Dufrene v. Dufrene
| Decision Date | 11 April 1983 |
| Docket Number | No. 82-CA-156,82-CA-156 |
| Citation | 430 So.2d 759 |
| Parties | Beverly Bergeron DUFRENE v. James T. DUFRENE. |
| Court | Court of Appeal of Louisiana — District of US |
Don Almerico and Jerome A. Kunkel, Norco, for James T. Dufrene defendant-appellant.
Leon C. Vial, III, Hahnville, for Beverly Bergeron Dufrene plaintiff-appellee.
Before BOUTALL, CHEHARDY and GRISBAUM, JJ.
This case arises from a rule to increase child support. From a judgment in the mother's favor the father has taken this appeal.
Beverly Bergeron Dufrene and James T. Dufrene were divorced on August 13, 1980. The judgment awarded permanent custody of the couple's minor daughter and son to the wife and condemned the husband to pay child support of $500 per month. On June 2, 1982, Mrs. Dufrene filed a rule for an increase in child support. 1 Mr. Dufrene then filed a rule to decrease support.
Judgment was rendered August 20, 1982, increasing child support to $750 per month. This appeal followed. We decrease the amount.
No written reasons for judgment were provided. The issue before us is whether the trial judge's award was justified by the record or whether it was an abuse of the court's discretion in setting child support.
At the time of trial the two children were fourteen and fifteen years old and were in high school. Mrs. Dufrene had been employed steadily for nine months, earning $4.50 per hour, averaging $95 to $120 net earnings per week. She had not been employed at the time of the divorce decree. The gist of Mr. Dufrene's complaint is that he is in fact supporting his ex-wife in the guise of child support when she has an income of her own and was not awarded alimony; further that a decrease in child support is indicated, as Mrs. Dufrene's employment has increased her income.
The jurisprudence in Louisiana is well settled that a parent seeking an adjustment in a child support award has the burden of proving a change in the financial situation of himself or the other parent. Howell v. Howell, 391 So.2d 1304 (La.App.4th Cir.1980); Reavill v. Reavill, 370 So.2d 175 (La.App.3rd Cir.1979). However, a change in circumstances resulting from inflation alone is insufficient to justify a change in support, as inflation affects the financial condition of both parents. Ducote v. Ducote, 339 So.2d 835 (La.1976), and cases cited therein.
Louisiana Civil Code article 227 provides that both parents have a duty to support, maintain, and educate their children, while article 231 provides that support is to be based on both the child's need and "the circumstances of those who are to pay it." In fixing child support much discretion rests with the trial judge, and his determination is only changed on appeal when it is apparent that he abused his discretion or was manifestly erroneous. Reavill v. Reavill, supra, and cases cited therein.
We first consider whether or not Mrs. Dufrene carried her burden of proof as to an increase in her needs related to supporting the children. Her petition states only that "... $500.00 per month is inadequate for the needs of the minors." She introduced into evidence a compilation of monthly expenses which total $890.75. If $100.00 "for starting school," presumably books, supplies, and fees, is prorated over twelve months, the total is $799.09. The trial transcript is extremely brief and neither side elicited detailed information regarding specific items of expense.
The appellant attacks Mrs. Dufrene's expense list on two grounds. He asserts that the list includes items for Mrs. Dufrene's benefit as well as the children's, i.e. food, utilities, house note, insurance, telephone, auto insurance and gasoline, and that these items should be discounted. His other complaint is that Mrs. Dufrene failed to show any rise in the children's expenses other than those resulting from inflation. The testimony as to both issues was meager, to say the very least.
The difficulty of apportioning household expenses between custodial parent and child with any degree of precision has been noted in the jurisprudence. Fall v. Fontenot, 307 So.2d 779 (La.App.3rd Cir.1975); Bettencourtt v. Bettencourtt, 407 So.2d 804 (La.App.4th Cir.1981); Coulon v. Coulon, 389 So.2d 78 (La.App.4th Cir.1980).
In Shanklin v. Shanklin, 339 So.2d 1262 (La.App.1st Cir.1976), cited by the appellant, the court said of the wife's overlapping expenses, at 1263:
This case has not been interpreted to mean, as appellant would have it, that the items of food and clothing should be stricken entirely. In Laballe v. Laballe, 352 So.2d 330 (La.App.4th Cir.1977) the court accepted testimony as to the per child share of food, utilities, and shelter, citing Shanklin, supra, as authority. We agree with the court in Nelms v. Nelms, 413 So.2d 1341, 1342 (La.App.1st Cir.1982), which said at 1343:
"... That portion of the household expenses which can be attributed to the children's use is a proper item to be considered in determining child support...." (Cases omitted)
Accordingly, we shall attribute to the children two-thirds of the expenses for the house note, utilities, insurance, telephone, and automobile, and deduct one-third, or $141.46, attributable to Mrs. Dufrene, resulting in total children's expenses of $658.63, the amount we perceive to be the maximum amount awardable.
As stated earlier, the party seeking an increase may not base his plea on changed expenses that are due to inflation alone. Ducote, supra. In Duplantis v. Monteaux, 412 So.2d 215 (La.App.3rd Cir.1982) the court increased support for two children when the wife testified that their entry into grade school had increased such expenses as transportation and clothing. In Hyams v. Hyams, 365 So.2d 527 (La.App.3rd Cir.1978) the court acknowledged that:
"The needs and wants of a teenage girl just beginning high school are necessarily greater and more costly than the needs of a girl of twelve...." Id. at 529.
While the testimony is sparse, we believe that the court reasonably concluded that the Dufrene children's...
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