Martin v. Martin

625 So. 2d 544, 1993 La. App. LEXIS 2920, 1993 WL 392138
CourtLouisiana Court of Appeal
DecidedSeptember 28, 1993
DocketNos. 93-CA-0211, 93-CA-212
StatusPublished
Cited by1 cases

This text of 625 So. 2d 544 (Martin v. Martin) 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. Martin, 625 So. 2d 544, 1993 La. App. LEXIS 2920, 1993 WL 392138 (La. Ct. App. 1993).

Opinion

THOMAS F. DALEY, Judge Pro Tern.

Mr. Roy Martin appeals the reduction in the alimony pendente lite award he is required to pay his "wife and the amount of his alimony pendente lite arrearages.

Roy Martin and Helen Moyer were married on April 17, 1982. Approximately nine (9) years later, on May 13, 1991, Mr. Martin left the matrimonial domicile. Thereafter, on May 29, 1991, Mr. Martin filed a petition for divorce based upon La.C.C. art. 102, and Mrs. Martin responded by filing a petition for divorce under La.C.C. art. 103 alleging adultery by Mr. Martin. A supplemental petition was then filed by Mr. Martin alleging pre-separation and post-separation fault on the part of Mrs. Martin.

Pending the judgment of divorce, the Mrs. Martin sought and was awarded alimony pendente lite. The judgment awarding the alimony was signed on July 10, 1991, and provided that Mr. Martin was to pay ONE THOUSAND SIX HUNDRED FORTY FIVE ($1,645.00). DOLLARS per month alimony pendente lite retroactive to June 7, 1991, to Mrs. Martin. It was further ordered that Mr. Martin maintain hospitalization insurance on Mrs. Martin and allow her to collect the rent from trailers located on the community property. The rent amounted to approximately ONE THOUSAND FIFTY ($1,050.00) DOLLARS per month.1

On October 18, 1991, Mr. Martin filed a “MOTION TO REDUCE ALIMONY PEN-DENTE LITE AND SUSPEND PAYMENTS DURING PERIOD OF ILLNESS AND MOTION TO REDUCE PAYMENTS DUE TO CHANGE OF CIRCUM[546]*546STANCES AND FOR CREDIT FOR PAIR MARKET VALUE FOR RENTS, UTILITIES AND INCIDENTALS” [sic]. Following a hearing on the motion, the alimony pendente lite obligation was reduced from ONE THOUSAND SIX HUNDRED FORTY FIVE ($1,645.00) DOLLARS per month to ONE THOUSAND ONE HUNDRED ($1,100.00) DOLLARS per month. Mr. Martin now appeals the judgment reducing the alimony pendente lite award asserting that the alimony pendente lite should have been reduced more and/or eliminated. Mr. Martin contends that the trial court erred by attributing to him income from a Sub Chapter S Corporation which he partially owns. In addition, Mr. Martin asserts that the trial court erred by failing to consider Mrs. Martin’s ability to earn income when determining the amount of the alimony award. We disagree with both contentions and accordingly affirm the trial court’s judgment.

ASSIGNMENT OF ERROR NUMBER ONE

Appellant objects to the trial courts attributing to Mr. Martin 1991 income from B & M Machine Works, Inc., (hereinafter referred to as B & B Machine) a Sub Chapter S Corporation of which Mr. Martin owns fifty percent (50%) contending that profit from a Sub Chapter S Corporation should not be considered income for alimony calculation purposes where the owner does not receive a cash distribution. The issue as presented to the court requires an inquiry into the factors which the court should consider when awarding or altering an alimony pen-dente lite award.

