Timm v. Timm

• Decision Date: 27 July 1987
• Docket Number: No. 87-CA-148,87-CA-148
• Citation: 511 So.2d 838
• Parties: Monica Camila Guital TIMM v. Rolando Emilio TIMM.
• Court: Court of Appeal of Louisiana — District of US

Page 838

511 So.2d 838

Monica Camila Guital TIMM v. Rolando Emilio TIMM.

No. 87-CA-148.

Court of Appeal of Louisiana, Fifth Circuit.

July 27, 1987.

Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, Robert C. Lowe, John B. Krental, New Orleans, for defendant/appellant.

Sydney J. Parlongue, Parlongue and Riegel, New Orleans, for plaintiff/appellee.

Before GAUDIN, WICKER and GOTHARD, JJ.

GOTHARD, Judge.

This is an appeal from judgment condemning an ex-husband to pay arrearages in child support.

Monica Camila Guital Timm and Rolando Emilio Timm were divorced on December 15, 1981, following a year of living separate and apart. Of four children born of the marriage, two were then minors, Karen, born August 28, 1965, and Vivian, born February 11, 1972. In a subsequent judgment dated December 30, 1981 the court awarded custody of Karen and Vivian to the mother and fixed child support at $900 per month "less tuition payments paid by Rolando E. Timm and less the monthly housenote being paid by Rolando E. Timm." On May 27, 1982 the judgment was amended to order that Mr. Timm pay Mrs. Timm $900 per month child support with no deductions for tuition or mortgage payments. (Mrs. Timm's motion to amend judgment had stated that she wished to assume the responsibility for tuition and mortgage note and receive the full child support payment.) The community was partitioned on June 18, 1982, Mrs. Timm receiving the family home and furnishings.

The judgment which is the subject of this appeal arose from a rule for contempt and to accumulate past due child support filed by newly enrolled counsel for Mrs. Timm on July 2, 1986. Mr. Timm had reduced his child support payments to $450 per month as of September 1, 1983, allegedly by mutual agreement with Mrs. Timm, following Karen's eighteenth birthday. The matter was heard on November 5, 1986 and judgment rendered from the bench, ordering Mr. Timm to pay $17,550 in past due child support plus interest and attorney's fees of $350. The defendant then perfected a suspensive appeal.

The sole issue before this court is whether the trial judge was correct in finding that the appellant acted unilaterally in reducing the in globo award of child support.

The statute regarding termination of child support, LSA-R.S. 9:309, provides that when a judgment sets out an in globo award for two or more children, the award terminates when the youngest child reaches majority. ¹ Clearly, in an in globo award there is not an automatic termination of a portion of the child support when one of the children reaches majority. The father is not entitled to reduce his payments on a pro-rata basis without seeking court modification of the judgment. LaBove v. LaBove, 503 So.2d 670 (La.App. 3rd Cir.1987). However, the law does recognize the enforceability of an agreement between the parties to modify the amount of child support. Patrick v. Patrick, 496 So.2d 521 (La.App. 1st Cir.1986), and cases cited therein. The burden of proof is upon the person seeking to reduce his obligation; there must be a clear showing that the parties agreed to the change; and the change must not be detrimental to the child. Dubroc v. Dubroc, 388 So.2d 377 (La.1980); Ramos v. Ramos, 425 So.2d 989 (La.App. 5th Cir.1983).

In the case before us the trial court ruled from the bench, as follows:

... The Court considers, after listening to the testimony in this case and reviewing the evidence, it does not reveal that an agreement existed between these parties which authorized Mr. Timm to satisfy his support obligation. Mr. Timm acted unilaterally and not by agreement with Mrs. Timm....

It is Mr. Timm's position that he reduced the child support pursuant to an oral agreement made in August, 1983 in which Mrs. Timm agreed to the reduction in return for his assistance to her in refinancing the family home. He had not sought a reduction through the court at any time.

The record reveals that soon after the partition of the community in 1982, Mrs. Timm took out a second mortgage on the house and in 1983 became delinquent in the payments. Mr. Timm maintains that the agreement to accept reduced child support took place on August 31, 1983, three days after Karen's eighteenth birthday, when he agreed to assist Mrs. Timm with refinancing the house. On that date Mrs. Timm executed a promissory note in his favor for $24,169.69, with a collateral mortgage note for $75,000. Mr. Timm then obtained and co-signed the new second mortgage on the family residence, which mortgage retired the earlier second mortgage, paid him $7,000 for previous monies loaned, and provided a cushion of about $10,000 for payments on the mortgage. From time to time during the three years after the partition and before the house was sold in October, 1985, Mrs. Timm borrowed money from her ex-husband, with the understanding that she would repay him when the house was sold.

Mr. Timm testified that he had not reduced the agreement to writing because he believed his ex-wife to have been in good faith. He argues that if she had not agreed to the reduction she would have complained earlier on, which she did not.

Mrs. Timm denies making any agreement with her husband in exchange for his help in refinancing the house. She testified that she "thought when a child reaches eighteen, immediately the man's supposed to cut the child support...." She explained that she was "not born here" and did not know the law. (Both Mr. Timm and Mrs. Timm were...