Sample v. Sample

PONDER, Judge.

This is before us on a motion to dismiss an appeal on the basis that the parties stipulated to the judgment.

It arose under the following circumstances.

In 1981 plaintiff secured a judgment of separation. The parties stipulated that the judgment should contain mutual injunctions prohibiting the parties from alienating or encumbering any community property prior to voluntary settlement or judicial partition of the property. After a motion by defendant to terminate the injunction in March, 1982 was denied, the mutual injunctions were maintained in a judgment of divorce granted in April, 1982. In addition to the divorce and the injunctions, this judgment contained the grant of custody of the minor children, rights of visitation, and the termination of alimony pendente lite granted previously to the defendant.

Defendant was granted a suspensive appeal and furnished bond for it. Plaintiff filed a motion to dismiss the appeal on the basis that defendant stipulated to the mutual injunctions. Defendant asserts that the stipulation applied only to the judgment of separation, the effect of which was ended by the judgment of divorce, that the stipulation applied only to the preliminary injunction of the judgment of separation and not to the permanent injunction of the judgment of divorce.

The arguments presented to the court are beside the point.

*107 The stipulation was that the injunctions were to be effective until voluntary settlement or judicial partition of the community property. These conditions have not occurred.

Also, the Supreme Court in Davis v. Davis, 420 So.2d 432 (La.1982), held that:

“An injunction obtained by a party to a suit for separation or divorce continues until: (1) there is a court order; or (2) the necessity abates because the community property has been inventoried and/or partitioned.”

However, the judgment has provisions other than the injunctions, and these provisions are appealable.

The motion to dismiss the appeal is denied.