Mitchell v. Mitchell

• Decision Date: 03 November 1993
• Docket Number: No. 92-1461,92-1461
• Parties: Alice Faye Pullig Tynes MITCHELL, Plaintiff/Defendant in Rule/Appellee, v. Harold M. MITCHELL, Defendant/Plaintiff in Rule/Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 571

626 So.2d 571

Alice Faye Pullig Tynes MITCHELL, Plaintiff/Defendant in Rule/Appellee, v. Harold M. MITCHELL, Defendant/Plaintiff in Rule/Appellant.

No. 92-1461.

Court of Appeal of Louisiana Third Circuit.

Nov. 3, 1993.

Writ Denied Jan. 28, 1994.

Fred S. Gahagan, Natchitoches, for Alice Fay Pullig Tynes Mitchell.

Robert C. Thomas, Natchitoches, for Harold M. Mitchell.

Before DOMENGEAUX, C.J., and GUIDRY, KNOLL, COOKS and WOODARD, JJ.

DOMENGEAUX, Chief Judge.

The issues presented by this appeal are whether the trial court erred in reducing, rather than terminating, an award of permanent alimony and, alternatively, whether the trial judge should have ordered a greater reduction.

Harold Mitchell and Alice Tynes Mitchell were married in 1982. The marriage lasted approximately 14 months and produced no children. In the judgment of divorce rendered November 12, 1984, Harold was ordered to pay Alice $200.00 per month in permanent alimony.

On April 22, 1992, Harold filed this rule to terminate or to reduce alimony, alleging that various physical ailments have produced a drastic reduction in his income. ¹ After trial on the rule, the trial judge ordered that alimony payments be reduced from $200.00 to $150.00 per month. Only Harold has appealed this ruling.

Harold was employed for approximately 20 years as a school bus driver for the Vernon Parish School Board. When this rule was tried, Harold was not working and was awaiting his disability retirement, which he expected to become effective within two or three months. His salary while working full time was $970.00 per month. His anticipated disability benefits were $550.00 per month, minus $138.00 for hospitalization insurance. (The record does not reflect if Harold was paying his insurance premiums while he was working full time.) Since his divorce from Alice, Harold had remarried, and his current wife works part time as a beauty operator.

Harold's disability retirement was apparently not unexpected; according to documents in the record, his health problems had existed since 1986 and had been affecting his job for approximately one year. Yet, six months before trial on this rule, Harold cashed in $40,000.00 in certificates of deposit, spending $20,000.00 on a new pickup truck and giving $20,000.00 to his grown daughter to prevent her from losing her house. He testified that the payment to his daughter was a gift and not a loan. Harold also had recently spent $14,000.00 that he received in an expropriation proceeding to build a beauty shop for his current wife.

After the divorce from Harold, Alice worked steadily at various full time jobs paying between $4.00 and $4.75 an hour. However, in February of 1992, she was briefly laid off from her job at a grocery store. She was subsequently rehired by the store but only for one or two days a week. To supplement her income, she took on a second job, performing demonstrations of new products on a sporadic basis. Her checks from this employment did not include deductions for income and social security taxes, and Alice was responsible for paying for her own product samples. Her income at the time of the rule was shown to be between $62.00 and $65.00 per week. Alice also had approximately $15,000.00 in certificates of deposit that were listed in her name and in the name of her mentally retarded son born of a previous marriage. Alice explained that this money was awarded to her in her first divorce for the educational needs of her son. These certificates of deposit were in existence when alimony was initially ordered in 1984.

Alimony after divorce (permanent alimony) is available when a spouse has not been at fault and has not sufficient means for support. La.C.C. art. 112A. (1). La.C.C. art. 112A. (2) provides that in determining the entitlement and amount of alimony after divorce, the court shall consider the following factors:

(a) The income, means, and assets of the spouses;

(b) The liquidity of such assets;

(c) The financial obligations of the spouses, including their earning capacity;

(d) The effect of custody of children of the marriage upon the spouse's earning capacity;

(e) The time necessary for the recipient to acquire appropriate education, training, or employment;

(f) The health and age of the parties and their obligations to support or care for dependent children; and

(g) Any other circumstances that the court deems relevant.

A party seeking to alter an alimony award must show a change in circumstances of either party from the time of the award to the time of the alimony rule. Moreau v. Moreau, 553 So.2d 1064 (La.App. 3d Cir.1989). Permanent periodic alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries or enters into open concubinage. La.C.C. art. 112A. (4).

The trial judge found that Harold's decreased income due to his retirement warranted a modification in the alimony award but not a termination. After considering the income, assets and earning capacities of the parties, as mandated by La.C.C. art. 112, we find no abuse of discretion in the trial court's decision to continue alimony payments and in the amount of the reduction ordered.

Harold's retirement did produce a reduction in his income. However, it has been held that voluntary retirement alone will not result in a termination of alimony payments to a spouse whose needs have remained the same. Huber v. Huber, 527 So.2d 382 (La.App. 4th Cir.1988), writ denied, 532 So.2d 768 (La.1988). In the instant case, Alice's needs have not remained the same; they have increased because of her involuntary reduction in income. Until 1992, Alice had been steadily employed at jobs paying only slightly over minimum wage. There has been no showing that Alice has been voluntarily underemployed. When her hours of employment were drastically decreased at one job, she sought to supplement her reduced income by taking on a second job. Despite this effort, her income at the time of the rule was only $256.00 per month.

When we consider the other assets of the parties, we note that Harold disposed of approximately $54,000.00 in cash shortly before his retirement on a pickup truck, on a gift to his major, married daughter and on a beauty shop for his current wife. His current wife also works, contributing to their household expenses. Alice has $15,000.00 in certificates of deposit, but those funds are set aside for the education of her mentally retarded son and were considered by the court when alimony was originally fixed in 1984. We find that Alice has met her burden of proving that she is in necessitous circumstances.

In his brief, Harold seems to argue that a termination of alimony is warranted solely because the marriage was of short duration and produced no children. Those conditions could be considered as "any other circumstances that the court deems relevant" under La.C.C. art. 112A. (2)(g). However, Article 112 also mandates that courts consider those factors specifically enumerated, such as the income, assets and earning capacity of the parties. On appeal, our responsibility is to determine if the trial court abused its discretion in its application of Article 112.

The fact that the marriage was short lived and childless is not sufficient cause, standing alone, to terminate alimony, as Harold argues. We know of no law or jurisprudence, and none has been suggested to us, to substantiate Harold's position. The termination of Harold's alimentary obligation must be done within our legal frame work. Given the facts presented, we cannot disagree with the trial judge's conclusion that Harold failed to show legal grounds to completely discontinue alimony. We find no abuse of discretion in the continuation of alimony to a spouse who has demonstrated that she is in necessitous circumstances, particularly when the payor spouse imprudently disposed of substantial liquid assets shortly before his anticipated retirement. To rule in Harold's favor would require us to depart from the relevant statutory and jurisprudential authorities and from the appropriate standard of appellate review. If our current statutory scheme for the payment of alimony is to be changed, then its revision is appropriately left to the legislature, not this forum.

For the above reasons, the judgment of the trial court is affirmed at appellant's cost.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

KNOLL, J., dissents for reasons...