Opinion
No. 90-CA-189, 90-CA-627.
January 16, 1991.
APPEAL FROM TWENTY-NINTH JUDICIAL DISTRICT COURT, ST. CHARLES PARISH, STATE OF LOUISIANA, HONORABLE JOEL T. CHAISSON, J.
Trudy H. Oppenheim, New Orleans, for plaintiff-appellant.
D. Douglas Howard, Kathryn E. Hill, Rachel M. Guidry, New Orleans, for defendant-appellee.
Before KLIEBERT, BOWES and GRISBAUM, JJ.
Plaintiff, Larry W. Schoenfeld, has appealed several judgments rendered in favor of defendant, Cheryl Hope Schoenfeld. We affirm the judgment granting Mrs. Schoenfeld alimony pendente lite and denying Mr. Schoenfeld's motion for rehearing; however, we annual and set aside the judgment finding Mr. Schoenfeld to be in contempt of court.
The parties were married on November 7, 1987. On August 9, 1988, plaintiff, Larry W. Schoenfeld filed a petition for separation.
On September 22, 1988, defendant filed a rule for alimony pendente lite. The rule was heard on May 13, 1989, at which time the trial court ruled that plaintiff was to pay alimony pendente lite of $600.00 per month. Final judgment was signed by the trial court on June 12, 1989.
Prior to the signing of the judgment, on May 26, 1989, appellant filed a "Motion for Rehearing." While this motion was pending, on July 31, 1989, appellee filed a rule for contempt for plaintiff's failure to pay alimony pendente lite. Both the motion and the rule were heard on November 20, 1989.
During the hearing, appellant sought to introduce additional evidence concerning his income. The trial court did not allow the introduction, however, it did allow plaintiff to proffer the evidence.
After the hearing, the trial court signed a judgment finding plaintiff to be in contempt of court, and ordering plaintiff to pay $9,000.00 in past due alimony or serve 60 days in Parish Prison. Plaintiff filed an application for supervisory writs (Schoenfeld v. Schoenfeld, 89-C-823) and this court stayed the jail sentence, pending the outcome of this appeal.
On November 27, 1989, the trial court denied plaintiff's motion for rehearing.
On appeal, plaintiff alleges numerous assignments of error, which address four issues:
1) Did the trial court err in awarding alimony pendente lite of $600.00 a month?
2) Did the trial court err in denying plaintiff's motion for rehearing?
3) Did the trial court err in holding plaintiff in contempt of court?
4) Did the trial court err in denying a preliminary motion for default?
ALIMONY PENDENTE LITE
Appellant alleges that the trial court erred in awarding alimony pendente lite of $600.00. Mrs. Schoenfeld established that she earns a "take-home" wage of $988.00 a month. Her testimony indicated that her expenses, for the basic necessities, were approximately $1,030.00 a month. Accordingly, appellant argues that he should be required to pay only $42.00 a month for alimony pendente lite.
LSA-C.C. art. 148 provides:
If the spouse has not a sufficient income for maintenance pending suit for separation from bed and board or for divorce, the judge may allow the claimant, spouse, whether plaintiff or defendant, a sum for that spouse's support, proportioned to the needs of the claimant spouse and the means of the other spouse.
Mr. Schoenfeld claims that, with an award of $42.00 a month, his wife will have "sufficient income for maintenance" and will be able to meet her basic expenses. However, alimony pendente lite is not a vehicle to provide a spouse with just the basic necessities:
Because alimony pendente lite is ordinarily determined shortly after separation, it is designed to preserve and continue the status quo insofar as maintenance and support are concerned. The claimant spouse's needs have been defined as the amount necessary to maintain the previous standard of living. [citations omitted]
Braswell v. Braswell, 494 So.2d 1333 (La.App. 2 Cir. 1986)
See also Velez v. Velez, 552 So.2d 1271 (La.App. 5 Cir. 1989); Fairchild v. Fairchild, 537 So.2d 1260 (La.App. 4 Cir. 1989).
