Preis v. Preis

631 So. 2d 1349, 1994 WL 30375
CourtLouisiana Court of Appeal
DecidedFebruary 2, 1994
Docket93-569
StatusPublished
Cited by22 cases

This text of 631 So. 2d 1349 (Preis v. Preis) 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
Preis v. Preis, 631 So. 2d 1349, 1994 WL 30375 (La. Ct. App. 1994).

Opinion

631 So.2d 1349 (1994)

Edwin G. PREIS, Jr., Plaintiff-Appellant-Appellee,
v.
Elizabeth Bourque PREIS, Defendant-Appellee-Appellant.

No. 93-569.

Court of Appeal of Louisiana, Third Circuit.

February 2, 1994.

*1350 Anthony Fazzio, Ralph Edward Kraft, and Richard J. Hymel, Lafayette, for Edwin G. Preis, Jr.

Gary McGoffin, and Steven Gerald Durio, Lafayette, for Elizabeth Bourque Preis in No. 93-569.

*1351 Gary McGoffin, Steven Gerald Durio, and Anthony Fazzio, Lafayette, for Elizabeth Bourque Preis in No. 93-570.

Before DOUCET and KNOLL, JJ., and CULPEPPER[*], J. Pro Tem.

KNOLL, Judge.

This is a consolidated appeal in a matrimonial case involving the dissolution of the marriage of Edwin G. Preis, Jr. and Elizabeth Bourque Preis. At issue on appeal are three separate judgments which determined various aspects of post-divorce alimony and child support, and the procedure involved in the severance of Mrs. Preis's original petition for separation from her incidental demands. Although we will treat all the issues in this appellate opinion, we will render a separate judgment in the consolidated case, Elizabeth Bourque Preis v. Edwin G. Preis, Jr., Number 93-570 of the docket of this court.

In his assignments of error, Mr. Preis contends that the trial court erred in: (1) awarding Mrs. Preis post-divorce alimony which maintains her in the style to which she was accustomed to live prior to her divorce; (2) determining the income tax liability attributable to the post-divorce alimony by not calculating the actual tax liability attributable to the post-divorce alimony award; (3) in allocating one-half of Mrs. Preis's monthly apartment rental and the entire costs of the car note, utilities and telephone expenses in its determination of alimony; (4) finding Mrs. Preis in necessitous circumstances and awarding post-divorce alimony; (5) deviating from the child support guidelines when their combined gross monthly income exceeds the child support schedule; (6) not including Mrs. Preis's post-divorce alimony and monthly payments on the sale of the parties' former residence as income for purposes of the allocation of child support obligations between the parents; (7) awarding extraordinary child support expenses for uninsured medical expenses and automobile insurance for the two minor children without an evidentiary basis; and, (8) failing to consider Mrs. Preis's monthly income of $956.68 derived from the sale of their former residence as a change in circumstances sufficient to justify a decrease in post-divorce alimony. Mrs. Preis answered the appeal, arguing that the trial court erred in utilizing a lower gross monthly income figure to determine Mr. Preis's child support obligation.

Mrs. Preis also filed a separate appeal, contending that the trial court erred in Mr. Preis's motion to sever her petition for separation from other pending matters and to have the separation petition heard since Mr. Preis admitted the allegations of the petition.

For the following reasons, we reverse the trial court's award of post-divorce alimony and remand to the trial court for a redetermination of its child support award.

FACTS

Initially, the Preises each filed petitions for separation on October 17, 1990, coupled with incidental actions. Mrs. Preis alleged mental cruelty and Mr. Preis's abandonment; he alleged cruel treatment. On November 26, 1991, Mr. Preis amended his answer and admitted the allegations of Mrs. Preis's petition for separation. On December 7, 1991, Mrs. Preis amended her separation petition to include a prayer for divorce.

On December 9, 1991, Mrs. Preis filed a separate divorce action premised on their physical separation in excess of one year. On December 9, 1991, the trial court granted Mr. Preis's motion to sever Mrs. Preis's petition for separation from the other pending matters delineated in the petition, and to have the petition set for hearing as an uncontested matter. On December 13, 1991, the trial court granted Mrs. Preis's petition for separation. By judgment dated December 16, 1991, Mrs. Preis was further granted a divorce from Mr. Preis.

The trial court heard Mrs. Preis's request for post-divorce alimony on January 22, 1992, and by judgment dated February 14, 1992, awarded her post-divorce alimony in the amount of $689.24 per month.

*1352 On July 31, 1992, Mr. Preis filed a motion to terminate alimony. Mrs. Preis answered and reconvened for an increase in monthly post-divorce alimony. On September 30, 1992, Mr. Preis filed a motion to reduce child support; Mrs. Preis reconvened seeking an increase in child support. After a hearing on the issues of post-divorce alimony and child support, the trial court maintained post-divorce alimony at $689.24 and reduced child support from $6,449.74 per month to $3,180.09 per month.

These appeals followed.

POST-DIVORCE ALIMONY

Mr. Preis contends that the trial court abused its discretion in awarding Mrs. Preis post-divorce alimony in the amount of $689.24. Initially, he argues that the trial court erred in finding Mrs. Preis proved that she did not have sufficient means for support and, alternatively, that it erred in awarding too much post-divorce alimony.

LSA-C.C. Art. 112 provides in pertinent part:

"A. (1) When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income ...
(2) In determining the entitlement and amount of alimony after divorce, the court shall consider:
(a) The income, means, and assets of the spouses;
(b) The liquidity of such assets;
(c) The financial obligations of the spouses, including their earning capacity;
(d) The effect of custody of children of the marriage upon the spouse's earning capacity;
(e) The time necessary for the recipient to acquire appropriate education, training, or employment;
(f) The health and age of the parties and their obligations to support or care for dependent children; and
(g) Any other circumstances that the court deems relevant.
(3) In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances."

LSA-C.C. Art. 112 requires that a spouse must be without sufficient means for maintenance in order to be eligible for alimony after divorce. The issue becomes whether Mrs. Preis's means provide sufficient maintenance within our jurisprudential definition. Maintenance includes food, shelter and clothing, and also reasonable and necessary expenditures for an automobile or other transportation, utilities, medical and drug expenses, household expenses and the income tax liability generated by the alimony payments made to the former spouse. Moreau v. Moreau, 553 So.2d 1064 (La.App. 3 Cir. 1989). The claimant spouse seeking postdivorce alimony has the burden of establishing his or her necessitous circumstances. Frederic v. Frederic, 302 So.2d 903 (La.1974). A trial court's determination of post-divorce alimony will not be disturbed on appeal unless its ruling is manifestly erroneous. Slayter v. Slayter, 576 So.2d 1121 (La.App. 3 Cir.1991).

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Bluebook (online)
631 So. 2d 1349, 1994 WL 30375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preis-v-preis-lactapp-1994.