Tanner v. Tanner , 1954 La. App. LEXIS 810 ( 1954 )

LOTTINGER, Judge.

Petitioner, Athen S. Tanner, filed suit against his wife, Vera Howe Tanner, seeking an absolute divorce on the grounds of two year separation. Defendant reconvened asking that she be granted the divorce, and, among other things, asked for attorney fees in the sum of $350. The Lower 'Court rendered judgment of divorce in favor of petitioner, and awarded the defendant attorney fees in tire sum of $200. The petitioner has taken this appeal.

The only question before us on this appeal is the question of the attorney fees allowed the defendant. The defendant has answered the appeal asking that same be transferred to the Supreme Court under the provisions of Article 7, § 10, paragraph 4 of the Louisiana Constitution of 1921 which provides as follows:

“It (Supreme Court) shall have appellate jurisdiction of all suits for divorce or separation from bed and board, and of all matters arising therein; of suits involving alimony, of suits for the nullity of marriage, for interdiction, or involving the tutorship of minors, or curatorship of interdicts, or the legitimacy, or custody of children, and of matters of adoption and emancipation.” (Parenthesis and italics supplied.)

The cited paragraph from our Constitution is clear and unambiguous. It directs that all matters arising in a divorce proceeding is appealable directly to the Supreme Court. The demand for attorney fees is incidental to the demand for a divorce; and the two demands are inseparable. They are incapable of being separated from each other on appeal. DeLesdernier v. DeLesdernier, 45 La.Ann. 1364, 14 So. 191. The Constitution clearly directs that this appeal should have been made to the Supreme Court.

For the reasons assigned it is therefore ordered, adjudged and decreed that this appeal be, and it is hereby, transferred to the Supreme Court of Louisiana, to be disposed of according to law, the transfer to be made within 60 days after this judgment becomes final, and if not so made, then the appeal is to be deemed dismissed. Appellants are to pay the cost of this appeal in this court; and the remaining costs to await final determination of the matter.

Transferred to Supreme Court.