Anglade v. Toups

506 So. 2d 173, 1987 La. App. LEXIS 9340
CourtLouisiana Court of Appeal
DecidedApril 13, 1987
DocketNo. 86-CA-711
StatusPublished
Cited by2 cases

This text of 506 So. 2d 173 (Anglade v. Toups) 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
Anglade v. Toups, 506 So. 2d 173, 1987 La. App. LEXIS 9340 (La. Ct. App. 1987).

Opinion

CHEHARDY, Chief Judge.

This appeal arises from a judgment in favor of plaintiff, Isabel Anglade Toups, and against defendant, Franklin D. Toups, for increased child support. The sole jpsue is whether the evidence supported an increase in child support for one minor child from $400 to $1,600 per month.

In 1981, defendant was ordered to pay child support for three children in the amount of $400 for each child. Two of the children, Victoria and Michael, suffer from physical and mental handicaps. Since that time, two of the children, David and Victoria, reached their majority and defendant’s obligation was reduced to $400 per month.

On March 24, 1986, plaintiff filed a petition to increase the child support for Michael, now 12 years old, alleging increases in expenses for his care and increases in defendant’s income. Trial of the matter was held on May 28 and May 29, 1986, following which judgment was rendered in plaintiff's favor.

On appeal, defendant complains that the expenses claimed by plaintiff are either excessive or not substantiated by the evidence. Defendant also contends the trial judge erred in considering the conversion or liquidation of pre-existing stocks as a change per se, and in further considering the separate assets of his second spouse and her children. Finally, defendant asserts the trial court should have given consideration to the minor child’s ownership in stocks in determining the needs of the child.

[175]*175The law in Louisiana regulating parental obligations provides that both parents owe the obligation of support to their children. LSA-C.C. art. 227. A judgment awarding child support is subject to modification at any time, but the party seeking the change must show a change in circumstance in the needs of the person requiring it as compared to the circumstances of the person obligated to pay. LSA-C.C. art. 231; Duhe v. Duhe, 466 So.2d 595 (La.App. 5 Cir.1985). However a noncustodial parent will not be relieved of his primary obligation to support his children because of an unstable financial condition brought about by himself. Duhe v. Duhe, id; Ledet v. Ledet, 416 So.2d 1309 (La.App. 1 Cir.1982); Dugas v. Dugas, 374 So.2d 1278 (La.App. 3 Cir.1979).

In deciding whether a modification is warranted, the court is not restricted to consideration of free income, but must consider the totality of the circumstances. Kuhn v. Kuhn, 420 So.2d 1026 (La.App. 5 Cir.1982). Included among the factors to be considered in apportioning the custodial spouse’s obligation are the customary duties performed and services rendered by that spouse on a daily basis. Kuhn v. Kuhn, id; Duhe v. Duhe, supra. As to whether or not the law allows the assets of the child to be considered, there is jurisprudence to the effect that a natural obligation of the father ceases after dissolution of the marriage, if his children have property from which sufficient income may be derived to provide for their subsistence and education. Succession of Fontano, 196 La. 775, 200 So. 142 (1941). Whether that principle applies to deciding if a change of circumstance has occurred has not been specifically addressed by the courts. In recent years when the issue was raised in a proceeding for modification, the substantive issue was pretermitted and the Fonta-no case was held inapplicable because the parent failed to prove a change of circumstance related to the child’s property. See: Bradford v. Bradford, 393 So.2d 181 (La. App. 1 Cir.1980), and Hendrick v. Hendrick, 470 So.2d 449 (La.App. 1 Cir.1985).

The facts in this case show plaintiff first obtained a judgment for child support in 1981. Since then, two of the children reached their majority reducing the award from $1,200 per month to $400 per month. She had not sought an increase until filing the present action. Both of the older children still reside with plaintiff and she receives no financial support for the older handicapped child. To support her petition for an increase, plaintiff alleges a change in circumstance for Michael’s speech therapy, private school, summer camp and medical costs, as well as the increased cash flow of the father. Plaintiff, a real estate agent, introduced into evidence her expense sheet, a tuition plan for Crescent Academy, a statement of account from Jefferson Speech and Language Center, defendant’s Internal Revenue Service reports from 1981 to 1985, a list of stocks owned by defendant and a bank statement from Commercial Bank. On her expense sheet she lists her monthly income as $3,325.23 and her separate expenses as $5,204.17. The expenses listed for Michael totaled $2,323.73. Her assets totaled $240,750, including stocks, cash, savings, a note and real estate. Plaintiff’s liabilities totaled $162,000, including three mortgages, a car note and a loan made on behalf of the older handicapped child.

The testimony reveals that plaintiff’s income and assets remain basically the same since the award in 1981. The exception is a sale of stock for $24,000 in 1986 which was totally expended on the family expenses, including $3,000 for medical expenses for the older handicapped child.

In regard to the minor child, plaintiff testified that Michael suffers from a learning disability and has an I.Q. of approximately 80. He also suffers from epilepsy and other related medical and psychological problems. She explained that Michael had been attending public school, but upon reaching the age of 12 was no longer able to remain in the public school system. On the advice of the professionals involved with Michael, plaintiff enrolled him in Crescent Academy. The tuition at the school is $391.66 per month. Because of his handicap, plaintiff testified Michael also requires [176]*176a baby sitter two days a week so that she can work, at a cost of $200 per month.

While she admitted her medical insurance pays for some of Michael’s treatment, she noted her deductible is $1,000, and further stated the insurance does not cover his neurological testing. She testified that she incurs a weekly expense of $75 for treatment by a psychologist and/or psychiatrist, and an average monthly expense of $112 for speech therapy. Excluding pediatric expenses or drugs (both of which Michael receives free from his physician godfather and defendant), Michael’s monthly medical costs averaged $331 for the first five months of 1986.

Plaintiff testified that Michael’s attendance at summer camp is a necessity because he requires continued mental stimulation to prevent regression. She stated those costs for camp have increased to $600. On cross-examination, she explained the particular camp was also chosen by the child’s psychologist and social worker.

In reviewing defendant’s circumstances, the record reflects the defendant is a practicing physician who operates his office four days a week. His medical specialties are general surgery and general medicine. However, the testimony shows he is unable to practice surgery since he cannot obtain medical malpractice insurance due to numerous claims. For the years 1980 to 1985, he was placed on probation by the Louisiana Board of Medical Examiners for his conduct in an unrelated matter. In 1983 he remarried and resides with his second wife and her two children.

Defendant contends his income has not increased since the 1981 award. His tax returns for 1981 show a total income of $32,817.66 and a business income of $54,-024. In 1985 he reported his total income as $53,941.10 and his business income of $56,720.

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Related

Toups v. Toups
573 So. 2d 1164 (Louisiana Court of Appeal, 1991)
Anglade v. Toups
508 So. 2d 57 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
506 So. 2d 173, 1987 La. App. LEXIS 9340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anglade-v-toups-lactapp-1987.