Abercrombie v. Abercrombie

434 So. 2d 1139, 1983 La. App. LEXIS 8928
CourtLouisiana Court of Appeal
DecidedJune 6, 1983
DocketNo. 15457-CA
StatusPublished
Cited by4 cases

This text of 434 So. 2d 1139 (Abercrombie v. Abercrombie) 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
Abercrombie v. Abercrombie, 434 So. 2d 1139, 1983 La. App. LEXIS 8928 (La. Ct. App. 1983).

Opinion

JASPER E. JONES, Judge.

The plaintiff in this action for child support and exclusive occupancy of the family home is Sue Abercrombie and the defendant is her former husband, Hugh Thomas Abercrombie.1 After a trial on the merits in this summary proceeding the district judge awarded plaintiff exclusive use of the family home and ordered defendant to pay child support of $225 per month for each of his two children, subject to a credit of $120 per month until the former family home has been disposed of either by sale or community property settlement. The defendant was also ordered to maintain health insurance on the children. The defendant appeals and we affirm.

The Facts

Sue and Hugh were married on July 4, 1970. They have two children, Jill, born December 7, 1973, and Nicholas, born August 20,1978. The parties lived together at Sibley, Webster Parish, Louisiana, until Hugh abandoned the family home in October, 1980.

Following their physical separation the parties reached an informal agreement as to support. Under the initial agreement appellant paid almost his entire net income to Sue. However, they later adjusted their agreement so that appellant was paying Sue $60 per month and the first mortgage on the family home. The total of these two expenditures is approximately $300 per month.

Sue obtained a judicial separation and was awarded custody of the children on January 30,1981. She obtained a judgment of divorce and was again awarded custody on November 6, 1981. Sue did not seek child support in either proceeding because she was satisfied with the informal agreement. Sue and the children have continued to live in the former family home since appellant moved out in October, 1980.

On December 2,1981, appellant borrowed $24,000 secured by a second mortgage on the former family home. From the proceeds of this loan Hugh paid approximately $5,000 to Sue allegedly pursuant to an agreement to purchase her interest in the home subject to her right to remain there as long as she desired.

The plaintiff commenced this action on September 9, 1982. The matter was tried on November 9, 1982.

Appellant was employed at a monthly salary of $1,700 and his monthly net was $1,322.70. Hugh had remarried in April, 1982, and his new wife was unemployed at the time of the trial. Hugh and his new wife were expecting their first child ap[1141]*1141proximately two weeks after the date of the trial. They were residing in a recently purchased house trailer on which they pay monthly payments of $275. Hugh had bought a new car on which the monthly payment is $316. The payments on the loan secured by the second mortgage are $360 per month. The payment on the first mortgage on the family home is $240 per month.

Sue resides in the former family home. She is employed at a salary of $800 per month from which she nets $659.60. She claims total monthly expenses of $2,022.

After the trial on the merits the district judge awarded exclusive use of the family home to plaintiff. He also ordered defendant to pay child support of $225 per month for each child and to maintain health insurance on the children at a cost of $30 per month. The child support payments were made subject to a credit of $120 per month while appellant pays the mortgages on the family home and until “the former marital home has been disposed of either by sale or community property settlement.”

The defendant appeals that judgment and assigns two errors. He contends the district judge erred in: 1) increasing child support without a showing of a change in circumstances justifying the change; and 2) awarding excessive child support. He also contends, without any formal assignment of error, that plaintiff should not have been awarded exclusive use of the former family home.

We amend the judgment slightly for the sake of clarity and as amended affirm the judgment.

Assignment # 1

Appellant relies on the rule that the party seeking a change in child support previously fixed by even a consent judgment must show a change in circumstances supporting an alteration of the prior award. See Cole v. Cole, 338 So.2d 152 (La.App. 2d Cir.1976). He contends this rule should be extended to cases, such as the present, where there is no judgment but only an informal agreement as to child support. Thus, under appellant’s proposed rule, once parties have extrajudicially agreed to an amount of child support any party requesting a change in the amount would be required to show a change in circumstances.

Appellant’s rule would effectively fix child support at the informally agreed upon level. As a consequence parties would have to be much more contentious in negotiating such agreements because of their inaltera-bility without a showing of a change in circumstances. A payor spouse could not initially agree to a generous amount as it could not be reduced if it proved to be an excessive financial strain. Comparably, a payee spouse would be forced to demand the highest amount which might be necessary for support, rather than a lesser amount that would probably be required, as the possibility of obtaining an increase would be foreclosed.

Informal agreements as to child support should be encouraged to the fullest extent possible. The extended rule proposed by appellant would have the contrary effect. The penalty for compromise imposed by appellant’s proposed rule is so harsh that it would virtually destroy the possibility of informal agreement, particularly among knowledgeable parties. We decline to establish this strong disincentive to compromise and cooperation in this area which is already so often characterized by petty disputes and acrimony.

This assignment of error lacks merit.

Assignment # 2

Through this assignment appellant contends that the district judge awarded excessive child support.

Child support is granted in proportion to the needs of the children and the circumstances of the parent who is to pay. Ducote v. Ducote, 339 So.2d 835 (La.1976); Litton v. Lewis, 409 So.2d 1254 (La.App. 2d Cir.1982). The trial judge has much discretion in fixing child support and his award will not be disturbed absent a clear abuse of that discretion. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir.1979); Silas v. Silas, 399 So.2d 779 (La.App. 3d Cir.1981); writ denied, 404 So.2d 278 (La.1981).

The appellant does not contend that the award exceeds the needs of his children. [1142]*1142He contends that the award is excessive in light of his circumstances and ability to pay.

Appellant contends that the judgment of the district court requires him to pay $960 per month for child support. Appellant calculates his child support obligation under the judgment as follows:

Child support for Jill - $225.00
Child support for Nicholas- 225.00
Health insurance- 30.00
1st mortgage on former family home- 240.00
2nd mortgage on former family home- 360.00
$1,080.00
Less credit for mortgage payments — 120.00
$ 960.00

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Bluebook (online)
434 So. 2d 1139, 1983 La. App. LEXIS 8928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abercrombie-v-abercrombie-lactapp-1983.