Romero v. Romero

463 So. 2d 768
CourtLouisiana Court of Appeal
DecidedJanuary 16, 1985
Docket83-1091
StatusPublished
Cited by7 cases

This text of 463 So. 2d 768 (Romero v. Romero) 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
Romero v. Romero, 463 So. 2d 768 (La. Ct. App. 1985).

Opinion

463 So.2d 768 (1985)

James ROMERO, Plaintiff-Appellee,
v.
Deanna Duhon ROMERO, Defendant-Appellant.

No. 83-1091.

Court of Appeal of Louisiana, Third Circuit.

January 16, 1985.
Writ Denied March 22, 1985.

*769 Kenneth W. Cole, Lafayette, for defendant-appellant.

Norman L. Williams, Lake Charles, for plaintiff-appellee.

Before GUIDRY, STOKER, DOUCET, LABORDE and YELVERTON, JJ.

DOUCET, Judge.

This appeal arises from a rule brought by James Romero, to rescind alimony, for child support, and for one-half of all medical and hospitalization expenses.

After a hearing, the trial court rendered a judgment reducing the amount of alimony from $500 per month to $350 per month. The trial court refused to award child support and one-half of medical and hospitalization expenses. Mrs. Romero appeals only from that part of the decision reducing the alimony award.

James Romero and Deanna Duhon Romero were married on May 26, 1961. Three children were born of the marriage. In 1982, the ages of the children ranged from 17 to eight years of age. The oldest child had been emancipated by marriage. On July 9, 1982 James Romero filed a petition for divorce based on one year living separate and apart. A consent judgment was entered pendente lite, granting the care, custody, and control of the two minor children and the use of the family home to James Romero. The consent judgment also granted alimony pendente lite of $500 per month to Deanna Romero, with the same sum to be paid as permanent alimony after the divorce.

On September 15, 1983 a judgment of divorce was entered including the provisions of the earlier judgment. A community property settlement agreement was entered at that time. Mrs. Romero's share of the community included certain household furnishings, an undivided one-half interest in the family home, and one-half of a community bank account amounting to $3,000.00. Further, she exchanged her interest in all retirement benefits of James Romero for $7,626.00 in cash, which was to be paid upon the sale of the family home.

In March 1983 the home was sold. Mrs. Romero received about $35,000 from the sale. This brought the cash portion of Mrs. Romero's half of the community property to approximately $45,000. Out of this amount she bought a mobile home for $14,000, a lot on which to put it for $7,000 and a 1981 Cadillac Eldorado for $14,000. At the trial on the alimony rule, Mrs. Romero testified that approximately another $5,000 was spent on miscellaneous items, leaving a balance of $5,000 in the bank. Mrs. Romero has no income other than the alimony payments.

After taking evidence about the circumstances of each party, the trial court reduced the award of permanent alimony to $350.00 per month. Mrs. Romero appeals this decision alleging that there was not a sufficient change of circumstance on the part of either party to justify a reduction in alimony.

La.C.C. art. 160 sets out the circumstances in which permanent alimony may be granted and the factors to be considered in setting the award:

"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, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement *770 and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse's earning capacity; the time necessary for the recipient to acquire appropriate education, training or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage."

This court in Cromwell v. Cromwell, 419 So.2d 974 (La.App. 3rd Cir.1982) stated with regard to the last sentence of La.C.C. art. 160 that:

"Jurisprudence interpreting this portion of Article 160 consistently holds that for a court to alter an alimony award, including one established by a consent judgment, the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule. Bernhardt v. Bernhardt, 283 So.2d 226 ([La.]1973); Fisher v. Fisher, 320 So.2d 326 (La.App. 3rd Cir.1975); Swider v. Swider, 314 So.2d 372 (La.App. 4th Cir.1975); cert. denied, 320 So.2d 551 (1975)."

It was shown at trial that Mrs. Romero received $45,000 after the sale of the family home in fulfillment of the community property settlement agreed upon by the parties at the time of the divorce.

The conversion of an asset in the form of community property interest, into another form is not in and of itself a change of circumstances. In O'Brien v. O'Brien, 308 So.2d 333 (La.App. 1st Cir. 1975) writ denied 311 So.2d 262, the wife had not only converted her community property interest into cash but was earning substantial interest on the proceeds. The court stated that:

"Under the doctrine of the Bernhardt, [supra] and Bazzell [v. Bazzell, 289 So.2d 202 (La.App. 1st Cir.1973)] cases, had the defendant herein not converted the property received in the community property settlement prior to the divorce suit into cash there could be no reduction in alimony. Had she converted it into cash and not put it at interest there could be no reduction. We feel that to reduce the alimony payments because of the interest income would be contrary to law since there is no real change in her circumstances, particularly during such times of inflation as we now have before us. By investing the money at interest she is merely attempting to protect the property freely conveyed to her for due consideration by her late husband from depreciation. She was merely selling a large estate which, due to the family difficulties, was no longer necessary and purchasing a modest estate to be occupied by herself and her children. To punish her for this prudent handling of her affairs would be unjust."

While Mrs. Romero may not have been as prudent in her handling of her finances, she has provided herself with a home, and relieved herself of the burden of rent.

Since the O'Brien decision was rendered, La.C.C. art. 160 has been amended to include liquidity of assets among the factors to be considered in determining entitlement to and amount of alimony.

"While the statute directs that liquidity be considered by the court in determining whether a modification of alimony may be warranted, the court is not limited in considering and weighing all relevant factors and circumstances of the individual case. In some circumstances, liquidity alone may be controlling, while in others it may not." Davis v. Davis, 445 So.2d 121 (La.App. 2nd Cir.1984).

*771

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