Fellows v. Fellows

• Decision Date: 19 September 1972
• Docket Number: No. 3954,3954
• Citation: 267 So.2d 572
• Parties: Mrs. Betty K. FELLOWS, Plaintiff and Appellee, v. Charles Lewis FELLOWS, Defendant and Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 572

267 So.2d 572

Mrs. Betty K. FELLOWS, Plaintiff and Appellee, v. Charles Lewis FELLOWS, Defendant and Appellant.

No. 3954.

Court of Appeal of Louisiana, Third Circuit.

Sept. 19, 1972.

Rehearing Denied Oct. 25, 1972.

R. Keith Findley, Lake Charles, for defendant-appellant.

Anderson, Leithead, Scott, Boudreau & Savoy, by Everett R. Scott, Jr., Lake Charles, for plaintiff-appellee.

Before FRUGE , MILLER and DOMENGEAUX, JJ.

DOMENGEAUX, Judge.

This is an appeal by Dr. Charles L. Fellows from the portion of a divorce case judgment which ordered him to pay child support in the amount of $667.00 per month each for three minor children. His former wife, Mrs. Betty K. Fellows, in whose favor the divorce was granted, and who was awarded custody of the three children, answered the appeal seeking an increase in the child support awards, and additionally she asks for alimony for herself which was denied her by the trial court.

A brief resume of the facts shows that the parties herein had been married for over 25 years, and that of the marriage five children were born, namely, Elizabeth and Alice, both of whom were over the age of twenty-one years at the time of the divorce action, and Carol Lynn, twenty years of age, a student at the Louisiana State University School of Nursing in New Orleans; Diane, seventeen years of age, and Laura, fifteen years of age. The latter two were attending high school. Difficulties arose between Doctor and Mrs. Fellows culminating in Mrs. Fellows securing a legal separation and ultimately a divorce. The divorce action was tried in the District Court on April 5, 1972, judgment was rendered on that date and signed on April 10, 1972.

The record shows that Dr. Fellows, a successful physician of many years standing, received from his practice, according to the income tax returns, a gross income of approximately $150,000, leaving a net of approximately $102,000 for the year 1970. At the time of trial his 1971 income tax returns were not completed, according to his testimony, but he estimated his gross income for that year to be approximately $160,000 with an estimated net income of approximately $65,000. There obviously exists a great variance in the buiness expenses of the two years. The community existing between the parties is substantial, it consisting of numerous properties including farm land, commercial buildings, a nursing home, a medical laboratory, cash, stocks, accounts receivable and other assets. After the aforementioned legal separation certain properties were sold voluntarily by Doctor and Mrs. Fellows and certain monies were divided between them, to the extent that at the time of the trial of the divorce action Mrs. Fellows owned some $55,000 in cash, deposited at interest, from which she received approximately $3,600 per year. She also had acquired ownership in some real estate and was recognized as owner of an undivided one-half interest in certain other real property. She owed no personal debts. Except for the voluntary transactions between the parties as mentioned above, the community of acquets and gains between them had not been divided, and by Doctor Fellows' estimate, the value of the undivided community property is in excess of $600,000.

MRS. FELLOWS' RIGHT TO ALIMONY

The right of a wife to be granted alimony after divorce is governed by LSA-Civil Code Article 160, as amended, which reads as follows:

When the wife has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:

1. The wife obtains a divorce;

2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconcilitation between the spouses after a judgment of separation from bed and board, for a specified period of time; or

3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person.

This alimony shall be revoked if it become unnecessary, and terminates if the wife remarries.

The alimony authorized by LSA-C.C. Art. 160 is in the nature of a pension, hence, it is a mere gratuity which is revocable when it becomes unnecessary. McAfee v. McAfee, 249 So.2d 348. In the case of Montz v. Montz, 253 La. 897, 221 So.2d 40 (1969), our Supreme Court held that where the wife had unincumbered property valued in excess of $20,000 she was not entitled to alimony from her exhusband . This court has recently held in the case of Worley v. Worley, 247 So.2d 254, that:

Our jurisprudence construing LSA-C.C. Art. 160 is now established that in determining whether the wife has 'sufficient means for her maintenance' the court must consider any principal and income available to her. Montz v. Montz, 253 La. 897, 221 So.2d 40 (1969); Rabun v. Rabun, 232 La. 1004, 95 So.2d 635 (1957); Stabler v. Stabler, 226 La. 70, 75 So.2d 12; Brown v. Harris, 225 La. 320, 72 So.2d 746; Smith v. Smith, 217 La. 646, 47 So.2d 32.

In view of the clear expressions of C.C. Art. 160 and the jurisprudence interpreting same, and considering the assets owned by Mrs. Fellows, we conclude as did the trial judge, that she is not entitled to alimony.

ON THE QUESTION OF CHILD SUPPORT

When the parties were legally separated, the judgment contained a consent decree ordering Dr. Fellows to pay a lump sum of $2,000.00 per month for alimony to his wife and child support for four minor children (Alice and Carol Lynn were then minors). Able counsel for the Doctor contends, in effect, that the trial judge in the divorce decree awarded the sum of $2,001.00 per month child support for three children, for which there was no justification, inasmuch as there were no changed circumstances shown in either the needs of the three minor children or the ability of the father to pay. The alimony and child support emanating from the separation decree cannot be considered by us. Under our jurisprudence, alimony pendente lite, both for the wife and minor children terminates with a judgment of divorce. Worley v. Worley, supra; White v. Morris, 236 La. 767, 109 So.2d 87 (1959); Davidson v. Jenkins, 216 So.2d 682 (La.App.3rd Cir. 1968). Therefore, the alimony and child support award contained in the separation judgment terminated when the judgment of divorce was signed. Mrs. Fellows, at the trial of the divorce, was not seeking to change a previous award of alimony, which she was not required to do, but instead, she was seeking to prove the basis for a new award.

It is evident from the record that Dr. Fellows, over the years has enjoyed a high financial standard from the income of his...