Pettitt v. Pettitt

• Decision Date: 24 April 1972
• Docket Number: No. 11840,11840
• Citation: Pettitt v. Pettitt, 261 So.2d 687 (La. App. 1972)
• Parties: Bobby Eugene PETTITT, Plaintiff-Appellee, v. Patsy C. Simmons PETTITT, Defendant-Appellant.
• Court: Court of Appeal of Louisiana

Page 687

261 So.2d 687

Bobby Eugene PETTITT, Plaintiff-Appellee, v.Patsy C. Simmons PETTITT, Defendant-Appellant.

No. 11840.

Court of Appeal of Louisiana, Second Circuit.

April 24, 1972.

Miller & DeLaune, by Donald R. Miller, Shreveport, for defendant-appellant.

Simon, Carroll, Fitzgerald & Fraser, b Richard A. Fraser, Jr., and Mark R. Simmons, Shreveport, for plaintiff-appellee.

Before BOLIN, HEARD and HALL, JJ.

HALL, Judge.

Plaintiff and defendant were divorced on April 11, 1968.The defendant-mother was awarded custody of the two minor children of the marriage and the plaintiff-father was ordered to pay $100 a month as child support for each child or a total of $200 per month.The present action was commenced by rule directing Bobby Eugene Pettitt to show cause (1) why the amount of child support should not be increased to $250 a month per child; (2) why he should not be condemned to pay all necessary educational expenses for both children, including, but not limited to, college and university fees, tuition and books; and (3) why the portion of the former decree which gave him the right to claim the allowable income tax dependency exemption for each of the minor children should not be rescinded.

Judgment was rendered increasing the amount of child support to $125 a month per child or a total of $250 a month.All other demands of plaintiff in rule were rejected and she has perfected this appeal.

Plaintiff in rule--appellant has remarried since the date of the judgment of divorce and she will be referred to hereafter as Mrs. Sugar.

The basis of Mrs. Sugar's demands is twofold.First, she alleges Mr. Pettitt's ability to pay has substantially increased since April of 1968.Second, she alleges the amount necessary for the care and maintenance of the children has also increased since that date.

When Mrs. Sugar and Mr. Pettitt were divorced in 1968, his gross monthly income was $935 and his net take-home pay was $654.98.In 1971, when this action was commenced, his gross monthly income was $1,550.His net take-home pay excluding deductions for stock purchases from his employer, was $1,065.

The children of this marriage are two young men who both attend high school in Shreveport.Bobby Eugene Pettitt, Jr. is eighteen years old and is a senior in high school.Jerry Glen Pettitt is seventeen years old and is a junior in high school.At the time of the original decree in this matter they were ages fourteen and thirteen respectively.Mrs. Sugar alleged generally that the needs of the children have increased because of their age and progress in school.The record reflects that this is true to a certain degree.However, it was also shown that Mrs. Sugar's second husband has a substantial income (but is separate in property under a marriage contract) resulting in a higher standard of living for Mrs. Sugar and her children than they enjoyed during her marriage to Mr. Pettitt.Much of the alleged increased needs of the children relates to the cost of maintaining these increased advantages, such as being furnished an automobile, country club membership and the like.

The law is settled that an award of alimony for the support of a child is always subject to modification if there is any change in the needs of the child or in the ability of the father to pay.The person demanding the increase must, however, prove such an increase is warranted and the determination of whether this burden of proof has been met is within the sound discretion of the trial judge.Blanchard v. Blanchard, 209 So.2d 513(La.App.2d Cir.1968).It is equally settled in the jurisprudence that the determination of the amount of support to be paid by the father for his minor children is within the sound discretion of the trial judge.This discretion should not be disturbed on appeal unless there has been an abuse of this discretion.Gay v. Gay, 226 So.2d 926(La.App.2d Cir.1969).

The court noted in Gay v. Gay, supra, that the father's obligation may be greater than just to supply the bare necessities of life.The children are entitled to be maintained in the same standard of living as would be their custom if living with the father.Wilmot v . Wilmot, 223 La. 221, 65 So.2d 321(1953).

Considering all of the evidence presented in this case and the legal principles applicable to the issues...