Mr. Martin’s income and financial condition were considered by the trial court. The record reflects that the trial judge did attribute fifty percent (50%) of the profits from B & M Machine to Mr. Martin when reviewing his request for alimony pendente lite reduction. In addition to other sources of income, Roy Martin’s 1991 Federal Income Tax Return reflects non wage income of NINE THOUSAND TWO HUNDRED NINETY TWO ($9,292.00) DOLLARS derived from B & M Machine. The tax return of B & M Machine indicated that B & M had gross receipts of FOUR HUNDRED FOURTEEN THOUSAND NINE HUNDRED ONE ($414,901.00) DOLLARS for the calendar year 1991 and a net profit of NINETEEN THOUSAND EIGHT HUNDRED FORTY NINE ($19,849.00) DOLLARS. Mr. William Barbier, Jr., the accountant for B & W Machine testified that the sales and profit for B & M increased in 1992. For the period January through May 1992 as compared to the same period in 1991 sales increased FORTY THREE THOUSAND ($43,000.00) DOLLARS and profit increased TWENTY THREE THOUSAND TWO HUNDRED ($23,200.00) DOLLARS.

The general rule in awarding alimony pendente lite requires that the award be proportionate to the needs of the claimant spouse and the means of the other spouse. If the needs of the claimant exceed the ability of the other to pay, then alimony pendente lite should be fixed at a sum which will as nearly as possible be just and fair to all parties involved. LSA-C.C. Art. 148; Kaplan v. Kaplan, 453 So.2d 1218 (La.App.2d Cir.1984), writ denied, 458 So.2d 484 (La. 1984); Whatley v. Whatley, 430 So.2d 129 (La.App. 2d Cir.1983).

The amount of alimony pendente lite is left largely within the sound discretion of the trial judge and will not be disturbed on appeal unless that discretion has been abused. Khaled v. Khaled, 424 So.2d 370 (La.App. 2d Cir.1982).

Civil Code Art. Ill states:

Art. 111. Alimony pendente lite

If the spouse has not a sufficient income for maintenance pending suit for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse, (emphasis added).

Determination of means with which one spouse is to satisfy alimony pendente lite obligation toward claimant spouse is not based solely on income but also on any resource from which wants of life may be supplied, and the entire financial condition of spouse owing such obligation must be examined. Desormeaux v. Montgomery, 576 [547]*547So.2d 1158 (La.App. 3rd Cir.1991). Appellant’s focus solely on income received for the purpose of awarding alimony pendente lite is misplaced. In Long v. Long, 219 La. 649, 53 So.2d 798 (1951), the court held a husband’s share of net profits of a partnership business, though reinvested in the business, must be considered in computing the means of the husband for the purposes of awarding alimony pendente lite. The profitability of a Sub Chapter S Corporation which Mr. Martin received fifty percent (50%) of the profits from is a factor that the trial court can consider in reviewing appellant’s means to provide maintenance. There is no finding of abuse on behalf of the trial court. Assignment of error number one lacks merit.

ASSIGNMENT OF ERROR NUMBERS TWO AND THREE

Appellant claims that Mrs. Martin is employable and capable of earning income and should not be entitled to alimony pen-dente lite. In the alternative, he asserts alimony pendente lite should be diminished by her earning capacity.

Mrs. Martin testified that during her marriage she never worked outside the home. She assisted Mr. Martin in his business enterprises by storing trailers, selling ducks and chickens, typing for B & M Machine, and performing bookkeeping functions. Between the original alimony award and the reduction hearing, Mrs. Martin collected rents on certain rental property owned by Mr. Martin. Mrs. Martin’s work duties for B & M Machine and her collection of rent and other related responsibilities were terminated by Mr. Martin after the original alimony pen-dente lite award. Mrs. Martin did not voluntarily abandon these duties.

The party seeking to modify a previous judgment of support has the burden of proving a sufficient change in circumstances. de la Oliva v. de la Oliva, 527 So.2d 491 (La.App. 5th Cir.1988); Creech v. Creech, 449 So.2d 1192 (La.App. 2d Cir.1984).

The evidence indicates that Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dagley v. Dagley
695 So. 2d 521 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
625 So. 2d 544, 1993 La. App. LEXIS 2920, 1993 WL 392138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-martin-lactapp-1993.