Chaisson v. Domingue

• Decision Date: 02 June 1965
• Docket Number: No. 1423,1423
• Citation: Chaisson v. Domingue, 175 So.2d 902 (La. App. 1965)
• Parties: Ella CHAISSON, Plaintiff-Appellant, v. Whitley DOMINGUE, Defendant-Appellee.
• Court: Court of Appeal of Louisiana

Page 902

175 So.2d 902

Ella CHAISSON, Plaintiff-Appellant, v.Whitley DOMINGUE, Defendant-Appellee.

No. 1423.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1965.

Simon & Trice, by Phil Trice, Lafayette, for plaintiff-appellant.

Albert Karre, Lafayette, for defendant-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

FRUGE , Judge.

The parties to this suit were divorced by judgment of December 16, 1958.At that time alimony and child support was fixed by stipulation at $60.00 per month, but was soon afterward reduced on motion of defendant to $50.00 per month.The present action was brought by Ella Chaisson, the former wife of Whitley Domingue, seeking an executory judgment as to past due alimony and praying that the amount of alimony be increased.DefendantWhitley Domingue moved to terminate the plaintiff's right to alimony.After trial on the rule, judgment was rendered terminating plaintiff's alimony and fixing child support for plaintiff's eighteen year old son at $15.00 per month.Past due alimony was computed to be $223.00.Plaintiff takes this appeal.

The trial judge terminated plaintiff's alimony for the reason that she no longer could be considered as being in need.In so finding, the trial judge relied on the fact that plaintiff was employed in a canning factory and was earning on an average approximately $40.00 per week.Although this work was seasonal, the factory operating about six months a year, there is no indication that plaintiff could not obtain employment elsewhere during the off-season.She had worked as a waitress previous to her employment in the canning factory.

DefendantWhitley Domingue, now remarried and the father of a child by the second marriage, is a city employee with net earnings of $201.00 per month.The record suggests that both he and plaintiff, Ella Chaisson, may derive some other income from immovable property formerly held by the community that existed between them, but the extent of such income is not disclosed.

The record is entirely devoid of any evidence concerning the necessary expenses of either party, but in this instance it may be assumed that with such modest incomes there is little surplusage after all necessary expenditures are met.

Under these factswe do not believe the trial judge has erred in terminating alimony due plaintiff.Her income, although not large, is only slightly less than that of her former husband.

The fixing of child support due plaintiff for the benefit of her minor son, Russell James Domingue, at $15.00 per month raises a more serious problem.

Defendant discontinued regular payments of $50.00 per month after Russell reached his eighteenth birthday.He did so in the belief that his son was then able to obtain employment and make his own livelihood.At that time Russell was not attending school, having voluntarily 'dropped out' about a year and a half previously.There is evidence that defendant sought employment for his son but that Russell either refused to accept work or did not take advantage of an interview arranged for him.There is, however, testimony by the mother, which apparently did not impress the trial judge, that her son was physically disabled from working.This testimony indicated that Russell, when a small child, had incurred a severe burn on his back, from which he had never completely recovered.There is, however, no medical testimony concerning this injury.

The support due by a father to his children has as its basis Louisiana Civil Code Article 227, which provides that this obligation is incurred by both parents by the very act of marrying.The amount of this support, commonly referred to as alimony, is determined by taking into consideration the needs of the person who claims it and the means of the person by whom it is owed.LSA-C.C. Art. 231;Lytell v. Lytell, La.App. 4th Cir., 144 So.2d 925.Each case dealing with alimony must necessarily be determined by its own peculiar facts;Harris v. Harris, La.App. 3rd Cir., 127 So.2d 747.

No authority has been cited by counsel in brief, nor has our search through the Louisiana jurisprudence revealed any case relieving a father of the responsibility of supporting his minor child because of that...