Landry v. Landry

• Citation: 516 So.2d 217
• Decision Date: 17 November 1987
• Docket Number: No. CA,CA
• Parties: June Gardner LANDRY v. Charles R. LANDRY. 6719. 516 So.2d 217
• Court: Court of Appeal of Louisiana (US)

Page 217

516 So.2d 217

June Gardner LANDRY v. Charles R. LANDRY.

No. CA 6719.

516 So.2d 217

Court of Appeal of Louisiana,

Fourth Circuit.

Nov. 17, 1987.

Charles R. Jones, Jones and Murray, New Orleans, for appellee.

Bennett Wolff, New Orleans, for appellant.

Before BYRNES and LOBRANO, JJ., and CADE, J. Pro Tem.

HERBERT A. CADE, Judge Pro Tem.

Judgment was rendered in May of 1983 ordering appellant, Charles R. Landry, to pay child support in the sum of $150.00 per month for the support of his minor daughter, Joy Landry. At the time Joy was residing with her mother, June Landry. Subsequently Joy left her mother's home, without her mother's consent, with the assistance of her father. She spent part of the summer with him and the remainder with his relatives. At the end of the summer she returned again to live with her father.

July 21, 1983, June Landry filed a petition for writ of habeas corpus directing the father to relinquish the physical custody of Joy Landry and a rule for contempt and past due child support. Both were continued indefinitely. September 6, 1984, she filed a second rule for past due child support, and a rule to increase child support. These were also continued indefinitely. In October of 1984 the child returned to live with her mother.

June Landry died on June 27, 1985. Joy Landry resumed living with her father, her natural tutor. November 6, 1985, Randy Hutchins, testamentary executor of the estate of June Landry, filed suit for contempt and past due child support and attorney's fees. Exceptions of no cause and no right of action were overruled. In reasons for judgment the trial court stated:

Pertinent to the decision in this matter are two cases: Halcomb v. Halcomb, 352 So.2d 1013 [ (La.1977) ] and McManus v. McManus, 428 So.2d 854 [ (La.App.1st Cir.1983) ]. Those cases establish that the person awarded child support is "the party who is entitled thereto." In addition, under Louisiana Civil Code Article 1766, it is the court's opinion that the third paragraph of that article, combined with the reading of the Halcomb [case] disposed of the issue. Article 1766, in pertinent part reads, "When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of the obligee." The Court finds that the payment of child support is for the benefit of not only the person to whom the payment is made, but also for the benefit of the child to whom a duty of support is owed. Therefore, it is apparent that the obligation to support the child is not a personal obligation. It is an inheritable [sic] obligation ... The Court finds that Mr Hutchins can maintain this cause of action ...

The trial court further found that there was no implied agreement to suspend the support payments during the fourteen month period that the minor child resided with her father. Judgment was entered awarding arrearages to Mrs. Landry's succession.

Appellant argues that the trial court erred in overruling his exception, in failing to find an implied agreement to modify child support payments, and in disallowing a credit for expenses...