Osborne v. Osborne

512 So. 2d 645
CourtLouisiana Court of Appeal
DecidedAugust 19, 1987
Docket18901-CA
StatusPublished
Cited by22 cases

This text of 512 So. 2d 645 (Osborne v. Osborne) 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
Osborne v. Osborne, 512 So. 2d 645 (La. Ct. App. 1987).

Opinion

512 So.2d 645 (1987)

Ilar W. OSBORNE, Jr., Plaintiff-Appellee,
v.
Pinkie Lea Humphries OSBORNE, Defendant-Appellant.

No. 18901-CA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1987.

*646 Bruscato, Loomis & Street by Albert E. Loomis, III, Monroe, for defendant-appellant.

Voelker, Ragland & Crigler by James C. Crigler, Jr., Lake Providence, for plaintiff-appellee.

Before MARVIN, SEXTON and LINDSAY, JJ.

MARVIN, Judge.

The mother appeals a 1986 child support judgment that ordered the father to pay monthly for his 13-year-old daughter in the mother's residential custody, medical insurance premiums, one-half of the cost of orthodontic treatment ($37.50), and $200 to defray, in part, the costs of supporting the daughter. The residential custody of the 10-year-old son of the marriage was awarded to the father, who bears the total support obligation for the son.

The mother and father effectively agreed in 1985 when the judgments of separation and divorce were rendered that he would contribute an amount to the daughter's monthly support, but stipulated in each instance that the daughter's monthly support would not be deemed to be a considered decree but would be litigated after the parents settled their community claims against each other. Following a 1986 community settlement, the daughter's monthly support was litigated on rules filed by each parent to modify.

The mother contends that the trial court erred in reducing the father's support contribution to the daughter from $750 to $200, an amount which would require the mother to deplete her capital assets. She also seeks to have this court amend the judgment or direct the trial court to order the father to accede to the desire of the mother and daughter that the daughter attend the Methodist church with the family of her maternal aunt when the daughter visits her father and brother one weekend a month as decreed by the custody order.

We find no error or abuse of discretion and affirm the judgment.

FACTS

The trial court's written reasons detailed the procedural and factual circumstances:

The parties ... were separated by judgment of ... May 7, 1985, ... based on the abandonment of ... Ilar W. Osborne, Jr. by ... Pinkie Lee Humphries Osborne....

The parties were divorced by judgment of ... December 5, 1985. This judgment continued joint custody of the children, with the exception that residential custody of the son ... continued with [Mr. Osborne and] residential custody of the daughter ... [was] awarded [Mrs. Osborne]. *647 The judgment provides for the payment of the sum of [$500] per month by [Mr. Osborne] to [Mrs. Osborne] commencing December 1, 1985, until execution of a community property settlement agreement ... to be credited to [her] one-half portion of the community property... The judgment further stipulated that [Mr. Osborne] was to pay [$750] for the support of the [daughter], together with maintenance of hospitalization insurance. * * *

[T]he language of the judgment clearly indicates that the figure of [$750] per month set as child support was an interim figure with which neither party was satisfied, and apparently both parties felt that it should be litigated only after the community property settlement was effected.

In August 1986, about a month after the community property settlement, Mr. Osborne sought to reduce child support, asking that the parties each be responsible only for the support of the child in their respective custody. Mrs. Osborne sought to increase child support to $1,250 per month, plus payment of all hospitalization insurance and half of all medical and dental bills not covered by insurance. She also asked that Mr. Osborne be responsible for transporting the children between his home in Tallulah and her home in Pineville for their visitation with the other parent, and that he be ordered to let Lee Evelyn, the daughter, attend a Methodist church rather than his Baptist church during her visits with him.

The trial court found that the parties should continue to bear the transportation responsibilities equally and that Lee Evelyn's church attendance was a matter of parental authority during her once-a-month weekend visit with her father. Lee Evelyn's child support payments were fixed at $200 per month and Mr. Osborne was ordered to pay monthly premiums for her hospitalization and medical insurance and one-half of the payments for her orthodontic treatment.

Before answering the mother's contentions, we note the potential conflict between pertinent case law and legislation, whether the showing of a change in circumstances that is required to modify child support may be waived. LSA-R.S. 9:311.

CHANGE IN CIRCUMSTANCES

In the judgment of divorce dated December 5, 1985, the parties stipulated that Mr. Osborne would maintain hospitalization insurance and would pay Mrs. Osborne $750 per month child support, and that "said awards of child support [are] to be in no way deemed a considered decree with the express understanding that both parties are expected to litigate the issue of child support within thirty (30) days of execution of the community property settlement agreement ..."

The parents and the court below proceeded on the premise that the stipulation relieved the parents of showing a change in circumstances. Nevertheless, the parties alleged and the court found that some substantial changes in circumstances had occurred since the December 1985 judgment, particularly as a result of the community property settlement which increased Mr. Osborne's debts and Mrs. Osborne's liquid assets.

Ordinarily, even a consent judgment fixing child support may not be modified absent a showing of a substantial change in circumstances to support the modification. Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2d Cir.1982). Aldredge v. Aldredge, 477 So.2d 73 (La.1985), recognized that an express and unequivocal waiver could be made as an exception to the requirement of proving a change in circumstances. The court observed that the requirement of showing a change in circumstances had been created by case law and found that a waiver of that requirement did not violate the Civil Code or public policy.

Although Aldredge was not cited, the trial court's finding that the parties intended and were entitled to have a res nova hearing on child support after the community property settlement is in accord with Aldredge.

*648 Aldredge was rendered on October 21, 1985, shortly before the Osbornes made the stipulation in the December divorce judgment. By Act No. 41 of 1985, effective September 6, 1985, the legislature provided in part in LSA-R.S. 9:311(A):

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.

We concur in the trial court's finding that a change in circumstances was shown and do not consider whether the quoted statute precludes a waiver of the requirement as the parties intended and as Aldredge upholds.

AMOUNT OF CHILD SUPPORT

[3] Both parents are obligated to contribute to the support of children in proportion to the needs of the children and the circumstances of each parent. CC Arts. 227, 231. If finances permit, the children are entitled to the same standard of living which they enjoyed before the marriage ended. Ducote v. Ducote,

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Bluebook (online)
512 So. 2d 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-osborne-lactapp-1987.