Lindsey v. Lindsey

546 So. 2d 1332, 1989 WL 73568
CourtLouisiana Court of Appeal
DecidedJune 28, 1989
Docket88-349
StatusPublished
Cited by5 cases

This text of 546 So. 2d 1332 (Lindsey v. Lindsey) 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
Lindsey v. Lindsey, 546 So. 2d 1332, 1989 WL 73568 (La. Ct. App. 1989).

Opinion

546 So.2d 1332 (1989)

Betty Bordelon LINDSEY, Plaintiff-Appellee,
v.
Bobby G. LINDSEY, Defendant-Appellant.

No. 88-349.

Court of Appeal of Louisiana, Third Circuit.

June 28, 1989.

*1333 Colleen McDaniel, Lafayette, for plaintiff/appellee.

Marx & Marx, Paul C. Marx, Lafayette, for defendant/appellant.

Before GUIDRY, FORET and DOUCET, JJ.

DOUCET, Judge.

This is an appeal from an amended judgment, signed February 11, 1988, which ordered appellant, Bobby G. Lindsey, to pay permanent alimony to appellee, Betty Bordelon Lindsey, in the amount of $650.00 per month. We affirm.

This case originally came before the Fifteenth Judicial District Court in the form of a Petition for Separation filed by Mrs. Lindsey against Mr. Lindsey. The separation was granted and Mr. Lindsey was ordered to pay alimony pendente lite in the amount of $735.00 per month by a judgment signed November 21, 1986. On November 30, 1987, a judgment was signed which decreed a divorce between the parties and ordered Mr. Lindsey to continue paying alimony pendente lite until the rule for permanent alimony could be heard. The parties divided the community assets by mutual consent. Mrs. Lindsey's rule for permanent alimony and to make past due alimony executory was later heard, and by a judgment signed January 14, 1988, Mrs. Lindsey was decreed to be free from fault and Mr. Lindsey was ordered to pay her permanent alimony in the amount of $650.00 per month. The judgment also awarded Mrs. Lindsey $2,020.00 in arrearages. Mr. Lindsey filed a motion for a new trial. A judgment denying the motion for new trial on the basis that the issue of arrearages had been resolved was signed on February 11, 1988. On that same day, a judgment was signed amending the January 14, 1988 judgment. The amended judgment dismissed the rule for arrearages and ordered Mr. Lindsey to pay Mrs. Lindsey permanent alimony in the amount of $650.00 per month. From this adverse judgment Mr. Lindsey appealed, asserting four assignments of error.

PERMANENT ALIMONY

The circumstances in which permanent alimony may be granted and the factors to be considered in setting the award are set out in La.C.C. art. 160, which provides in pertinent part as follows:

"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;
*1334 (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."

In reference to the above article, in Harper v. Harper, 496 So.2d 1369 (La.App. 3rd Cir.1986), writ denied, 499 So.2d 87 (La. 1987), this court stated:

"We note that the later version of Article 160 refers to `sufficient means for support' whereas the former wording of the article referred to `sufficient means for his or her maintenance.' We attach no significance to this change in terminology and find the items encompassed by the term support to be: food, shelter, clothing, reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability caused by alimony. See Buxton v. Buxton, 458 So.2d 606 (La.App. 3rd Cir. 1984), and cases cited therein."

In the instant case the trial court's finding that Mrs. Lindsey was free from fault has not been challenged. Thus, the issues in this case deal with Mrs. Lindsey's entitlement to permanent alimony and the amount of that alimony.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error appellant asserts that the trial court erred in calculating Mrs. Lindsey's income based on her working an average of 30 hours per week.

A review of Mrs. Lindsey's affidavit of income and expenses reveals that she is working 30 hours per week at $5.75 per hour for a total of $172.50 per week. In her affidavit, Mrs. Lindsey multiplied this weekly total by 4.25 weeks to get a monthly total of $733.00. Mrs. Lindsey's payroll deductions on that amount equal $178.66, for a net total of $554.34 per month.

During her testimony, Mrs. Lindsey stated that she sometimes works three or four extra hours per week at the same hourly rate, depending on whether other workers can't show up for work. She also stated that she expected to be working more during the month of December, since that was the busy season for the store where she was employed.

At the hearing on this matter, the trial court stated that Mrs. Lindsey's weekly income should be calculated based on her working 30 hours per week, since none of the extra hours mentioned by Mrs. Lindsey were guaranteed. The trial court calculated Mrs. Lindsey's gross monthly income to be $747.50. Appellant asserts that Mrs. Lindsey's income should be calculated based on 33 hours per week for a gross monthly income of $815.92.

It is well settled that, where alimony awards are concerned, the trial court is vested with much discretion and that, on review, those awards will not be modified unless appellant can clearly demonstrate that the trial court abused its considerable discretion or committed manifest error in its factual determinations. Harper v. Harper, supra; Romero v. Romero, 463 So.2d 768 (La.App. 3rd Cir.1985), writ denied 465 So.2d 735 (La.1985); Buxton v. Buxton, 458 So.2d 606 (La.App. 3rd Cir.1984); Cunningham v. Cunningham, 448 So.2d 910 (La.App. 3rd Cir.1984).

As stated by the Louisiana Supreme Court in Pearce v. Pearce, 348 So.2d 75 (La.1977):

"In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge *1335 having observed the demeanor of the witnesses is in the better position to rule on their credibility. The factual findings of the trial court are therefore to be accorded very substantial weight on review." (citation omitted).

In the present case, the trial court felt that the use of 30 hours per week in calculating Mrs.

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Bluebook (online)
546 So. 2d 1332, 1989 WL 73568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lindsey-v-lindsey-lactapp-1989.