In Re Tutorship of Blanque

700 So. 2d 1077, 1997 WL 597974
CourtLouisiana Court of Appeal
DecidedSeptember 30, 1997
Docket97-CA-249, 97-CA-250
StatusPublished
Cited by6 cases

This text of 700 So. 2d 1077 (In Re Tutorship of Blanque) 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
In Re Tutorship of Blanque, 700 So. 2d 1077, 1997 WL 597974 (La. Ct. App. 1997).

Opinion

700 So.2d 1077 (1997)

In re TUTORSHIP OF Jennifer Lynn BLANQUE.

Nos. 97-CA-249, 97-CA-250.

Court of Appeal of Louisiana, Fifth Circuit.

September 30, 1997.

*1078 Joseph C. Bartels, William A. Pigg, New Orleans, for Appellant David Blanque.

Terence L. Hauver, New Orleans, for Appellee Kathleen Dwyer.

Before GAUDIN, GRISBAUM and CANNELLA, JJ.

CANNELLA, Judge.

Defendant, David Blanque, appeals from a judgment in favor of his severely disabled twenty year old daughter, Jennifer Lynn Blanque, which orders him to pay $600 per month in support and one-half of any uncovered medical expenses and attorney fees. For the reasons which follow, we reverse in part, as to attorney fees, and affirm the remainder of the judgment.

Jennifer, the daughter of Kathleen Dwyer and David Blanque, was born on March 27, 1977. In previous litigation between Jennifer's parents, it was clearly established that Jennifer is severely disabled. Blanque v. Blanque, 95-2012 (La.App. 4th Cir. 4/3/96), 671 So.2d 567. She is classified as multi-handicapped with moderate mental impairment, orthopedic handicaps and seizure disorder. She has a history of grand mal seizures and a diagnosis of multiple congenital anomalies. She has ocular myopia and multiple orthopedic problems, including congenital hip dislocation, recurrent clubbed feet in spite of surgical correction, bilateral knee *1079 dislocation on the left, shortening of the left femur and tibia, displacement of the patella and two inch leg length discrepancy. She also has microcephaly and congenital left facial paralysis. She functions at an age equivalent of about four years, one month. Blanque v. Blanque, supra. Jennifer's parents were divorced on December 23, 1982 and her mother was granted permanent custody. Jennifer's parents have been in court on numerous occasions over the amount of support which her father should pay for her. The last time resulted in a court order for him to continue support payments of $750 per month until Jennifer reaches age nineteen. Blanque v. Blanque, supra.

On February 23, 1995, Kathleen Dwyer instituted tutorship proceedings and secured an order confirming her as Jennifer's tutrix.[1] On April 16, 1996, Kathleen Dwyer, as Jennifer's tutrix, filed a Rule to Show Cause against David Blanque for further support for Jennifer. It was determined, based on previous rulings by the Fourth Circuit Court of Appeal, Blanque v. Blanque, supra, and the Supreme Court, Blanque v. Blanque, 96-1053 (La.5/3/96), 672 So.2d 697, that any support to Jennifer, as a major, would be under La. C.C. art. 229, Reciprocal Alimentary Duties of Ascendants and Descendants, and not under the child support articles for minor children.[2]

On October 22, 1996, following trial, the district court ruled in favor of Jennifer and ordered David Blanque to pay $600 per month in her support and 50% of any uncovered medical bills. It also ordered him to pay $2,500 in attorney fees to Kathleen Dwyer on behalf of Jennifer. Judgment was signed on October 28, 1996. It is from this judgment that David Blanque now appeals.

On appeal David Blanque assigns three errors in the trial court ruling. First, he argues that under La. C.C. art. 229 he is only responsible for providing a major descendant with the necessities of life of food, clothing shelter and medical care, and then only if the descendant is found to be in need, that is, unable to obtain these necessities elsewhere. He argues that Jennifer is not "in need" since she has other means of obtaining these necessities. He contends that Jennifer is not in need of shelter because she lives with her mother in her mother's home. He further argues that she is not in need of the other necessities because she is entitled to Medicaid, for her medical care, and Social Security income (SSI), up to $470 per month, to cover any other necessities.

Next, David Blanque argues, in the alternative, that if it is determined that Jennifer is in need, then the amount awarded, $600 per month, is excessive. He argues that the total amount of Jennifer's monthly expenses is $1,069.79. Therefore, his one-half share would only be $535. Further, he argues that a number of the expenses allowed by the trial court, like transportation and entertainment, are not recoverable under La. C.C. art. 229. Thus, he argues, his share should be further reduced.

Finally, he argues that the trial judge erred in condemning him to pay attorney fees to Kathleen Dwyer. He argues that there is no legal authority for such an award. Therefore, absent statutory authority or agreement between the parties, attorney fees cannot be awarded.

*1080 Kathleen Dwyer argues, to the contrary, that she submitted a documented expense list establishing that the cost of Jennifer's monthly care is $2,501.70 and that the judgment against David Blanque, ordering him to pay $600 per month, does not nearly approach one-half of Jennifer's bills. She further disagrees with David Blanque's arguments regarding Jennifer's lack of need by pointing out that the parental responsibility to the child is primary and that federal aid through SSI is supplemental only. Finally, she argues that the award of attorney fees was proper because Jennifer is entitled to her father's support, which must include the cost of obtaining that support.[3]

The pertinent code articles applicable to this case, where the child is over nineteen years of age, are La. C.C. arts. 229 — 231. They state:

Art. 229. Reciprocal alimentary duties of ascendants and descendants
Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal. This reciprocal obligation is limited to life's basic necessities of food, clothing, shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.
Art. 230. Scope of alimentary obligation
A. By alimony we understand what is necessary for the nourishment, lodging, and support of the person who claims it.
B. It includes the education, when the person to whom the alimony is due is a minor, or when the person to whom alimony is due is a major who is a full-time student in good standing in a secondary school, has not attained the age of nineteen, and is dependent upon either parent.
Art. 231. Basis for granting alimony
Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.

The reciprocal alimentary obligation provided in La. C.C. art. 229, between ascendants and descendants is different from the child support obligation of parents for their minor children. La. C.C. art. 227; La. R.S. 9:315 et seq. The obligation is not nearly as broad, applies only to those in need and encompasses only the basic necessities of food, clothing, shelter and health care. Banquer v. Banquer, 554 So.2d 790 (La.App. 5th Cir.1989). It generally does not include educational expenses or the other special expenses of a minor's rearing. Suire v. Miller, 363 So.2d 945 (La.App. 3rd Cir.1978). Further, the obligation only arises upon proof of the inability to obtain these necessities from other sources. Banquer v. Banquer, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
700 So. 2d 1077, 1997 WL 597974, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-tutorship-of-blanque-lactapp-1997.