Cenac v. Cenac

538 So. 2d 646, 1988 La. App. LEXIS 2818, 1988 WL 141472
CourtLouisiana Court of Appeal
DecidedDecember 20, 1988
DocketNo. CA 87 0889
StatusPublished
Cited by3 cases

This text of 538 So. 2d 646 (Cenac v. Cenac) 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
Cenac v. Cenac, 538 So. 2d 646, 1988 La. App. LEXIS 2818, 1988 WL 141472 (La. Ct. App. 1988).

Opinion

SAVOIE, Judge.

This is an appeal from the trial court of a judgment setting amounts of child support and periodic post-divorce alimony.

FACTS

Monique and Christopher Cenac were married in 1969 while Christopher Cenac was in medical school. Mrs. Cenac at that time had graduated from college and was employed by New Orleans Public Service as a Home Economist. She worked until 1973 when she resigned pending the birth of their first child. She has not worked since 1973, and has had two additional children during the marriage. Dr. and Mrs. Cenac were divorced in 1985.

On November 25, 1985, the trial court issued a judgment ordering Dr. Cenac to pay $617.71 a month alimony, (terming it pendente lite), along with $972.50 child support per month, per child.1 The trial court limited the duration of the alimony to one year. This judgment was not appealed, and thus became final, and will not be addressed by this court.2 See LSA-C.C.P. art. 3943, setting the time for appeals in alimony award cases.

At the time of this initial judgment, Mrs. Cenac and the three minor children were residing in Oak Grove Plantation, a home [647]*647with a $15,000.00 a month mortgage. Subsequent to the 1985 judgment, Dr. Cenac filed bankruptcy proceedings due to large losses in oil related investments. As a result of those proceedings, Dr. and Mrs. Cenac lost Oak Grove Plantation and Mrs. Cenac was forced to search for a new residence. One of the specific reservations provided for in the judgment of the trial court was for her to reapply for a change in the alimony amounts should she and the children have to find a new residence. The judgment states:

Reserving unto Monique Ellender Cenac the right to seek further alimony at that time, this alimony is based upon the current expenses of Monique Ellender Cenac and upon the basis that she and the minor children are residing in Orange Grove, any subsequent move from that domicile to a new domicile will entitle the parties to re-litigate support payments relative to housing and related expenses.

After the year had run, and the house had been lost, Mrs. Cenac filed rules to reinstate and increase child support and alimony amounts based upon her change in circumstances surrounding her need to find new housing.

The trial court, after hearing evidence on the relative financial positions of the parties issued a judgment on February 6, 1987 ordering Dr. Cenac to pay to Mrs. Cenac $600.00 in periodic post-divorce alimony (a decrease of $17.50) and child support of $1,172.50 per month, per child (an increase of $200.00 per month, per child).3 It is from this judgment that Mrs. Cenac has appealed, claiming that the amounts of the awards are insufficient under the facts and law, and as such, amount to error on the part of the trial court.

LAW

Periodic, post-divorce alimony is governed by LSA-C.C. art. 160, which sets out the requirements for obtaining the award, and the considerations for setting the amount of the award. LSA-C.C. art. 160 states in part:

A. (1) When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse.
(2) In determining the entitlement and amount of alimony after divorce, the court shall consider:
(a) The income, means, and assets; of the spouses:
(b) The liquidity of such assets;
(c) The financial obligations of the spouses, including their earning capacity;
(d) The effect of custody of children of the marriage upon the spouse’s earning capacity;
(e) The time necessary for the recipient to acquire appropriate education, training, or employment;
(f) The health and age of the parties and their obligations to support or care for dependent children; and
(g) Any other circumstances that the court deems relevant.
(3) In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
(4) Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage.

LSA-C.C. art. 160(A)(1) provides that a spouse is entitled to periodic alimony if that spouse had not sufficient means for their support. LSA-C.C. 160(A)(2)(a) through (g) and (3) provide the factors to be considered in setting the amount that the claiming spouse is entitled to. Relevant particularly to this case are LSA-C.C. art. 160(A)(2)(f) and art. 160(A)(3).

LSA-C.C. art. 160(A)(2)(f) instructs the court to take into consideration the obligations to support or care for dependent children. Mrs. Cenac was granted custody [648]*648of three minor children. As such, she is responsible for the care, nurturing, supervision and discipline of the children. A father has the obligation to provide housing and a standard of living which his station in life will provide. See Legendre v. Legendre, 451 So.2d 1330, 1333 (La.App. 1st Cir.1984). The father without custody does this by paying alimony and child support to his prior spouse and children.

Further, LSA-C.C. art. 160(A)(3) instructs the court to consider the claimant spouse’s earning capacity in deciding whether the spouse can claim alimony, but qualifies this consideration by instructing the court to consider this capacity “in light of all other circumstances.” One of the circumstances which is considered must include those obligations alluded to in LSA-C.C. art. 160(A)(2)(f).

The trial court is vested with great discretion in deciding the weight of those circumstances, and therefore the amount of the payments. The ruling will not be disturbed absent abuse of that discretion. See Gerstner v. Stringer, 205 La. 791, 18 So.2d 195 (1944).

In the most recent supreme court case of Hegre v. Hegre, 483 So.2d 920 (La.1986), the court looked at factors to be considered in setting the amount of alimony that the claiming spouse was entitled to. In Hegre, the court looked at the relative position of the spouses. Dr. Hegre’s income and earning capacity were substantial, just as Dr. Cenac’s in this case. Dr. Hegre was an individual medical practitioner who had recently been discharged in bankruptcy. His practice had grossed $330,364.75 in eleven months of 1983. Dr. Cenac also has grossed $273,215.00 in his practice in 1985. Dr. Hegre paid most of his expenses through the practice just as Dr. Cenac does. All of these factors were weighed by the Court against the needs of Mrs. Hegre.

As to Mrs. Hegre’s status, she had given up a position as a nurse when she became pregnant with her and Dr. Hegre’s first child. She, just as Ms. Cenac, had not worked since that time. She, just as Ms. Cenac, had no other means of support.

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Related

Martin v. Martin
573 So. 2d 620 (Louisiana Court of Appeal, 1991)
Hogan v. Hogan
549 So. 2d 267 (Supreme Court of Louisiana, 1989)
Cenac v. Cenac
538 So. 2d 651 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
538 So. 2d 646, 1988 La. App. LEXIS 2818, 1988 WL 141472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cenac-v-cenac-lactapp-1988.