Abbott v. Dunlap

541 So. 2d 995, 1989 WL 31788
CourtLouisiana Court of Appeal
DecidedApril 6, 1989
Docket87-1357
StatusPublished
Cited by8 cases

This text of 541 So. 2d 995 (Abbott v. Dunlap) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. Dunlap, 541 So. 2d 995, 1989 WL 31788 (La. Ct. App. 1989).

Opinion

541 So.2d 995 (1989)

Patricia ABBOTT, Plaintiff-Appellant,
v.
Gary S. DUNLAP, Defendant-Appellee.

No. 87-1357.

Court of Appeal of Louisiana, Third Circuit.

April 6, 1989.
Writ Denied June 2, 1989.

*996 Preis, Kraft, Laborde & Daigle, Ralph E. Kraft, Lafayette, for plaintiff-appellant.

Gary S. Dunlap, Lafayette, in pro. per., Gerald J. Block, Lafayette, for defendant-appellee.

Before STOKER, DOUCET and KNOLL, JJ.

DOUCET, Judge.

This appeal addresses the propriety of a trial court's judgment which reduced a father's child support payments for one child from $1,400 per month to $900 per month.

Patricia Abbott and Gary Dunlap were divorced on April 6, 1982. In the divorce proceedings, Dunlap agreed to pay $1,400 per month child support and agreed that Abbott would have custody of their minor daughter. Dunlap further agreed to pay the educational expenses of the child through the date of college graduation. These agreements were incorporated into the judgment of divorce.

On September 3, 1982, Abbott and Dunlap executed a partition of community property in which Dunlap stated that as additional consideration for the execution of the partition, he agreed to pay $1,400 per month child support and again consented to pay the minor child's educational expenses through the date of college graduation. In return for this agreement, Dunlap was allowed to declare his minor child as a dependent on his state and federal income tax returns.

On April 2, 1987, Dunlap filed a rule to reduce his child support payments, alleging *997 that his circumstances had changed for the worse and that his salary and income were greatly reduced as a result of the depression in the oil industry. Dunlap further alleged that Abbott's circumstances had also changed in that she was now employed. Mover sought a reduction in child support payments to the sum of $400 per month.

This rule was heard on June 15, 1987. Affidavits of income and expenses were introduced into evidence by both parties. The testimony of both parties was heard and a transcript of that testimony was prepared. Ms. Abbott also proffered to the court the partition of community property that had been executed by the parties on September 3, 1982.

The trial court found that Dunlap had a salary decrease, that Abbott's affidavit of expenses was inflated, and that the child required less than $1,400 per month in support. The court, on June 29, 1987, rendered a judgment reducing the amount of child support payments from $1,400 per month to $900 per month and ordering that the cost of the proceedings be paid by Ms. Abbott.

After Ms. Abbott's motion for a new trial was denied, Ms. Abbott appealed asserting five specifications of error. Mr. Dunlap has neither answered the appeal nor appealed from the judgment.

SPECIFICATION OF ERROR NO. 2

By this specification of error appellant asserts that the trial court erred in failing to allow the introduction into evidence of the partition of community property executed by the parties. Appellant asserts that this document contains evidence of the agreement of the parties with respect to what the needs of the child were at the time of the signing of the document, as well as evidence of the parties' contractual intent to be bound by the terms of the document as it relates to child support.

Abbott proffered into evidence a copy of the partition of community property she entered into with Dunlap after their judgment of divorce. The purpose of this evidence was to establish that despite the needs of the minor child in 1982, which were not judicially determined, Dunlap covenanted to pay child support in the sum of $1,400 per month as further consideration for the partition agreement. The trial court found that the partition agreement was not relative to the issues of the case. We find this evidence relevant and material to the rule for reduction instigated by Dunlap, and the trial court's exclusion of this evidence was clearly erroneous.

The agreement between Dunlap and Abbott, although duplicative of the divorce judgment in many respects, was entered into after the divorce and the language pertinent herein was inserted as additional consideration for entering into the partition. Under the holding of Dubroc v. Dubroc, 388 So.2d 377 (La.1980), it is evident that the covenant between Dunlap and Abbott relative to child support was not adverse to the purpose and intent of child support as envisioned by the Civil Code. See also Hogan v. Hogan, 465 So.2d 73 (La.App. 5th Cir.1985), writ denied, 468 So. 2d 1207 (La.1985). Accordingly, we find the contract provision enforceable. Nevertheless, because the contract relative to child support did not prohibit Dunlap from seeking a decrease (and Abbott from seeking an increase), we ultimately analyze the case as whether Dunlap proved a sufficient change of circumstances, utilizing the original agreement as a touchstone of what the parties considered as a reasonable amount to meet the minor child's needs in 1982.

SPECIFICATION OF ERROR NO. 3

By this specification of error, appellant asserts that the trial court erred in its reduction of the portion of the car note and the portion of the house note allocated to the child, absent any testimony to the effect that such allocation or amount was unreasonable.

Abbott allocated 60% of the car note to the minor child, reasoning that more than half the time she used the car to transport the child to and from gymnastics, music lessons, school, and other school related activities. Abbott also allocated 50% of the house note ($121.21 per month) to the minor child. The trial court commented that *998 Abbott would have been purchasing the car and house anyway, and therefore found that only 33-1/3% of each note was attributable to the minor child.

The reasonableness of Abbott's allocation of the car and house notes was not attacked to any degree by Dunlap. Even though the jurisprudence has not firmly addressed how the allocation of items such as this should be done, see Osborne v. Osborne, 512 So.2d 645, 652 (La.App. 2nd Cir.1987), based on the record before us, we find the trial court's lowered allocation to the minor child is not supported by the evidence.

Moreover, it is well entrenched in Louisiana jurisprudence that children living with the mother are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); Davis v. Davis, 428 So.2d 1195 (La.App. 5th Cir.1983); Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2nd Cir.1981); Hogan, supra. In the present case the record reflects that Dunlap lives in Lafayette in a three bedroom condominium in Westgate Condominiums for which he pays $700 per month, has two lots of investment property in Le Triomphe Resort, maintains a membership in Red Lerille's Health Club at a cost of $60 per month, and holds season tickets to athletic events at USL and LSU. Certainly, the amounts of the house and car notes and Abbott's allocation of them are not unreasonable in light of these facts.

For the foregoing reasons, we find that the trial court's lowered allocation for the portions of the house and car notes attributable to the minor child was clearly wrong.

SPECIFICATION OF ERROR NO. 5

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Cite This Page — Counsel Stack

Bluebook (online)
541 So. 2d 995, 1989 WL 31788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-dunlap-lactapp-1989.