The trial court, after considering the evidence presented by both parties, concluded that Mrs. Schoenfeld needed approximately $1,600.00 to maintain the standard of living which she and her husband enjoyed during the marriage.
Appellant also argues that he does not have sufficient "means" to pay the award of $600.00 a month. At the hearing, which was held in May of 1989, he testified that he earned $53,000.00 in 1988. He testified that his income had been reduced and that he had earned $16,000 to $18,000 for the five months of the current year, thereby giving him an income in excess of $3,000 a month.
We have often recognized that the trial court is given wide discretion in awarding alimony pendente lite and should not be reversed on appeal absent manifest abuse of that discretion. Velez v. Velez, supra; Pechenik v. Pechenik, 474 So.2d 961 (La.App. 5 Cir. 1985); O'Pry v. O'Pry, 425 So.2d 986 (La.App. 5 Cir. 1983).
We find no such abuse of discretion in this case.
MOTION FOR REHEARING
The appellant alleges that the trial court erred in denying his "Motion for Rehearing. "
Plaintiff filed his motion for rehearing, in which he requested a new trial, approximately two weeks prior to the signing of the final judgment. At the hearing plaintiff sought to introduce additional evidence to show his current income and current expenses. The trial court denied plaintiff's request for a new trial, however, it allowed plaintiff to proffer the evidence.
Initially, we note that a motion for new trial filed prior to the signing of a final judgment is premature. Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3. Cir. 1980). However, it may be concluded that the subsequent signing of the judgment cured the prematurity. Compare Overmier v. Taylor, 475 So.2d 1094 (La. 1985) (motion for appeal filed prior to signing of the judgment).
LSA-C.C.P. art. 1972 provides as follows: Art. 1972. Peremptory grounds
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.
"Due diligence" as set forth in LSA-C.C.P. art. 1972 does not require that a party do all that is possible to discover the evidence. It does require that a party do all that is reasonable to lead to the discovery of the evidence. Barker v. Rust Engineering Co., 428 So.2d 391 (La. 1983).
Here, appellant makes no showing whatsoever that he could not have discovered the evidence prior to the hearing on alimony pendente lite. Accordingly, the trial court did not err in refusing to grant a new trial.
DEFAULT JUDGMENT
Appellant, in his brief, alleges that the trial court erred in failing to grant a preliminary default in this matter. Because there is no motion for preliminary default or anything at all relating to such a motion in the records before us, we are unable to consider appellant's allegations of error regarding such motions.
CONTEMPT
From a reading of the record, it appears that the trial court erroneously found plaintiff in contempt of court for failure to pay alimony pendente lite.
The judgment which finds the plaintiff to be in contempt states:
IT IS ORDERED, ADJUDGED AND DECREED THAT Larry W. Schoenfeld is found to be in contempt of court for refusing to pay alimony pendente lite to his wife Cheryl Hope Schoenfeld as ordered by this Court on May 23, 1989;
However, the trial court's judgment ordering plaintiff to pay alimony pendente lite was signed on June 12, 1988.
In a similar case, Debetaz v. Debetaz, 421 So.2d 379 (La.App. 1 Cir. 1982). The trial court found the husband to be in contempt, saying that he had been ordered to pay alimony on July 31, 1981, which was the day the trial court rendered reasons for judgment, rather than on December 2, 1981, the date a final judgment was signed. In reversing the finding of contempt, the appellate court said:
A contempt proceeding is a quasi-criminal proceeding in which the instances of non-compliance with the court's ruling must be correctly, precisely and explicitly set out, so that, to borrow the language of criminal law, the party cited for contempt may know the nature of the charges against him.
As the judgment in this case also does not contain the correct date of judgment, it, too, must be vacated.
For the above-discussed reasons, the judgments of June 12, 1989, awarding alimony pendente lite, and November 27, 1989, denying the petition for rehearing, are affirmed. The judgment of November 20, 1989, finding plaintiff to be in contempt of court is annulled and set aside. All costs are assessed against appellant.
ANNULLED AND SET ASIDE IN PART AND AFFIRMED IN PART.