Martin v. Brasseaux

422 So. 2d 548
CourtLouisiana Court of Appeal
DecidedNovember 12, 1982
Docket8732
StatusPublished
Cited by9 cases

This text of 422 So. 2d 548 (Martin v. Brasseaux) 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
Martin v. Brasseaux, 422 So. 2d 548 (La. Ct. App. 1982).

Opinion

422 So.2d 548 (1982)

Mary Diana MARTIN, Plaintiff-Appellee,
v.
Ernest Louis BRASSEAUX, Defendant-Appellant.

No. 8732.

Court of Appeal of Louisiana, Third Circuit.

November 12, 1982.

*549 Gauthier & Cedars, Stanford B. Gauthier, II, Breaux Bridge, for defendant-appellant.

Mary Diana Martin, in pro per.

Before FORET, CUTRER and STOKER, JJ.

FORET, Judge.

Mary Diana Martin (plaintiff) brought a rule to show cause why she should not be granted the permanent care, custody and control of her minor child, Paula James Brasseaux (Paula), born during her marriage to defendant, Ernest Louis Brasseaux, and why defendant should not be ordered to pay her child support for Paula.[1]

*550 The trial court, after hearing plaintiff's rule, rendered judgment ordering defendant to pay plaintiff $8,100 for child support representing an award of $100 per month for 81 months commencing July 12, 1974, and ending April 12, 1981. The trial court further ordered defendant to pay plaintiff $116 per month for child support commencing April 12, 1981.

Defendant appeals and raises the following issues:

(1) Whether the trial court erred in awarding plaintiff child support for the time period commencing July 12, 1974 and ending April 12, 1981, and if not,
(2) Whether the trial court erred in making that award effective beginning on July 12, 1974.

Defendant takes no appeal from that portion of the trial court's judgment ordering him to pay plaintiff $116 per month for child support, nor has plaintiff appealed or answered the appeal. Thus, that portion of the trial court's judgment is final. Because of our decision herein, we will pretermit any discussion of the second issue raised by defendant.

FACTS

Plaintiff and defendant were married in St. Martin Parish on January 15, 1966, and Paula, who is presently 14 years old, was the only child born of this marriage. Plaintiff filed a "PETITION FOR SEPARATION" on July 12, 1974, alleging that she was entitled to a judicial separation as she and defendant had voluntarily lived separate and apart for more than a year. Plaintiff further alleged that she was entitled to the permanent custody of Paula, and that defendant should be ordered to pay her alimony and child support. However, in her petition, plaintiff recognized that defendant was unable to pay alimony or child support as he was disabled (see Footnote # 1). But, she expressly reserved her rights to collect these items whenever defendant became financially able to pay them. A curator ad hoc was appointed to represent defendant. However, the record shows that this action was never tried nor was any judgment on the merits rendered therein.

Plaintiff filed a "PETITION FOR DIVORCE" on October 24, 1977, alleging that she was entitled to a judgment decreeing an absolute divorce between herself and defendant as they had voluntarily lived separate and apart for more than two years. Plaintiff again sought the permanent custody of Paula and an award for child support. She alleged that, in accordance with an order issued by the trial court, approximately $215,000 belonging to defendant had been deposited in the registry of the court. Defendant had obtained these funds as a result of a settlement of his claims arising out of the accident that had disabled him. It was from these funds that plaintiff sought a lump sum award of $39,600 in satisfaction of defendant's child support obligation. Plaintiff's action for a divorce was uncontested, and was submitted to the trial court on January 16, 1978. A formal judgment decreeing an absolute divorce between the parties was signed by the trial court on January 8, 1979. However, that judgment states that:

"The question of permanent care, custody and control of the minor child, Paula James Brasseaux, and the amount of child support to be paid by defendant to petitioner is relegated to further proceedings."

Plaintiff filed a rule to show cause on July 28, 1978, after the date on which her *551 divorce action was submitted, but prior to the date on which judgment was rendered and signed therein. In her rule, plaintiff alleged that the parties had reached an agreement as to the amount of child support defendant would pay, and she sought judicial enforcement of that agreement. The "MINUTES OF COURT" show that a partial hearing was held on plaintiff's rule on October 13, 1978, and submitted. On joint motion of counsel, the matter was continued without date.

Finally, plaintiff filed a rule to show cause, which resulted in the judgment with which we are concerned, on July 20, 1979, once again alleging that she was entitled to the permanent custody of Paula. Further, plaintiff again alleged that the parties had entered into an agreement setting forth the amount of child support that defendant would pay, but that defendant refused to comply with the terms of that agreement. However, in the event that the trial court found that the alleged agreement was not legally binding on the parties, plaintiff alleged that defendant owed her $20,700 for child support from November of 1973, to the present, and that defendant should be ordered to pay her $400 per month for child support in the future.

The "MINUTES OF COURT" show that a hearing was held on plaintiff's second rule on September 7, 1979. At that hearing, a stipulation was entered into by the parties awarding plaintiff permanent custody of Paula, subject to certain visitation rights granted defendant. The trial court ordered judgment in accordance with the stipulation. On joint motion of counsel, it was further ordered that the hearing on the issue of child support be continued without date. The record shows that no formal judgment to this effect was submitted to the trial court for signing.[2]

A hearing on the issue of child support was finally held on March 25, 1981, when the trial court rendered judgment as noted at the beginning of this opinion.

TRIAL COURT'S AWARD TO PLAINTIFF OF $8,100 FOR CHILD SUPPORT

Defendant contends that the trial court erred in awarding plaintiff $8,100 for past child support. Defendant's contention is based on a number of arguments, one of which is that plaintiff failed to prove that Paula's needs in the past were insufficiently met by the social security benefits she was receiving as a result of his disability. (The evidence shows that Paula was determined to be eligible for such benefits beginning April 1, 1974.) There was testimony to the effect that these benefits amounted to less than $100 per month when Paula began receiving them. However, the benefits were increased: to $142.10 per month in June of 1975; to $152.00 per month in June of 1976; to $161.70 per month in June of 1977; to $173.00 per month in June of 1978; to $246.50 per month in March of 1979; to $270.90 per month in June of 1979; and, to $309.60 per month in June of 1980. Paula was still receiving social security benefits of $309.60 per month when the hearing on the issue of child support was held.

LSA-C.C. Article 227 provides:

"Art. 227. Parental support and education of children
Art. 227. Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children."

LSA-C.C. Article 231 provides:

"Art. 231. Basis for granting alimony
Art. 231. Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it."

LSA-C.C.

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Bluebook (online)
422 So. 2d 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-brasseaux-lactapp-1982.