Tschirn v. Harrington

434 So. 2d 109, 1983 La. App. LEXIS 8867
CourtLouisiana Court of Appeal
DecidedJanuary 10, 1983
DocketNo. 5-350
StatusPublished
Cited by4 cases

This text of 434 So. 2d 109 (Tschirn v. Harrington) 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
Tschirn v. Harrington, 434 So. 2d 109, 1983 La. App. LEXIS 8867 (La. Ct. App. 1983).

Opinion

CHEHARDY, Judge.

This appeal arises from a judgment on a rule for contempt filed against Darryl J. Tschirn by his former wife, now Mrs. Mary K. Kurzweg. Mrs. Kurzweg alleged Mr. Tschirn was in contempt of court for failing to pay tuition, medical, dental and drug expenses of his two minor children pursuant to an April 21, 1975 consent judgment sel/ ting child support. Mrs. Kurzweg sought to have Mr. Tschirn imprisoned until the alleged arrearages were paid.

By written opposition to the rule for contempt, Mr. Tschirn averred that the 1975 consent judgment had been superseded by a June 10, 1981 judgment in which tuition, [111]*111medical, dental and drug expenses were not mentioned. He stated that he had complied with all other portions of that 1981 judgment and thus was not in arrears in his child support. Therefore, he contended, he could not be held in contempt of court.

After a hearing on the rule on February 17, 1982, the trial court rendered a judgment finding that Mr. Tschirn was not in contempt of court. The trial judge stated in the judgment:

“ * * * [Tjhere is as much substance to Mr. Tschirn’s contention that the June 10, 1981, judgment completely replaced the April 21,1975, consent judgment as there is to Mrs. Kurzweg’s argument that the June 10, 1981, judgment modified only the so-called ‘cash portion’ of the earlier judgment and not the ‘in kind portion.’ ”

In an attempt to be fair to the parties, and to clarify the parties’ respective rights and liabilities, the trial judge then rendered a judgment not only incorporating the provisions of the 1981 judgment ($1,250 a month child support plus one-half the children’s summer camp expenses), but also including the provision that Mr. Tschirn pay all tuition, medical, dental, drug and hospital expenses thereafter incurred by his minor children.

Mr. Tschirn has appealed, and Mrs. Kurz-weg has answered the appeal.

Mr. Tschirn contends the trial judge erred by entering a new judgment on February 17, 1982 restating his child support obligations, because these were not properly before the court. In the alternative, if this court does not decide in his favor on that point, he raises several other specifications of error.

Mrs. Kurzweg contends the trial judge erred by failing to find Mr. Tschirn in contempt of court, and by failing to make the alleged arrearages executory. She also avers the trial court should have assessed attorney’s fees and costs against Mr. Tschirn.

Child support and alimony were first established between the parties by an April 21, 1975 consent judgment setting each at $750 per month, for a monthly total of $1,500 to be paid by Mr. Tschirn to his former wife. That judgment also incorporated by reference a document entitled “Separation Agreement and Settlement of Community Property.” That separation agreement provided in Paragraph 12, among other things, “In addition, Darryl will pay all tuition, medical, dental, drug and hospital bills incurred by or for the benefit of the minor children.”

Subsequently the former Mrs. Tschirn remarried, becoming Mrs. Kurzweg, and her alimony payments were discontinued. After her remarriage, she filed a rule to increase the child support being paid by Mr. Tschirn from $750 a month to $1,500 a month. That rule was heard in April 1981, and judgment was rendered on June 10, 1981. That judgment stated:

“After considering the testimony and the documents in evidence,

IT IS ORDERED:

(1) That DARRYL H. TSCHIRN pay the sum of $1,250.00 per month to his former wife, Mary K. Tschirn, for the support and maintenance of the two minor children born of this marriage, Darryl and Kathryn Tschirn;
(2) That Mr. Tschirn pay one-half (½) of summer camp expenses; and
(3) That Mr. Tschirn pay all costs [with] regard to the rules that were before the court on April 7,1981.
“JUDGMENT READ, RENDERED AND SIGNED in open court in Gretna, Louisiana, this 10th day of June, 1981.”

Unlike the 1975 judgment, the 1981 judgment neither referred to the separation agreement, nor specifically mentioned the payment of tuition and medical expenses. Mr. Tschirn has paid the $1,250 regularly when due, as well as half the summer camp expenses. However, he has refused Mrs. Kurzweg’s demands that he continue paying the children’s tuition and medical expenses. He takes the position that the 1981 judgment is complete in itself. Mrs. Kurz-weg, on the other hand, insists that the 1981 judgment was always intended to supplement, not to supersede, the 1975 judgment.

[112]*112In construing an ambiguous judgment, resort may be had to the entire record to aid in arriving at its meaning or to clarify its intention. Kilcrease, Ehlinger & Faulkner, Inc. v. McLeod, 357 So.2d 67 (La.App. 4th Cir.1978). Although we do not find the 1981 judgment to be ambiguous on its face, we are willing to give the litigants the benefit of the doubt. The parties made numerous references, in their briefs and in oral argument before this court, to the transcript of the April 7, 1981 proceedings upon which the June 10, 1981 judgment was rendered. Each side contends the testimony in those proceedings will establish his or her position. Mr. Tschirn has even appended a copy of that transcript to his brief.

The April 7, 1981 transcript, however, is not contained in the record before us, and it was not entered into evidence by either party during the February 1982 rule for contempt. This court can render judgment only on the record before it, and will not consider matters outside the record. See LSA-C.C.P. art. 2164. Accordingly, we cannot look into the testimony of April 7, 1981.

We find nothing in the pleadings or the testimony of the February 1982 proceedings that establishes any error by the trial judge in dismissing the contempt rule. Because we find neither manifest error nor abuse of his discretion, that ruling is affirmed.

It follows logically that Mrs. Kurzweg’s answer to the appeal is dismissed. Our conclusion on the contempt issue means there are no arrearages to be made executo-ry, and therefore she is not entitled to attorney’s fees from Mr. Tschirn.

Mr. Tschirn may nonetheless be liable to Mrs. Kurzweg for payment of the children’s tuition and medical expenses on the ground of breach of contract, since the separation agreement is a conventional obligation between the parties. Enforcement of that obligation, however, would be properly pursued by a direct action between the parties. LSA-C.C. art. 1926; LSA-C.C.P. art. 423; Pearlstein v. Mattes, 199 So. 151 (Orl.La.App.1940). See also McGaw v. O’Beirne, 126 La. 584, 52 So. 775 (1910). The enforceability of the separation agreement is not before us on this appeal, however, and therefore we do not rule on Mr. Tschim’s obligations under that document.

The final question we must address is whether the trial judge erred in entering a new judgment setting forth Mr. Tschirn’s child support obligations on February 17, 1982.

LSA-C.C.P. art. 1951 provides:

“A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or

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Related

Perkins v. Guidry
191 So. 3d 1182 (Louisiana Court of Appeal, 2016)
Texas Bank of Beaumont v. Bozorg
496 So. 2d 1215 (Louisiana Court of Appeal, 1986)
Tschirn v. Tschirn
434 So. 2d 113 (Louisiana Court of Appeal, 1983)
Tschirn v. Harrington
436 So. 2d 1167 (Supreme Court of Louisiana, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
434 So. 2d 109, 1983 La. App. LEXIS 8867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tschirn-v-harrington-lactapp-1983.