Summary
In Clesi v. Clesi, 340 So.2d 419 (La.App. 4th Cir. 1976) this court held: "Where the wife's needs exceed the ability of the husband to pay the court must fix a monthly sum which will as nearly as possible be just and fair. Reichert v. Lloveras, 188 La. 447, 177 So. 569 (1937).
Summary of this case from Rowbatham v. RowbathamOpinion
No. 7737.
December 14, 1976.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, NO. 181-261, DIVISION "G", STATE OF LOUISIANA, HONORABLE H. CHARLES GAUDIN, J.
Bordelon Carimi, Owen J. Bordelon, Jr., Gretna, for plaintiff-appellee.
Rodney J. Madere, New Orleans, for defendant-appellant.
Before SAMUEL, BOUTALL and MORIAL, JJ.
Plaintiff, Mary Kathleen Clesi and defendant Philip Clesi were married in 1969 and one child, who is now 21/2 years old, was born of the marriage. The parties separated in July 1975. Plaintiff filed this suit for separation from bed and board. She prayed for child custody, alimony pendente lite and child support. The trial judge, after hearing the evidence on the rule for alimony and child support ordered defendant to pay $400.00 alimony pendente lite, child support of $50.00 and a $229.00 monthly house note. Defendant appeals. We affirm.
Defendant argues that the trial court did not consider the debts of defendant and his clear inability to pay the amount of the award. Defendant further points out that many of his expenses are community debts.
Plaintiff argues that the award is fair under the circumstances. Plaintiff also argues that the house note is not a new obligation, but rather an existing debt defendant owes as head and master of the community.
At the hearing on the rule plaintiff presented a list of monthly expenses for herself and her child in the amount of $800.00. Defendant's monthly expenses totaled $942.50. Defendant takes home $1,200.00 monthly. He testified that there are community assets of $4,000.00 in stock which could be liquidated to pay off some of the outstanding charges and medical expenses.
Where the wife's needs exceed the ability of the husband to pay the court must fix a monthly sum which will as nearly as possible be just and fair. Reichert v. Lloveras, 188 La. 447, 177 So. 569 (1937). The trial judge is vested with wide discretion in applying these standards for support and the award will not be disturbed unless there is a clear abuse of discretion. Lewis v. Lewis, 329 So.2d 778 (La.App. 2 Cir. 1976).
In Walker v. Walker, 325 So.2d 362 (La.App. 2 Cir. 1975) the appellate court did not find that the trial court abused its discretion and affirmed an alimony award of $325.00 where the husband's net income was $650.00 and his living expenses amounted to $605.00.
In this case, plaintiff's alimony is only one-third (1/3) of defendant's net monthly take home pay. Furthermore, it is apparent that, in view of the meager amount awarded for child support, plaintiff will be compelled to contribute to the support of her child out of her alimony award. Defendant has no basis to complain about the payment of a mortgage note. Inasmuch as the house constitutes a community asset, every payment inures to his benefit as well as to his wife. See Street v. Street, 188 So.2d 164 (La.App. 2 Cir. 1966).
We find no abuse of the trial court's discretion. Accordingly, the judgment is affirmed.
AFFIRMED.
SAMUEL, J., dissents.
I agree with the law cited in the majority opinion and share their concern about disturbing a trial court award of alimony, child support or both where, as frequently happens, there is an insufficient income to support all members of the family. However, despite the fact that there is such an insufficiency of income in this case, I feel there is an answer to the problem here which justifies action on our part.
As was stated in Reichert v. Lloveras, 188 La. 447, 177 So. 569: "If, however, the wife's needs exceed the husband's ability to pay, the court must fix a monthly sum which will as nearly as possible be just and fair to each." (Emphasis ours).
Mrs. Clesi submitted a list of monthly expenses for herself and the child which totals $808.08. Mr. Clesi submitted a list of monthly expenses for himself, including payment of various community obligations, totaling $942.50. Although some of the items in both lists are questionable, none of the items in either list is controverted. Mr. Clesi's take-home salary is $1,200 out of which is deducted, prior to receipt by him, $225 for monthly payments on the community car he uses in his work. Thus, he has actual take-home pay of $975. Out of this $975 figure, he must pay $400 in alimony, $50 in child support, $229 in mortgage payments on the community home occupied by Mrs. Clesi and $92 on outstanding bills of $806.26 charged at local stores by Mrs. Clesi prior to the separation. Thus, he must pay $771 out of his actual take-home pay of $975, leaving a balance of $204 per month on which he must live and support himself. It appears obvious to me that Mr. Clesi cannot feed, house, clothe and otherwise support himself on that amount at today's prices.
The one saving feature in this otherwise apparently insoluble situation is that there is now $4,000 in community funds available to the litigants. If that amount was used to pay some or possibly all of the community debts (the record does not reveal the total amount of all community debts), Mr. Clesi could be relieved of sufficient payments to enable him to exist on whatever remains of his monthly income. Although Mr. Clesi is enjoined from using any part of the $4,000 in community assets, a release of that injunction, in whole or in part and solely for the purpose of paying community debts, should be a simple matter for the trial court.
As I would set aside the judgment appealed from and remand for the purpose of the trial court taking action consistent with the views above expressed, I respectfully dissent.