Daigrepont v. Daigrepont

• Decision Date: 07 November 1984
• Docket Number: No. 83-985,83-985
• Citation: 458 So.2d 637
• Parties: Elric P. DAIGREPONT, Plaintiff-Appellant, v. Katherine T. DAIGREPONT, Defendant-Appellee. 458 So.2d 637
• Court: Court of Appeal of Louisiana — District of US

Page 637

458 So.2d 637

Elric P. DAIGREPONT, Plaintiff-Appellant, v. Katherine T. DAIGREPONT, Defendant-Appellee.

No. 83-985.

458 So.2d 637

Court of Appeal of Louisiana,

Third Circuit.

Nov. 7, 1984.

Darrel D. Ryland and Steve Gunnell, Marksville, for plaintiff-appellant.

Clark C. Roy of Knoll and Knoll, Marksville, for defendant-appellee.

Before GUIDRY, STOKER and YELVERTON, JJ.

GUIDRY, Judge.

Elric P. Daigrepont filed for and obtained a judgment of absolute divorce against his wife on the ground of adultery. The judgment of divorce, which is dated August 26, 1983, awarded Mr. Daigrepont sole custody of their seven year old child, Heidi, subject to specified visitation rights granted in favor of Mrs. Daigrepont. The judgment orders Mr. Daigrepont to pay $125.00 per month to his wife to "defray expenses incurred by KATHERINE T. DAIGREPONT in the exercising of visitation rights with the minor child, HEIDI DAIGREPONT." Elric Daigrepont appeals the judgment only insofar as it compels him to pay $125.00 per month to the defendant. There has been no appeal or answer to the appeal by Mrs. Daigrepont.

The sole issue on appeal is whether the trial judge abused his discretion in ordering plaintiff to pay the aforesaid sum monthly to Mrs. Daigrepont.

We have some difficulty in characterizing the monthly payments which appellant has been ordered to make. The final judgment specifies that the payments are to be made to "defray expenses incurred by KATHERINE T. DAIGREPONT in the exercising of visitation rights with the minor child, ...". The trial court's oral reasons for judgment reflect that the payments are to be made as "child support for the time the child is visiting with the mother." However, whether the payments be considered as permanent alimony or child support, we conclude that the trial court clearly erred in ordering any payment to Mrs. Daigrepont.

Clearly Mrs. Daigrepont is not entitled to permanent alimony. Only a spouse free from fault and without means for support is entitled to post divorce alimony. La.C.C. Art. 160. Likewise, we determine that the trial court erred if the ordered payments be considered as child support.

In Ducote v. Ducote, 339 So.2d 835 (La.1976), our Supreme Court held:

"Louisiana Civil Code Article 227 provides that parents have the obligation to support, maintain, and educate their children. This support shall be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if they resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953); Sarpy v. Sarpy, La.App., 323 So.2d 851 (1975), cert. denied, La., 328 So.2d 166 (1976); Phillips v. Phillips, La.App., 319 So.2d 566 (1975)." (Emphasis added).

The phrase "parent who is to pay" has been consistently interpreted by the jurisprudence to mean the non-custodial parent. Child support is the property of the spouse who is granted custody. Blackburn v. Barrios, 427 So.2d 482 (La.App. 5th Cir.1983), writ denied, 433 So.2d 1051 (La.1983); In Re Jones, 337 So.2d 283 (La.App. 2d Cir.1976), writ denied, 340 So.2d 314 (La.1976). In Updegraff v. Updegraff, 421 So.2d 1165 (La.App. 2d Cir.1982), the court stated, "child support is to be fixed in proportion to the needs of the children and the non-custodial parent's ability to pay." (Emphasis ours)

There are countless examples of our judiciary's interpretation of the phrase "parent who is to pay." In Pierce v. Pierce, 397 So.2d 62 (La.App. 2d Cir.1981), the court opined that "a parent may suspend the right to collect the support by turning a child over to the parent who owes the duty of support." This clearly evidences the fact that it is the non-custodial parent who owes the duty of support to the custodial parent. While it is well settled that the law imposes upon parents the mutual obligation of their children's support, maintenance and education, the customary duties performed and services rendered by the custodial parent on a daily basis contribute substantially to the mutual obligation of support. Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978); Ducote, supra. The court in Ramos v. Ramos, 425 So.2d 989 (La.App. 5th Cir.1983), reaffirmed the position...