Siciliani v. Siciliani

552 So. 2d 560, 1989 WL 134319
CourtLouisiana Court of Appeal
DecidedNovember 1, 1989
Docket20930-CA
StatusPublished
Cited by6 cases

This text of 552 So. 2d 560 (Siciliani v. Siciliani) 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
Siciliani v. Siciliani, 552 So. 2d 560, 1989 WL 134319 (La. Ct. App. 1989).

Opinion

552 So.2d 560 (1989)

Lisa S.J. SICILIANI, Plaintiff-Appellee,
v.
Matthew Paul SICILIANI, Defendant-Appellant.

No. 20930-CA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 1989.
Writ Denied January 5, 1990.

*561 Robert S. Tew, Monroe, for defendant-appellant.

Albert W. Block, Jr., West Monroe, for plaintiff-appellee.

Before SEXTON, NORRIS and HIGHTOWER, JJ.

SEXTON, Judge.

Appellant, Mr. Siciliani, appeals alimony and child support awards in favor of Mrs. Siciliani rendered with a judgment of divorce and sole custody of the minor child of the parties in favor of Mrs. Siciliani.

Facts

The parties were married on May 20, 1983, in Fairfield, California. They have one minor child, Fiona Sadie Marie, who is now either ten or eleven years old.[1] The couple lived in California before their separation in December 1986. On May 25, 1988, the plaintiff, Mrs. Siciliani, instituted a divorce action against Mr. Siciliani, the parties' having at that time lived separate and apart continuously for more than one year.[2] The matter was tried on December 13, 1988, and the trial court granted Mrs. Siciliani a divorce, the sole custody of the parties' minor child, permanent alimony in the amount of $450 per month (or, at Mr. Siciliani's option, continuing to pay the monthly lease payment and monthly insurance payment on Mrs. Siciliani's car, a 1986 Nissan 300ZX), and child support of $685 per month retroactive to June 1, 1988 (subject to credit for payments made during that period). Mr. Siciliani was also required to maintain health and hospitalization insurance on the child.

Mr. Siciliani did not appear at the trial. The trial court judgment was based on Mr. Siciliani's answers to interrogatories, Mrs. Siciliani's affidavit of income and monthly *562 itemized expenses, and Mrs. Siciliani's testimony at trial.

On appeal, Mr. Siciliani contends that the trial court erred in fixing excessive alimony and child support awards. After examining the facts of this case, we cannot say that the trial court abused its discretion in setting the amounts of these awards, and we affirm the judgment below.

Mr. Siciliani's Ability to Pay

Mr. Siciliani contends first on appeal that he is not financially able to pay the alimony and child support awards ordered by the trial court. He notes that his answers to interrogatories show that he now earns only $1,000 per month plus commissions in his job as the finance manager of a car dealership in California. The amount of the commissions was undetermined in the answers to interrogatories since Mr. Siciliani had only been employed by this dealership for one month when he answered them. He claims that this amount of income is insufficient to allow him to pay $1,135 per month to his ex-wife and his child.

The trial court apparently decided not to rely on these latest income figures and looked instead to Mr. Siciliani's past earnings. His interrogatories indicated that he earned $72,000 in 1985. In 1986, he earned $66,000. In either 1987 or 1988, he earned $55,000.[3] Mr. Siciliani was also unemployed for an unspecified portion of 1988, having just begun the job he had at the time of trial on November 8, 1988.[4] The trial court reasoned that Mr. Siciliani had the ability to make at least $55,000 and that this amount of income was sufficient to allow him to pay the alimony and child support awards.

Mr. Siciliani, through counsel at trial, presented no other evidence besides his answers to interrogatories (showing a base salary of $12,000 per year with uncertain commissions) as to his current income. Therefore, the only reference that the trial judge had to make his decision was Mr. Siciliani's past income. The trial judge concluded that he felt that Mr. Siciliani had the capacity to earn at least $55,000 per year and based his award towards this lower end of Mr. Siciliani's past earning scale. This same approach has been approved in other Louisiana appellate decisions where the alimentary obligor's future income is uncertain. See Rutherford v. Rutherford, 452 So.2d 432 (La.App. 3rd Cir.1984); Jessen v. Jessen, 386 So.2d 953 (La.App. 3rd Cir.1980).

Basing the alimony and child support awards on earnings of $55,000 per year, given Mr. Siciliani's list of expenses of approximately $3,950 per month,[5] leaves Mr. Siciliani with disposable income of only approximately $635 per month, obviously not enough to satisfy the alimony and child support awards. As we have noted, the trial judge indicated in reviewing Mr. Siciliani's earnings that he had the potential to earn more than $55,000. The trial judge also indicated in general terms that some of Mr. Siciliani's expenses were inflated.

In this regard, we note that Mr. Siciliani claims a grocery expense in the amount of *563 $450 per month, compared with Mrs. Siciliani's claimed grocery expense for both herself and her daughter of only $300 per month. Mr. Siciliani also claims a dental expense of $100 per month, which appears excessive absent evidence of some unusual dental condition which is not in the record. Mr. Siciliani's telephone expense of $120 per month also seems excessive, especially when compared with Mrs. Siciliani's combined telephone expense for herself and her daughter of only $70 per month. Mr. Siciliani also lists a $250 per month life insurance expense, which cannot be considered in his list of necessary expenses. Vorisek v. Vorisek, 423 So.2d 758 (La.App. 4th Cir.1982). Finally, Mr. Siciliani lists a $350 per month child support expense, which cannot be considered in his list of necessary expenses in order for us to evaluate the correctness of the trial court's child support award.

The trial court is vested with much discretion in fixing awards of alimony and child support. Nowlin v. Nowlin, 482 So.2d 882 (La.App. 2d Cir.1986); Martin v. Martin, 457 So.2d 189 (La.App. 2d Cir. 1984); Sims v. Sims, 457 So.2d 163 (La. App. 2d Cir.1984); Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2d Cir.1982). We therefore determine, considering Mr. Siciliani's expenses and income history, that the trial court's implicit determination that Mr. Siciliani had the means to pay the awards assessed is not an abuse of discretion.

Child Support

Mr. Siciliani also contends that the child support award ordered by the trial court is excessive.

Child support is to be fixed in proportion to the needs of the children and the noncustodial parent's ability to pay. LSA-C.C. Art. 231; Updegraff v. Updegraff, supra; Silas v. Silas, 399 So.2d 779 (La.App. 3rd Cir.1981), writ denied, 404 So.2d 278 (La.1981). If finances permit, children are entitled to the same standard of living which they enjoyed before the marriage ended. Osborne v. Osborne, 512 So.2d 645 (La.App. 2d Cir.1987); Sims v. Sims, supra. Both the mother and the father are obligated to support children. LSA-C.C. Art. 227; Sims v. Sims, supra; Nelson v. Nelson, 335 So.2d 787 (La.App. 1st Cir.1976). The term "maintenance" referred to in LSA-C.C. Art. 227 providing that both the mother and the father share in the obligation of supporting, maintaining, and educating their child is not limited to monetary contributions but includes the day-to-day care and maintenance which the custodial parent gives the child by virtue of his or her physical presence and efforts. LSA-C.C. Art. 227; Sims v. Sims, supra.

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