Diane Schnatz, the wife-appellant, takes these appeals from successive judgments (1) overruling her exception of no cause of action, and (2) granting a divorce by default on the petition of Thomas Schnatz, husband-appellee. The husband filed motions to dismiss both appeals as frivolous. The appeals were consolidated for hearing and the motions referred to the merits. We dismiss the appeal from the judgment overruling the exception and impose damages and attorney fees against the wife for a frivolous appeal. Further, we vacate the default judgment of divorce and remand the case for further proceedings in accordance with the views hereinafter expressed.
The husband filed his petition for divorce on November 20, 1985, alleging that the parties "physically separated on the 28th day of August, 1983 and have lived separate and apart, without reconciliation, since that time." He prayed for a divorce a vinculo matrimonii under the provisions of LSA-R.S. 9:301 which provides:
The wife excepted to the petition as defective in that it did not state the spouses lived separate and apart continuously. From a judgment overruling the exception a so-called devolutive appeal was lodged by the wife (86-CA-426). While the appeal was pending the husband secured by default a judgment of divorce based on their having lived separate and apart without reconciliation for more than one year. The wife lodged a second appeal from the divorce judgment (86-CA-487).
APPEAL NO. 86-CA-426
The husband's motion to dismiss the first appeal is grounded in the contention the judgment overruling the exception is an interlocutory judgment.
La.C.C.P. art. 2083 provides for appeals from final judgments or from interlocutory judgments which may cause irreparable injury. A final judgment determines the merits in whole or in part, whereas an interlocutory judgment involves preliminary matters in the course of the action. La. C.C.P. art. 1841. As the judgment overruling the exception of no cause of action is not "final" as defined by article 1841, the only question before us is whether it meets the irreparable injury test as an interlocutory judgment. See Millet v. Johnson, 352 So.2d 1301 (4th Cir.1977).
The wife does not argue that the interlocutory judgment caused irreparable injury. Rather, she cites a string of cases wherein the sustaining of the exception was appealed as support for the proposition that the overruling of the exception can be appealed. The fallacy in the wife's reasoning lies in the distinctly different effects of a judgment sustaining an exception as opposed to a judgment dismissing an exception.
A judgment sustaining an exception has the effect of a final judgment for the suit is terminated. Therefore, it is appealable. Lambert v. National Bank of Commerce, 472 So.2d 284 (1st Cir.1985). As noted previously "....it is too certain to require comment that a judgment which dismisses a peremptory exception of no right or cause of action is an interlocutory judgment and unappealable."
Accordingly, we conclude that the judgment overruling the exception is interlocutory in nature and since there is no showing of irreparable injury, the motion of the appellee is granted and the appeal under docket number 86-CA-426 is dismissed at appellant's cost. See Brian v. Target, Inc., 395 So.2d 372 (1st Cir.1981).
It is apparent to us the wife has again failed to raise any legitimate substantive or procedural issues in relation to her subsequent appeal from the interlocutory judgment. Additionally it appears the sole purpose of the appeal was delay in order for her eligibility for alimony pendente lite payments to continue. Hence, we find the appeal frivolous and award $750.00 in damages to appellee and $1,500.00 attorney's fees.
APPEAL NO. 86-CA-487
The husband has also filed a motion to dismiss the appeal from the divorce judgment as frivolous in that it is predicated on the failure to use the term "continuously" when alleging their having lived separate and apart for one year as the grounds for the divorce. However, the wife contends the default judgment was taken without her knowledge and at a time when the trial court was divested of jurisdiction by the signing of the first order of appeal. The husband avers that as the interlocutory judgment (86-CA-426) ordered appellant to file an answer within ten days, and she failed to do so, a default could be taken. He asks that appellant not be allowed to use the "bogus" appeal of the interlocutory judgment to "boot-strap" a good appeal of the divorce judgment.
The wife's point is well taken. La. C.C.P. art. 2088 provides as follows:
Once the trial court signed the order of appeal from the judgment overruling the exception to the divorce petition the appellee was debarred from obtaining a judgment, for the trial court was divested of jurisdiction over the petition. Appellee's remedy was via a motion to dismiss the appeal. As none of the exceptions detailed in article 2088 are applicable, the judgment of divorce rendered during the pendency of the first appeal is null and without effect. See Ballanco v. Ballanco, 480 So.2d 1039 (5th Cir.1985); American Bank v. Red Diamond Supply, 472 So.2d 155 (5th Cir. 1985). An action for nullity on the basis of lack of jurisdiction may be asserted collaterally and at any time. See La.C.C.P. art. 2002 and comments thereunder; Fouchi v. Fouchi, 442 So.2d 506 (5th Cir.1983) writ denied 445 So.2d 1235 (La.1984).
Accordingly, we annul and set aside the judgment of divorce and remand the case for further proceedings. Although the husband requests damages and attorney's fees for the appeal of the divorce judgment, we decline to make the awards, for in this instance there was a legitimate basis for the appeal.
For the foregoing reasons the appeal from the interlocutory judgment is dismissed at appellant's cost, and appellee is awarded $750.00 in damages and $1,500.00 in attorney's fees.
The judgment of divorce is vacated and the matter is remanded back to the trial court for further proceedings.
DISMISSED IN PART; RENDERED IN PART; JUDGMENT VACATED; CASE REMANDED.