance, and a refusal of the voluntary contribution by the wife would have made her recreant to her trust.
    On Application for Rehearing.
    4. Divorce <&wkey;>243 — Whether judgment for alimony should be retrospective depends on circumstances of each case.
    Whether a judgment for alimony should be made retrospective depends on the circumstances of each case.
    Appeal from Civil District Court, Parish of OrleansWynne G. Rogers, Judge.
    Suit by Mrs. Josephine Braud, wife, against Nicholas G. I-Iuth, for divorce after a judgment of separation. Suit dismissed and an absolute divorce granted the husband by a judgment which also sustained an exception of no cause of action and dismissed plaintiff’s reconventional demand set up in her amended answer. From the judgment dismissing her reconventional demand, plaintiff appeals.
    Appeal from judgment dismissing reconventional demand dismissed, and judgment in other respects rendered.
    Woodville & Woodville, of New Orleans, for appellant.
    Borah, I-Iimel, Bloch & Borah, of Franklin, for appellee.
    By Division B, composed of Justices DAW-KINS, LAND, and LECHE. .
   DAWKINS, J.

Plaintiff obtained against her husband, a judgment of separation from bed and board, and after expiration of the year provided by the Code (article 139) sued for a ■ final divorce and for alimony in the sum of $250 per month; but subsequently dismissed1 the latter proceeding. In the meantime, an amicable settlement of the community was reached and reduced to judgment in the court below. Having been given the custody of the two children, a boy and a girl, in the original judgment, she was also awarded alimony in the sum of $150 per month for their support. Later, the son married, and by agreement between counsel for plaintiff and defendant it was stipulated that defendant should pay for the support of the daughter, a child about 12 years old, the sum of $45 per month, which defendant subsequently increased voluntarily to $60.

After the expiration of two years, plaintiff not having seen fit to ask for a final divorce, except in the proceeding which was dismissed, defendant availed himself of the-statute and sued for a final decree. Plaintiff admitted there had been no reconciliation and submitted the matter to the court, but averred that defendant enjoyed an income of $10,000 per year and that she should be allowed alimony in the sum of $250 per month. In an amended answer she attacked the former settlement of the community on the ground of fraud and deception as to the value of- its property, and in reconvention prayed that the judgment based thereon be set aside; that a new inventory be made, and for a just and equitable adjustment. Pleas of res judicata, prescription, and no cause of action were filed. There was judgment for defendant, sustaining the exception of no cause of action, and dismissing the re-conventional demand set up in the amended answer, and, on the merits, granting the husband an absolute divorce.

Orders of appeal, suspensive and devolutive, were prayed for and granted, conditioned upon the wife executing bond as provided by law, and made returnable to this court August 14, 1922. There is nothing to show when this order was granted or filed, but the judgment was rendered on the 8th day of June, 1922, and signed on the 15th of the same month. On August 4, 1922, she filed a proper bond for perfecting the said appeal but never lodged the transcript in this court. On August 22, 1922, the wife, defendant in the suit for final divorce, obtained a second order of appeal from the judgment dismissing the reconventional demand, in which order the bond was fixed at $50 and filed on the same day.

Appellee, husband, has filed in this court a motion to dismiss the said second appeal upon the ground that having perfected the first one by filing the bond in the lower court, and having failed to bring up the transcript within the return day, appellant had lost and abandoned her right of appeal. The motion must be maintained. Bowie v. Davis, 33 La. Ann. 345; Laussade v. Maury, 31 La. Ann. 858; Girod v. Monroe Brick Co., 127 La. 328, 53 South. 582; Whitney Cent. Bank v. Greenwood, 146 La. 572, 83 South. 834.

On June 21, 1922, plaintiff (wife) filed a rule to increase the alimony which defendant was paying for the support of his daughter from $60 to $500 per month upon the allegation that he enjoyed an income of $15,-000 per year. After trial, the court below fixed the sum to be paid at $75 per month, and from this order plaintiff prosecuted a separate appeal.

The record shows that defendant (husband) receives a salary of $4,200 per year from the N. G. Huth Construction Company, of which he is president. It also shows that he owns three-fourths of the capital stock of that company; that in the year 1920 it made a net profit of $12,340.16, in 1921, $10,-911.51, and for the year 1922 (the case being tried in June of that year), the witness by whom these facts were proved swore that “they (the profits) will run that much, * * * but will not go much more.” This testimony was given by one Ayeock, who owns the other one-fourth of the stock, Iseeps the records, and was not disputed. This makes the income of the defendant something like $12,000 to $13,000 per year;, and in the circumstances, we think he should contribute at least $125 per month for the support of his said daughter. .She is a girl now in'her teens, and her needs will soon require this amount, if they have not already reached that point.

With reference to the motion to dismiss this last appeal from the judgment fixing alimony for the child, upon the ground that plaintiff has acquiesced therein by receiving the $15 per month additional allowed by the court below, it is sufficient to say that such judgments, unlike the ordinary case, are never final, but subject to modification according to circumstances. We do not think that by accepting that which was necessary to her support, appellant has lost the right to have us review the ruling (of the lower court.

For the reasons assigned, the appeal from judgment dismissing the wife’s reconventional demand is dismissed at her cost, as having been abandoned; as to the judgment for alimony for the minor Rosemary Huth, the same is increased to the sum of $125 per month; appellee to pay all costs thereof.

On Application for Rehearing.

By the WHOLE COURT:

PER CURIAM.

1. The acceptance by plaintiff of the sum of $75 per month, fixed by the lower court as alimony for the support of their minor daughter placed in her (plaintiff’s) custody, was not an acquiesence in that judgment, for these reasons; That the judgment was in favor of (or quasi in favor of) the child and not of the mother, and hence the latter had no right, being a mere disburse!- of the allowance, to acquiesce in the amount thereof, if in fact insufficient for the support of the child.

And again, since there was both a legal and a natural obligation on the part of the father to contribute to the support of his ehilp., the mother would have been recreant to her trust had she refused what the father voluntarily' contributed, and thereby suffered the child to want; the presumption being that the father made such contribution either out of a sense of duty, or in fear of the penal laws (let us hope the former), and not because of the judgment, which was not executory, since plaintiff was appealing therefrom.

2. Whether a judgment for alimony should or should not be made retrospective depends upon the circumstances of each case. In this case the trial judge thought the minor could be cared for with $75 per month, although we think that a man whose income exceeds $12,000 a year, and has only this one child dependent on him (the mother having her share in the community, and the son being of age and married), should provide more liberally for this daughter, now 13 years of age.

But the fact that the father has failed to provide suitably for his child for a time affords no warrant for this court to capitalize the arrears of what he should have contributed over and above what he did contribute, and award them now to the child in one lump sum. That would not be awarding her alimony, but furnishing her with capital; for the $75 per month allowed by the district judgment did suffice for her actual maintenance, even though insufficient to maintain her in the manner in which we think her father should maintain her. The case would be different, if we thought the amount contributed had not sufficed to maintain her at all, and the mother had herself been obliged to furnish necessaries for the child's support.

Our decree is therefore so amended that the alimony shall remain as fixed by the lower court until February 1, 1924; and that the amount awarded by this court shall begin only at that date, and be payable monthly in advance. And with this amendment a rehearing is refused.  