McGovern v. Tatman

410 So. 2d 779, 1982 La. App. LEXIS 6675
CourtLouisiana Court of Appeal
DecidedJanuary 12, 1982
DocketNo. 12239
StatusPublished
Cited by5 cases

This text of 410 So. 2d 779 (McGovern v. Tatman) 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
McGovern v. Tatman, 410 So. 2d 779, 1982 La. App. LEXIS 6675 (La. Ct. App. 1982).

Opinion

CHEHARDY, Judge.

Plaintiff, Ethel Tatman McGovern, appeals a district court decision in favor of plaintiff and against the defendant, Wilson Joseph Tatman, Sr., in the sum of $2,000 in child support arrearages together with legal interest from the first day of June, 1977 until paid and $150 in attorney fees.

The record reflects that plaintiff and defendant were married in 1954 and four children were born of the marriage. On November 7, 1967 judgment was rendered in favor of Tatman and against Mrs. McGovern decreeing an absolute divorce “a vin-culo matrimonii.” The judgment also ordered that the custody of all four children be granted to Mrs. McGovern, and Tatman was ordered to pay child support in the amount of $300 per month.

On July 1, 1980, evidence was taken in the district court on the child support ar-rearage rule. Tatman testified that at the time of the hearing all four children had reached the age of majority. He said he stopped giving Mrs. McGovern child support in 1969, when he alleges she refused to support the children, but he added that he had never brought any legal proceedings to have the judgment of November 1967 amended.

Tatman stated the 18-year-old child had been living with him since February of 1980, that he carries medical insurance on the children and that he has supplied them with groceries from the grocery store which he owns. Although Tatman said he had been excused by the court from paying child support, there is no evidence of this in the record of the present case. He also admitted that since 1977 he has made no child support payments. He said, however, he has paid the tuition of the children since they started school.

Mrs. McGovern testified that Tatman has never complied with the judgment ordering him to pay $300 per month child support. She stated she never paid Tatman rent for living in the house belonging to him (as a result of their community settlement agreement) because she had understood the home was hers. She said, however, she never had an agreement with Tatman, either oral or written, that she would excuse his child support obligations in lieu of rent payment, tuition payment or in any other fashion. In regard to her 17-year-old son who recently went to live with Tatman, she said she did not ask him to leave home, but he did so voluntarily.

[781]*781In giving his reasons for judgment orally from the bench, the district court judge stated:

“I find you in arrearage on your child support for one child for a period of three years in a total amount of twenty-seven hundred dollars, determined at seventy-five dollars a month of his prorata of the child support, for one child at seventy-five dollars a month for one year for a total of nine hundred dollars, a total of thirty-six hundred less a credit of sixteen hundred on the Social Security payment. You owe her two thousand dollars. The rule is absolute in the amount of two thousand dollars.”

The plaintiff now appeals the judgment on the ground the district court judge was in error in retroactively discharging the defendant from part of the arrears in child support which had accumulated over the three years prior to the hearing. We agree and reverse.

The court specifically stated in Halcomb v. Halcomb, 352 So.2d 1013 (La.1977), at 1015-1016:

“Although not necessarily exclusive, an acceptable procedure for reduction or modification is to proceed by contradictory motion to have the amount of future alimony reduced, modified or terminated. Cf. La.Code Civ.Pro. art. 3945.
“In Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226 (1954), the question was answered as follows:
‘The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law, Louisiana Code of Practice, Article 548; Snow v. Snow, 188 La. 660, 177 So. 793; Williams v. Williams, 211 La. 939, 31 So.2d 170; Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89; Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902; that the right to receive such alimony in a lump sum is not waived by plaintiff’s failure to make periodic demands on the defendant, Gehrkin v. Gehrkin, supra; and that liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and after the time when it is sought, by suit or in answer to a suit to enforce payment. Article 232, LSA-Civil Code; Snow v. Snow, supra, 188 La. at page 670, 177 So. 793, Gehrkin v. Gehrkin, supra:
“Until modified, therefore, the judgment awarding alimony is a determination of the rights of the parties and has acquired the authority of the thing adjudged. La.Code Civ.Pro. arts. 1841-42. Nevertheless, in another sense an alimony judgment is not final in that a modification, reduction or termination of such a judgment may be sued for. La.Civ.Code art. 160, 232. See also Wright v. Wright, 189 La. 539, 179 So. 866 (1938). In the absence of such a suit, however, the judgment cannot be altered or modified, Cotton v. Wright, 193 La. 520, 190 So. 665 (1939); Williams v. Williams, supra, except in certain instances where the award is terminated by operation of law. An example of an automatic revocation of alimony is when an award in favor of a wife is revoked when she remarries. La. Civil Code art. 160. Also, alimony pen-dente lite is terminated by the signing of a final judgment of divorce when the divorce decree makes no mention of future alimony. White v. Morris, 236 La. 767, 109 So.2d 87 (1959). However, unless automatic reduction, modification or termination is provided for by operation of law, the award remains enforceable notwithstanding that a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction. Support for this rule is found in a proper regard for the integrity of judgments. Such a regard does not condone a practice which would allow those cast in judgment to invoke self-help and unilaterally relieve themselves of the obligation to com[782]*782ply. Any other rule of law would greatly impair the sanctity of judgments and the orderly processes of law. To condone such a practice would deprive the party, in whose favor the judgment has been rendered, of an opportunity to present countervailing evidence, and at the same time deny the judge an opportunity to review the award in light of the alleged mitigating cause which had developed since its rendition.”

In Halcomb the husband contended the wife could not sue to collect any arrearages in child support payments on behalf of children who had reached the age of majority, and the court addressed the issue of whether the husband had the right to reduce the in globo child support award proportionately as each of the four children arrived at the age of majority or became emancipated.

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410 So. 2d 779, 1982 La. App. LEXIS 6675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgovern-v-tatman-lactapp-1982.