Mathews v. Mathews

489 So. 2d 360, 1986 La. App. LEXIS 6971
CourtLouisiana Court of Appeal
DecidedMay 12, 1986
DocketNo. 85-CA-693
StatusPublished
Cited by3 cases

This text of 489 So. 2d 360 (Mathews v. Mathews) 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
Mathews v. Mathews, 489 So. 2d 360, 1986 La. App. LEXIS 6971 (La. Ct. App. 1986).

Opinions

DUFRESNE, Judge.

This is an appeal by Vicki Fisk Mathews, defendant-appellant, from an adverse judgment on a rule to reduce child support brought by her former husband, Benjamin B. Mathews, plaintiff-appellee. Because we find no abuse of discretion or legal error in the judgment of the trial court, we affirm.

The parties were divorced by judgment dated February 2, 1983. A joint custody plan was implemented whereby the daughter of the marriage would spend the nine months of the school year with her mother and the summer months with her father. The father was ordered to pay child support of $400 per month during the school year, and $100 per month during the summer.

In an original opinion of January 10, 1984, this court raised the awards to $600 and $300 respectively. However, a rehearing before a five judge panel was granted by us to reconsider an aspect of that opinion not at issue here. After rehearing, an opinion was rendered on November 13, 1984, wherein the increases for child support announced in the January opinion were left intact. Both opinions are reported in Mathews v. Mathews, 459 So.2d 546 (La.App. 5th Cir.1984). Writs were taken to the Supreme Court, but were denied on January 14, 1985, Mathews v. Mathews, 462 So.2d 650 (La.1985).

On October 24, 1984, while the rehearing was pending here, the father filed a rule to reduce child support. On November 19, 1984, after our opinion on rehearing had been promulgated, but before disposition of the case on a writ to the Supreme Court, the mother filed a rule to cumulate child support at the rate fixed by this court from February 2, 1983, the date of the district court judgment. She also alleged that the father had failed to pay, or paid late, the original award fixed by the trial court, and sought a contempt judgment. On November 28, 1984, she filed an additional rule to increase child support above the $600 and $300 figures fixed by this court.

Both parties’ rules were heard on May 2, 1985. The trial court determined that because of changed circumstances of both parties, that a reduction in child support to $500 per month during the school year and $200 during the summer was warranted. Relying on Frederic v. Frederic, 302 So.2d 903 (La.1974), he cumulated the difference between the original award and the increased award ordered by this court, only from January 14, 1985, to May 1, 1985, the effective date of his judgment to reduce child support. He further determined that there was insufficient evidence to show that the father had either missed or paid late, support payments, and therefore dismissed the mother’s rules for cumulation of past due child support, except as noted above, and contempt. The mother now appeals.

The first issue here is whether the trial court erred in reducing the child support award because of changed circumstances. The evidence showed that the monthly expenses for the child had increased from $700 to $800 from February 2, 1983. It further showed that although the father’s gross income of $3,000 per month had remained substantially the same, he had lost reimbursement for his car expenses which are now approximately $600 per month. As to the mother, her present income is $800 per month, as compared with $125 per month in February 1983. The trial court also noted in the record that the child is spending more time with her father, both during the summer and on weekends, than he had anticipated in his original award. He finally stated [362]*362that, although there was no medical testimony, he was convinced by the father’s testimony that he had muscular dystrophy, as well as by his physical appearance, and wearing of leg braces, that he is suffering from a debilitating nerve disorder. On this showing we find no abuse of the trial court’s discretion in reducing the child support award.

The mother next urges that she was prejudiced by two evidentiary rulings by the trial court. The first was his refusal to admit into evidence certain ledger sheets which she alleges showed that payments were late or not paid. It was admitted that these sheets were prepared in conjunction with the filing of her rule of November 19, 1984, and were not contemporaneous or regularly kept records of child support payments. Further, in response to a subpoena duces tecum for her bank records which may have corroborated these sheets, she claimed that the vast majority of those papers had been lost. We have carefully examined her testimony and all evidence in the record and cannot determine upon what documents or records the figures and dates on the ledger sheets were based. We finally note that four child support checks from the father were introduced, and one of these for $400, does not appear on the ledger sheets. On this showing, the ledger sheets were of no probative value, and were properly excluded by the trial judge.

The second alleged error was the exclusion of the father’s bank records. Counsei for the mother sought introduction of these records to establish when the support checks cleared the father’s bank, and therefore when the funds were actually paid the mother. He urged at trial, and reurges here, the proposition that if child support checks clear the father’s bank after the date when payment is due, that the father ie paying late. He cites no case so holding and we find none. We therefore conclude that the trial court properly excluded this evidence.

The final issue here is when the increase in child support ordered by this court became effective. The mother argues that the increase should be effective retroactively to February 2, 1983, the date of the original award. In the alternative, she urges that because the increase was made in this court’s original opinion of January 10,1984, and because that increase was not contested on the application for rehearing or on the application for a writ to the Supreme Court, the increase became final at least as of that date. As to this latter argument, we cite La.Code Civ.Pro. arts. 2166 and 2167. We find nothing in either article which would suggest that issues not raised on application for rehearing in the appellate courts, or writ applications to the Supreme Court, become final and definitive, while the issues appealed do not. We therefore reject that argument.

The final issue here is whether the increase in child support awarded by this court is retroactive to February 2,1983, the date of the district court judgment, or whether it commences on January 14,1985, the date the Supreme Court denied the writ application, thus making our judgment definitive and final. Resolution of the question turns on the applicability of the rule set forth in Frederic v. Frederic, 302 So.2d 903 (La.1974). The issue in that case was whether a husband condemned to pay alimony could discontinue paying on the basis of an appellate court judgment reversing the award while a writ to the Supreme Court challenging the appellate judgment was pending. The court answered as follows:

Inasmuch as an appeal from a judgment awarding alimony does not suspend the execution of the judgment, La.Code Civ.P. Art. 3943, the husband was not authorized to discontinue alimony payments upon the strength of the Court of Appeal judgment of February 6, 1974 revoking alimony payments. The effect of the Court of Appeal judgment was itself suspended when this Court granted writs to review its correctness. The effective date of the revocation of the alimony due by the husband to the wife is the date the judgment of this Court in [363]*363these consolidated matters becomes final, (at 908)

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

Related

Hogan v. Hogan
549 So. 2d 267 (Supreme Court of Louisiana, 1989)
Perez v. Hogan
534 So. 2d 478 (Louisiana Court of Appeal, 1988)
Warthen v. Warthen
517 So. 2d 452 (Louisiana Court of Appeal, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
489 So. 2d 360, 1986 La. App. LEXIS 6971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathews-v-mathews-lactapp-1986.