Updegraff v. Updegraff

• Decision Date: 25 October 1982
• Docket Number: No. 15018,15018
• Citation: 421 So.2d 1165
• Parties: Donald Ray UPDEGRAFF, Plaintiff-Appellee, v. Susan Sigler UPDEGRAFF, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 1165

421 So.2d 1165

Donald Ray UPDEGRAFF, Plaintiff-Appellee, v. Susan Sigler UPDEGRAFF, Defendant-Appellant.

No. 15018.

Court of Appeal of Louisiana Second Circuit.

Oct. 25, 1982.

Love, Rigby, Dehan, Love & McDaniel by J. Phillip Goode, Jr., Shreveport, for defendant-appellant.

Sockrider & Bolin by H.F. Sockrider, Jr., Shreveport, for plaintiff-appellee.

Before MARVIN, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

This is a child support case. Susan Updegraff filed a rule against her former husband, Donald Updegraff, to increase the child support for their two children, Erica, age 9, and Donald, Jr., age 7. Donald responded with a rule to reduce child support. The rules were consolidated and after a trial on the merits the district judge rendered judgment ordering Donald to pay child support of $475.00 per month each, or a total of $950.00, and requiring him to maintain hospitalization and major medical insurance on the children. Susan appeals. We amend and affirm.

Susan sets out three assignments of error. She contends the trial judge erred in:

1) effectively reducing child support when the evidence showed a change in circumstances supporting an increase in the award;

2) fixing child support at a grossly inadequate amount; and

3) failing to consider the income of Donald's new wife, Mary, in determining his ability to pay.

Donald and Susan were married in 1968 and divorced in March, 1981. The judgment in the divorce action awarded Susan custody of the children but she did not receive permanent alimony. By consent of the parties the judgment fixed child support at $808.58 and required Donald to maintain health insurance on the children and to pay the mortgage, taxes and insurance on the family home, where Susan and the children continued to reside, until its sale.

The total monthly expenditure required by the judgment was $1,533.49. Donald also provided insurance on the car used by Susan and the children until it was transferred into Susan's name. Donald ceased making the house related payments as of December 1, 1981, because Susan had purchased his interest in it.

On December 22, 1981, Susan filed her rule to increase child support to $2,000.00 per month. Donald then filed his rule to reduce child support to an amount not exceeding "the reasonably substantiated needs" of the children. After trial of the consolidated rules the judgment complained of was rendered.

Through her first assignment of error, Susan contends that the judgment erroneously reduces child support when the record shows a change in circumstances which supports an increase.

Susan argues that by his consent to the original judgment Donald judicially confessed that child support of $1,533.49 was appropriate. Therefore, she argues, the award may not be reduced below that figure absent a showing by Donald of a substantial change in circumstances which supports the reduction.

Even a consent judgment fixing child support may not be modified absent a showing by the party seeking the modification, of a substantial change in circumstances supporting the modification. Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); Jones v. Jones, 351 So.2d 825 (La.App. 1st Cir.1977).

The original judgment in this case made the direct payments on the house subject to termination on its sale. It is not disputed by appellant that the house has been sold within the contemplation of the judgment and that the direct payments were rightly terminated by appellee. Thus, by the judgment's own terms, the only portion of the original child support award in effect at the time of the trial of this matter was the award of $808.58 per month to be paid to appellant. Under these circumstances we must regard the award of $950.00 per month as an increase, rather than a decrease as contended by appellant, in child support.

The appellant's first assignment of error is without merit.

Through her second assignment of error Susan contends that the trial judge erred in awarding support in a grossly inadequate amount.

Child support is to be fixed in proportion to the needs of the children and the non-custodial parent's ability to pay. C.C. Art. 231; Nelson v. Nelson, 335 So.2d 787 (La.App. 1st Cir.1976). The children should enjoy the same standard of living they would have if they resided with the non-custodial parent. Prados v. Prados, 341 So.2d 1286 (La.App. 3rd Cir.1977).

The trial judge has much discretion in fixing child support and his award will not be disturbed absent a clear abuse of discretion. Allbritton v. Allbritton, 393 So.2d 825 (La.App. 2d Cir.1981); Frazier v. Frazier, 318 So.2d 625 (La.App. 2d Cir.1975).

Susan claims the expenses of these two children, ages 7 and 9, are $1,923.01 per month. The largest item in the claimed list is housing. Susan contends that 2/3's of the monthly payments on the former family home, which she elected to purchase, should be assessed as child support. She also claims 2/3's of the annual taxes and insurance on the house. Susan's total claim for housing for the two children is the sum of $476.84.

The record shows that Susan refused to sell the house to a prospective purchaser for an offer of $170,000.00 cash. Instead, she borrowed $43,590.00 from a gentleman friend and purchased Donald's interest in the house. If Susan had joined Don in the sale of the house to the prospective purchaser she would have received from the sale of the house for her equity in it approximately the...