Odum v. Odum

• Decision Date: 01 February 1973
• Docket Number: No. 9092,9092
• Citation: 273 So.2d 576
• Parties: Earnest Stanley ODUM v. Phyllis Messenger ODUM.
• Court: Court of Appeal of Louisiana — District of US

Page 576

273 So.2d 576

Earnest Stanley ODUM v. Phyllis Messenger ODUM.

No. 9092.

Court of Appeal of Louisiana, First Circuit.

Feb. 1, 1973.

Rehearing Denied March 14, 1973.

Donald G. Gave, Edwins, Cave & McKay, Baton Rouge, for appellant.

Ralph Brewer, Baton Rouge, for appellee.

Before LOTTINGER, ELLIS and CRAIN, JJ.

LOTTINGER, Judge.

This is a rule for an executory judgment for the amount of past due child support payments. The plaintiff in rule is Phyllis Messenger Odum, appellee, and the defendant in rule is Earnest Stanley Odum, appellant. The Lower Court awarded a judgment in favor of plaintiff in rule for $2,362.53, with legal interest from date of judicial demand until paid, and for all costs of court. The defendant in rule filed this appeal.

The parties were divorced September 23, 1966 in The Family Court for the Parish of East Baton Rouge. Mrs. Odum was given the permanent care, custody and control of the four minor children issue of the marriage, and Mr. Odum was condemned to pay child support. The original judgment for child support was amended by later judgments so that, as it was during the time in question, Mr. Odum was to be paying Mrs. Odum $225.00 per month for the child Bobbie Jean Odum and also $225.00 per month for Kathy Jane Odum only when she was enrolled full time as a student in a college or university. This suit is for $337.50 due Mrs. Odum for the child, Bobbie Jean Odum, consisting of $225.00 for May 1971 and $112.50 for one-half of June 1971 and also for $2,025.00 due Mrs. Odum for the child, Kathy Jane Odum, consisting of $225.00 per month for March through November 1971 during which nine month period she was enrolled full time as a university student.

Mr. Odum admits that he did not make the payments in question to Mrs. Odum. At issue is whether Mr. Odum can receive credit against the sums owed Mrs. Odum for amounts paid to dentists, doctors, and merchants for bills incurred for Bobbie Jean Odum and Kathy Jane Odum and for amounts paid directly to Kathy Jane Odum.

The appellant believes the trial court erred in not finding certain testimony that Mrs. Odum gave at trial to be a judicial confession as to the principal amount in controversy. The testimony that appellant has reference to follows:

THE COURT: Would you be satisfied with the difference--Maybe we can work it out. Would you be satisfied with the difference between the two twenty-five and what he paid her?

Mrs. Odum: I will if he doesn't produce checks like sixty-two dollars and fifty cents which was a Christmas present.

THE COURT: I'm not talking about that. I'm talking about the money he gave to her direct. Would you be satisfied with that--

Mrs. Odum: I said that before I came to court; but I wouldn't be satisfied with it now.

THE COURT: Maybe you gentlemen could go in chambers and discuss this.

MR. CAVE: We'd be happy to, Your Honor.

MR. BREWER: Let's see. I don't think the court heard her last statement if Your Honor please.

Mrs. Odum: I said I would not be satisfied with it now unless he's willing to pay my attorney's fees and the court costs because it costs me every time I have to come to court.

We agree with the trial judge that the above was not a judicial confession and quote from the Reasons for Judgment on this point.

'In his brief, counsel for Mr. Odum states that on rebuttal, Mrs. Phyllis Odum testified that she did not want Mr. Odum to pay her for funds previously given to Kathy; whereas, in fact, Mrs. Odum testified to a telephone conversation between herself and Mr. Odum, in which conversation, she did, indeed, make such a statement. However, upon questioning by the court, Mrs. Odum stated most emphatically that she was not now willing to make any such concession. In the opinion of this court, this did not amount to a judicial confession. Mrs. Odum was merely relating a conversation concerning an extrajudicial agreement which clearly can have no legal effect upon the judgment of this Court.'

Furthermore, the appellant believes the trial court erred in finding that Mrs. Odum had not waived her rights to receive the child support payments directly. Stated in another way, the appellant believes that the trial court should have found that Mrs. Odum waived her right to receive the child support payments and that Mr. Odum should have been given credit for payments he made to others for expenses of the children and for payments to one of the children directly.

In his Reasons for Judgment the trial judge stated the law he believed to be pertinent to be as follows:

'As this Court appreciates the law of this state, any judgment rendered by a court of competent jurisdiction stands as a judgment of that court until judicially modified, annulled or expunged. No agreement between parties, no writing in derogation of the judgment without judicial sanction are of any legal consequence whatsoever. The remedy of an aggrieved party under this rule of law is rendered amply clear. He must apply for and received from that same court a modified judgment in accordance with existing facts or be prepared eventually to suffer his loss from...