Lafleur v. Lafleur

490 So. 2d 1145, 1986 La. App. LEXIS 7279
CourtLouisiana Court of Appeal
DecidedJune 25, 1986
DocketNo. 85-557
StatusPublished
Cited by1 cases

This text of 490 So. 2d 1145 (Lafleur v. Lafleur) 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
Lafleur v. Lafleur, 490 So. 2d 1145, 1986 La. App. LEXIS 7279 (La. Ct. App. 1986).

Opinion

STOKER, Judge.

The defendant, Rodney Lafleur, has appealed the judgment of the trial court ordering him to pay child support arrearages in the amount of $23,600 with legal interest on each support payment from the date it became due until paid, plus attorney’s fees. The trial court additionally found the defendant to be in contempt for failing to pay the court-ordered support, but imposed no sanctions. The trial court also overruled an exception made in open court by defendant excepting to the court’s jurisdiction to hear these matters. We affirm the judgment of the trial court.

FACTS

The plaintiff, Glenda Lafleur (now Gary), and the defendant were married on September 7, 1970 in St. Landry Parish and thereafter established a matrimonial domicile in Plaquemines Parish. Three children were bora of the marriage. Sometime in January of 1981, the Lafleurs separated and Mrs. Lafleur moved to St. Landry Parish. A suit for separation from bed and board was filed in the Twenty-fourth Judi-mal District Court for the Parish of Plaque-mines and a judgment of separation was rendered. That judgment awarded custody of the three minor children to Mrs. Lafleur and the defendant was ordered to pay $666.67 per month, per child, for the support and maintenance of the children.

On April 6, 1983 a petition for divorce was filed by Mrs. Lafleur in the Twenty-seventh Judicial District Court for the Parish of St. Landry. Mrs. Lafleur’s suit was based on more than one year having elapsed since the rendition of the judgment of separation. Judgment by default was rendered against the defendant on May 3, 1983 granting the divorce, awarding permanent custody of the minor children to the plaintiff, and ordering the defendant to pay the sum of $666.67 per month, per child, as support.

On October 28, 1983, subsequent to the filing of a Rule for Past Due Child Support and Contempt, the defendant was ordered to pay $9,482 past due child support and attorney’s fees of $250. Another rule was filed on December 14, 1983, but the sheriff was unable to serve the defendant. During that same month the defendant informed Mrs. Lafleur that he could no longer pay the $2,000 ordered by the court and would send her $600 instead. Defendant paid $600 that month, for all of 1984 and for January and February of 1985.

On January 8, 1985 plaintiff filed the rule which is the subject of this appeal. Plaintiff sought in her rule to have defendant held in contempt for nonpayment of child support and to be granted a judgment making past due unpaid child support payments executory. Subsequent to the filing of the plaintiff’s rule, the defendant filed a rule to reduce the child support. The hearing on that rule was continued without date at the hearing on the plaintiff’s rule.

After the hearing on the plaintiff’s rule, the trial court found that the plaintiff was entitled to the past due child support, being the difference between the $600 paid and $2,000 owed, plus attorney’s fees, as well [1147]*1147as the amount of arrearage as of the first rule in October of 1983. The trial court found the defendant to be in contempt for failing to make his court-ordered payments. The trial court made this ruling, despite the fact that it believed that defendant was unable to pay, because defendant failed to take any recourse to the remedies provided by law for reducing such awards when circumstances alter one’s ability to pay.

ISSUES

The issues presented in this appeal are:

(1) whether the plaintiff and defendant entered into an agreement in December of 1983 to reduce the support payments to $600, which would have modified the order of the court and thus be enforceable against the plaintiff in the maintenance of this action; (2) whether the defendant’s monthly payment of $600, made in good faith, should alleviate any finding of contempt on his part; and (3) whether the Twenty-seventh Judicial District Court was the court of proper venue in which to entertain this action.

I.

With regard to the disposition of the first issue, the trial court, in finding the defendant to be in arrears and making the judgment of support executory, obviously did not feel that any enforceable agreement to reduce the support award existed between the parties. The burden of proving that such an agreement existed fell to the party claiming the agreement, that person being the defendant herein. See Gomez v. Gomez, 421 So.2d 426 (La.App. 1st Cir.1982). The defendant elicited no testimony from the plaintiff showing that she clearly agreed to the reduction. The only testimony from Mrs. Lafleur is that the defendant told her he could no longer pay $2,000 per month and would commence paying only $600 per month in December. At that time the defendant was in arrears for well over $9,000 and Mrs. Lafleur had received nothing toward that indebtedness. As there is no evidence in the record that the parties clearly agreed to the reduction, we cannot say that the trial court abused its much discretion in this factual determination. The governing rule and the rationale for the rule was stated in Vallaire v. Vallaire, 433 So.2d 315 (La.App. 1st Cir. 1983) as follows:

“The general rule in Louisiana is an alimony or child support judgment remains in full force and effect in favor of the party to whom it is awarded until the party ordered to pay it has the judgment modified or terminated by a court. Halcomb v. Halcomb, 352 So.2d 1013 (La. 1977); Ramos v. Ramos, 425 So.2d 989, (La.App. 5th Cir.1983); Seifert v. Seifert, 374 So.2d 157 (La.App. 1st Cir.1979). The policy reason behind this rule is obvious. The law does not want to encourage those owing alimony or child support to become involved in “self-help” by making their own determinations as to when they have satisfied their alimony or child support obligations by some method other than payment in accordance with the court order. Although there are often circumstances warranting a change, and it is often burdensome (in terms of money and time) for the party to go to court to effect the change, the courts of this state are of the opinion this is the only way to prevent large scale abuse by those owing alimony and child support.”

In the absence of any evidence establishing that the parties clearly agreed to the reduction, which would have been an exception to the above stated general rule, it must be said that the reduction was unilateral in nature. The obligation to pay the amount ordered by the court continues until such time as it can be modified by the court. The defendant only recently attempted to do this by rule filed prior to the hearing held in this matter. We find that the trial court was not clearly wrong in finding the defendant in arrears for $23,-600, in addition to the $9,482, minus a credit of $235.89 made executory in October of 1983.

II.

The defendant complains by way of this appeal that, because he made the $600 pay-[1148]*1148merits in good faith to Mrs. Lafleur for well over a year, he could not have been in contempt of court. This rule was the third such rule filed by the plaintiff to make the past due support executory. Mr. Lafleur testified that due to serious financial difficulties encountered in his tugboat business he was unable to pay more than $600 per month to Mrs. Lafleur. He additionally had a new wife and child to care for.

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Bluebook (online)
490 So. 2d 1145, 1986 La. App. LEXIS 7279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lafleur-v-lafleur-lactapp-1986.