Wascom v. Wascom

713 So. 2d 1271, 1998 WL 391639
CourtLouisiana Court of Appeal
DecidedJune 29, 1998
Docket97 CA 0547
StatusPublished
Cited by10 cases

This text of 713 So. 2d 1271 (Wascom v. Wascom) 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
Wascom v. Wascom, 713 So. 2d 1271, 1998 WL 391639 (La. Ct. App. 1998).

Opinion

713 So.2d 1271 (1998)

Malcolm Lee WASCOM, Jr.
v.
Lucy F. WASCOM.

No. 97 CA 0547.

Court of Appeal of Louisiana, First Circuit.

June 29, 1998.

*1272 Sondra A. Cheek, Bogalusa, for Defendant-in-Rule/Appellant Malcolm Lee Wascom, Jr.

Jill E. Leber, Covington, for Plaintiff-in-Rule/Appellee Lucy F. Wascom.

Before GONZALES, PARRO and GUIDRY, JJ.

GUIDRY, Judge.

The defendant-in-rule appeals from the trial court judgment awarding permanent alimony in favor of his former wife. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Malcolm L. Wascom, Jr. ("Malcolm") and Lucy F. Wascom ("Lucy") were married on December 10, 1977. One child, Amy L. Wascom ("Amy"), was born of their marriage on November 13, 1980. They separated on May 12, 1994. By judgment dated August 18, 1994, Lucy was awarded alimony pendente lite of $650.00 per month and child support *1273 for Amy of $564.00 per month.[1] The parties were divorced by judgment dated January 19, 1995, on the ground that they had lived separate and apart for 180 days.

On May 22, 1995, Lucy filed a rule for permanent alimony and an increase in child support. The rule for permanent alimony was dismissed by the trial court pursuant to Malcolm's exceptions raising the objections of unauthorized use of summary proceeding, vagueness, and no cause of action. From the order sustaining the exceptions, Lucy applied for supervisory writs. On December 14, 1995, the writ was granted by this court, reversing the trial court judgment sustaining the exceptions and dismissing Lucy's rule for permanent alimony. Wascom v. Wascom, 95 CW 1933 (La.App. 1st Cir. 12/14/95).

Following the hearing on Lucy's rule for permanent alimony, the trial court awarded her $350.00 per month as permanent alimony. From the judgment awarding permanent alimony, Malcolm filed a motion for new trial, which was denied by the trial court. Subsequently, he filed this appeal, in which he contends the trial court erred in finding that Lucy had insufficient means for her support and failing to require that she deplete her liquid assets prior to being entitled to permanent alimony.

DISCUSSION

Alimony after divorce is regulated by LSA-C.C. art. 112(A),[2] which provides in pertinent part:

(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.
(4) Permanent periodic 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.

Permanent alimony is awarded to a former spouse in need, and it is limited to an amount sufficient for the former spouse's maintenance. Settle v. Settle, 25,643, p. 6 (La.App. 2nd Cir. 3/30/94), 635 So.2d 456, 460, writ denied, 94-1340 (La.9/16/94), 642 So.2d 194; see Loyacano v. Loyacano, 358 So.2d 304, 310 (La.1978), vacated on other grounds, sub nom. Loyacano v. LeBlanc, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979), reinstated, 375 So.2d 1314 (La.1979). The claimant spouse has the burden of proving insufficient means of support. Moreau v. Moreau, 553 So.2d 1064, 1065 (La.App. 3rd Cir.1989); see Frederic v. Frederic, 302 So.2d 903, 906 (La.1974). Until need has been demonstrated, the other spouse's financial means are irrelevant. Kean v. Kean, 388 So.2d 398, 401 (La.App. 1st Cir.1980). Thus, the initial inquiry is whether Lucy proved *1274 that she did not have sufficient means for her support.[3]See Wade v. Wade, 25,942, p. 4 (La.App. 2nd Cir. 8/17/94), 641 So.2d 989, 991.

"Means" include both income and property. Loyacano v. Loyacano, 358 So.2d at 310. "Support" means a sum sufficient for the claimant spouse's maintenance, which includes the allowable expenses for food, shelter, clothing, reasonable and necessary transportation or automobile expenses, medical and drug expenses, and the income tax liability generated by alimony payments. Wade v. Wade, 641 So.2d at 991. For purposes of determining alimony, the term "support" does not encompass miscellaneous expenses. Parker v. Parker, 93-817, p. 3 (La. App. 3rd Cir. 3/2/94), 634 So.2d 1231, 1233. In deciding entitlement and amount of alimony, the court should consider, among other things, the income, means and assets of the spouses; the financial obligations of the spouses, including their earning capacities; the time necessary for the recipient to acquire appropriate education, training or employment; and the health and age of the parties. Wade v. Wade, 641 So.2d at 991-92. The trial court has great discretion in fixing alimony awards, and such awards should not be disturbed absent a clear abuse of that discretion. Wade v. Wade, 641 So.2d at 992.

Lucy was employed on a part-time basis as a food service clerk at Franklinton Junior High School where Amy went to school. Testimony indicated that she worked only while Amy attended special-education classes at school. Her employment allowed her to bring Amy to school, assist her to her classroom, and take her home once she completed her school day. The rest of Lucy's time was spent caring for Amy, whom she testified was both mentally and orthopedically handicapped as a result of a childhood illness. Because of her disabilities, Amy, although fifteen years old at the time of the hearing, needed someone with her most, if not all, of the time to assist her with regular daily activities. In light of the evidence presented, the trial court found that Amy was mentally and physically handicapped, such disabilities may never resolve, and she may continue to need care and supervision for her entire life. These findings of fact were not challenged on appeal.

In the division of the community assets, Lucy received:

the former family home, which was free of debt,
¼ value in cash of the cattle belonging to the community,
½ of the money in certain accounts in Washington Bank and Trust Company,
½ of the money in a certain account in First State Bank and Trust Company,
the former family car, which was free of debt,
½ of certain stock of Spring Creek Milling Co-Op,

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Cite This Page — Counsel Stack

Bluebook (online)
713 So. 2d 1271, 1998 WL 391639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wascom-v-wascom-lactapp-1998.