Moss v. Moss

379 So. 2d 1206
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1980
Docket7406
StatusPublished
Cited by18 cases

This text of 379 So. 2d 1206 (Moss v. Moss) 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
Moss v. Moss, 379 So. 2d 1206 (La. Ct. App. 1980).

Opinion

379 So.2d 1206 (1980)

James O. MOSS, Jr., Plaintiff-Appellee,
v.
Sara Ann Bishop MOSS, Defendant-Appellant.

No. 7406.

Court of Appeal of Louisiana, Third Circuit.

January 30, 1980.

*1207 McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendant-appellant.

Anderson, Leithead, Scott, Boudreau & Savoy, Richard L. Savoy, Lake Charles, for plaintiff-appellee.

Before CULPEPPER, DOMENGEAUX and STOKER, JJ.

DOMENGEAUX, Judge.

From an adverse judgment rendered by the Fourteenth Judicial District Court, Sara Ann Bishop Moss has perfected this appeal to request (1) permanent alimony, and (2) an increase in the amount of child support awarded to her. No appeal has been taken from those portions of the judgment which granted James O. Moss, Jr. a divorce based on living separate and apart from his former wife for at least one year from the date of their legal separation, and which awarded to Mrs. Moss the permanent care, custody, and control of the four minor children born of the marriage between Mr. and Mrs. Moss. The four children, all boys, were aged 17, 15, 14, and 9 at the time of trial.

At the time of the separation, the Court ordered Mr. Moss to pay $400.00 per month as alimony pendente lite and $600.00 per month as child support at a time when all four of the children were residing with their mother. In the judgment of divorce Mrs. Moss was awarded no alimony and the child support was increased to $250.00 per month for each of the two children then residing with their mother, while it was decreased to $100.00 per month for each of the other two children whenever they resided with her.

POST-DIVORCE ALIMONY

Article 160 of the Louisiana Civil Code authorizes a judicial award of alimony after divorce to the spouse in need. When trial of this dispute was conducted, Article 160 read as follows:

"When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:

1. The wife obtains a divorce;

2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.
This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries."[1]

*1208 By the terms of Article 160 Mrs. Moss might be eligible for alimony of up to one-third of her former husband's income since she was without fault. However, she bears the burden of proving that she has insufficient means for her support. Bowman v. Bowman, 355 So.2d 564 (La.App. 3rd Cir. 1978); Pleasant v. Pleasant, 362 So.2d 1171 (La.App. 2nd Cir. 1978).

The term "support" or "maintenance" has been interpreted to include food, clothing, and shelter, the basic necessities of life, Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), as well as reasonable and necessary transportation expenses, utility expenses (such as gas and electricity), medical and drug expenses, household expenses, and income tax liability generated by the alimony payments, Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).

The only evidence of Mrs. Moss' monthly expenditures for her support is a handwritten list offered as evidence which Mrs. Moss read during her testimony. On the basis of the list Mrs. Moss calculated her monthly expenses to be about $2,000.00. Counsel for plaintiff objected to the introduction of the list since Mrs. Moss could produce no receipts or cancelled checks or other evidence which would have supported her claimed expenses.[2] The Judge overruled the objection and allowed the list to be received in evidence as an estimate. We note here that the list included many expenses which are not within the scope of Article 160, such as pleasure trips, her college tuition (even though there is no evidence that she is still a student), bank overdrafts, church contributions, "special occasions" (such as Valentine's Day or Mother's Day), and others. Many of her other listed expenses would be more appropriately classified as child support expenses and should not be considered when determining whether alimony is due. Among these expenses would be children's tuition and other school expenses, children's medical bills, and the proportion of household expenses attributable to the children's use.

When considering whether a spouse's means are sufficient to support her (or his) needs, the Court must look to the income and property of the spouse requesting alimony before making its determination. Smith v. Smith, supra; White v. White, 356 So.2d 1023 (La.App. 1st Cir. 1977).

Mrs. Moss enjoyed an extensive education. Years before the trial she earned a degree in English and in May of 1978 she earned a Master's degree in Guidance and Counseling. During the school year preceding the trial Mrs. Moss had taught classes at McNeese and at the Episcopal Day School. Nevertheless, she was unemployed at the time of trial, and her status as a member of the regular work force remained in doubt since none of her five job applications had borne any offers of employment. She did have a temporary job lined up with the McNeese State University Placement Office which was to begin June 6, 1979, shortly after trial. But this job was to last only two months and would result in income of only $300.00 per month.

Mrs. Moss had other property in addition to the prospective income. Her one-half interest in community owned stock was valued at $17,175.00, her share of a community savings account amounted to $2,890.24, and *1209 her checking account contained a balance of $2,000.00.[3] Thus, her liquid assets totalled over $22,000.00.

In addition to her liquid assets Mrs. Moss owned a two-bedroom home located in Lake Charles, valued at $32,000.00. The $10,000.00 down payment reflected her equity in the home. Funds for the down payment she received as her share of the sale of the former community home. She also owned a 1975 or 1976 model Chevrolet automobile of unknown value.

A community-owned pension and profit sharing plan with an estimated value of $38,000.00 remained undivided. The trial court correctly excluded this asset in determining whether Mrs. Moss had sufficient means for her support since her interest would not be available to her until Mr. Moss reached the age of 65, twenty-eight years after the trial.[4]

In dispute is whether Mrs. Moss owned 18/30ths of 313 acres of land in Mississippi. The trial judge in his reasons for judgment said:

"The Court can do nothing other than take notes of the evidence in the record, demonstrated by deeds that Mrs. Moss owns 18/30ths, undivided interest, in 313 acres of cotton-farming land in Mississippi. I do not know the value of that land, but I would equate it to the value of rice-farming land in this area, so far as monetary worth is concerned, and I believe that I can take judicial notice that such land presently has a market value of some $1,200.00 per acre, which would indicate that Mrs. Moss actually owns, as record title owner, an interest in that property, with a present market value of approximately $187,000.00...."

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Bluebook (online)
379 So. 2d 1206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moss-v-moss-lactapp-1980.