Wall v. Wall

440 So. 2d 533, 1983 La. App. LEXIS 9269
CourtLouisiana Court of Appeal
DecidedOctober 6, 1983
DocketNo. CA-0402
StatusPublished
Cited by2 cases

This text of 440 So. 2d 533 (Wall v. Wall) 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
Wall v. Wall, 440 So. 2d 533, 1983 La. App. LEXIS 9269 (La. Ct. App. 1983).

Opinion

BARRY, Judge.

Both parties in this domestic dispute question a myriad of factual determinations in a community property partition and the wife appeals the denial of increased child support.

James T. Wall, III (James) and Maureen O’Brien Wall (Maureen) were married in June, 1968 and had two children, now age 7 and 10. Maureen secured a separation based on abandonment on June 29,1978 and by joint stipulation she got custody of the children and child support and visitation were set. On September 1, 1978 James filed to partition the community, Maureen answered, then reconvened on December 18, 1978. The next day the parties entered a consent judgment on the record which divided all of the community immovables and most of the other community property. Immediately following the consent judgment they executed an “Act of Partition & Community Settlement” which incorporated the provisions of the oral consent judgment.

On June 4, 1980 James filed a Petition to Enforce or Annul Community Property Settlement in which he alleged there were items to which he was entitled pursuant to the partition agreement which he had not received. He also specified community obligations which were paid from his separate estate, as well as debts which were owed by the community. Maureen reconvened for delivery of items allegedly due under the property settlement, for reimbursement of [535]*535income allegedly received by James, for reimbursement of interest and penalties assessed by the Internal Revenue Service, and for attorney’s fees.

A divorce judgment was rendered on October 23, 1980 which continued Maureen’s custody of the children and the existing child support of $400 per month per child. A judgment on April 16, 1981 allocated certain community property between the ex-spouses and determined various debts were to be paid by the community, or by James or Maureen individually. The judgment did not address several claims, both spouses applied for a new trial which was denied, and they now appeal.

James filed several rules to reduce the child support and Maureen has sought an increase. On April 21, 1982 the trial court denied simultaneous rules to increase or decrease the award and only Maureen appealed from that denial.

CHILD SUPPORT

The $400 per month per child support stipulated in 1978 was continued in the October, 1980 divorce decree. Despite three rules to decrease by James and one rule to increase by Maureen, the $800 per month has not changed.

Maureen claims her expenses for the children have increased and despite James’ alleged meager income, his lifestyle indicates sufficient means to pay $1400 a month. She asserts the trial court gave undue weight to James’ testimony which she says is “replete with egregious contradictions.”

The record shows that during and after the marriage, James derived his principal income from renovation and sale of old buildings. He testified that he owns several pieces of real estate, but mortgage payments and other expenses substantially exceed the rental income. He stated the real estate business is currently “very slow” and he has been unable to sell the properties at a profit. His federal tax returns show only $9,328 income for 1980 and $6,322 for 1981.

James testified he was unemployed and looking for a job in Nashville where he lives with his second wife who is also unemployed and permanently disabled due to a back injury. Maureen disputes James’ financial status, citing his testimony that he honeymooned in Mexico, drives a Jaguar, belongs to a country club, and owns several houses. She also points to over $500,000 which passed through his corporate bank account in one year which he said was borrowed to buy and renovate the properties which are losing money.

James counters that his financial circumstances have worsened, whereas Maureen receives $900 per month from a former community mortgage note, plus the $800 monthly child support. She also owns two unencumbered lots in Mandeville appraised at $60,000, in addition to a condominium from which she has not attempted to secure income. Further, Maureen admitted she and the children are living rent-free in a house owned by her aunt, although she claimed housing expenses of $379.50 per month in her expense sheet.

As in most cases involving support (child or alimony), this record is replete with charges, denials, accusations and contradictory statements with disputed facts and figures. Child support awards are not subject to change absent a change in the circumstances of the parties. Laird v. Laird, 363 So.2d 244 (La.App. 4th Cir.1978). After hearing lengthy, conflicting testimony and reviewing numerous exhibits, the trial judge found Maureen failed to prove her ex-husband’s circumstances had changed sufficiently to warrant an increase in the support award. We all know trial courts are accorded great discretion in child support matters and we find no abuse of that discretion.

COMMUNITY PROPERTY PARTITION

JAMES’ ASSIGNMENTS OF ERROR

A. Award of certain jewelry.

James complains the trial court’s award to Maureen of her diamond engagement ring, platinum wedding band, and two other bracelets was improper. He cites the provision in the partition agreement which [536]*536awarded to each spouse, as his or her separate property, “all gifts made to either party” by his or her parents or other blood relatives. According to James, the items in question were Wall family heirlooms which should be returned to his mother and grandmother.

Maureen points out that, in addition to the general “gift from family” provision, the agreement contained a more specific clause in which the parties allotted to James “all of the guns, hunting equipment, tools and building materials and [stipulated] that Mrs. Wall will receive all of her personal jewelry.” Maureen relies on the principle that, in contract interpretation, the more specific provision controls the general, citing Mixon v. St. Paul Fire & Marine Ins. Co., 84 So. 790, 147 La. 302 (1920). She argues that, in the partition agreement, the general language regarding gifts is modified and controlled by the clause explicitly allocating the hunting equipment to James and the jewelry to her. Maureen says this interpretation is supported by the evidence that the hunting paraphernalia included guns, a pirogue, camping equipment and building materials of substantial value which were intended to be offset by her retention of the jewelry, which was the only jewelry she owned of any significant value.

Maureen also says that although the diamond in her engagement ring originally belonged to James’ grandmother, she selected the setting and received the ring as an engagement gift from her then-fiancé, not as a gift from her in-Iaws-to be. Similarly, the wedding band may have once belonged to her husband’s grandmother, but it was a gift from her husband at their wedding.

Maureen argues, alternatively, that since the partition agreement purported to divide certain community property, prenuptial gifts such as the engagement ring and the bracelet, which are not community property, are not covered by the document. James makes the interesting argument that the “personal jewelry” provision in the partition agreement refers to community property only, but that the “family gift” clause encompasses premarital gifts also.

The trial judge did not assign reasons, but we find his award is amply supported on either of the grounds raised by Maureen.

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Related

Dufrene v. White
483 So. 2d 1195 (Louisiana Court of Appeal, 1986)
Wall v. Wall
444 So. 2d 1223 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
440 So. 2d 533, 1983 La. App. LEXIS 9269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wall-v-wall-lactapp-1983.