Vinet v. Vinet

• Decision Date: 07 March 1966
• Docket Number: No. 2073,2073
• Citation: Vinet v. Vinet, 184 So.2d 33 (La. App. 1966)
• Court: Court of Appeal of Louisiana
• Parties: Jean TARTER, wife of John B. VINET v. John B. VINET.

Page 33

184 So.2d 33

Jean TARTER, wife of John B. VINET v.John B. VINET.

No. 2073.

Court of Appeal of Louisiana, Fourth Circuit.

March 7, 1966.

Henican, James & Cleveland, Emile J. Dreuil, Jr., New Orleans, for plaintiff-appellant.

Hartman C. Daniel, Metairie, for defendant-appellee.

Before REGAN, SAMUEL and BARNETTE, JJ.

SAMUEL, Judge.

The parties to this suit were divorced in these proceedings on January 30, 1961.The divorce judgment awarded the mother the care, custody and control of the two minor children of the marriage, Sharon Ione, presently 14 years of age, and Melissa Grace, presently 9 years of age.The judgment also ordered the defendant-husband to pay alimony at the rate of $30 per week for support of the children and gave him the right to have the children visit him at reasonable times.During November of 1961 the alimony was reduced to $100 per month in accordance with an agreement between the litigants.

Shortly after the divorce plaintiff remarried and she will be referred to hereafter in this opinion as Mrs. Harris.Mr. Vinet also contracted a second marriage approximately two years after the divorce.Over a period of approximately four years the children regularly visited with Mr. Vinet and lived at his home over every other weekend, commencing Friday evening and ending Sunday evening.During the month of January, 1965, Mrs. Harris refused to allow the children to go to their father's home and Mr. Vinet brought a rule against her to have his visitation rights fixed by the court.Mrs. Harris then filed a rule to increase the child support award to $175 per month, to make executory certain past due and unpaid child support payments and to fix visitation rights.

After a trial of the two consolidated rules there was judgment setting alimony at the sum of $100 per month, decreeing that Mr. Vinet owed past due alimony in the amount of $300 and ordering him to pay that amount at the rate of an additional $15 per month, authorizing Mrs. Harris to claim the older daughter, Sharon, as an exemption on her income tax return and authorizing Mr. Vinet to claim the younger daughter, Melissa, as an exemption on his income tax return, and ordering that Sharon spend each Saturday of each week with Mr. Vinet and that Melissa spend every other weekend with Mr. Vinet.The judgment also included other matters concerning which neither party makes any complaint.

Mrs. Harris has appealed from the district court judgment.In this courtshe contends the trial court erred: (1) in failing to increase the alimony for child support; (2) in permitting Mr. Vinet to pay the accrued unpaid alimony in installments; (3) in decreeing that each of the parties may claim one of the children as an income tax exemption; and (4) in permitting 'divided custody' of Melissa, the younger daughter.

In connection with her prayer for an increase in alimony for the support of the children, Mrs. Harris testified that the amount of money required for that purpose was more than the $175 per month she seeks.Mrs. Harris works as a secretary and has an income therefrom of approximately $4,800 per year.Mr. Vinet has an income of approximately $465 per month.The record contains testimony to the effect that Mr. Vinet's present wife also works and derives therefrom a much smaller income than that of her husband and that Mrs. Harris' present husband earns substantially than does Mrs. Harris.No one receives any income other than the salary which she or he earns.We are primarily concerned, of course, with the individual incomes of the two litigants; neither the stepmother nor the stepfather have any legal obligation to support the children.Insofar as Mr. Vinet is concerned, his living expenses, which appear to be reasonable or even minimal, are such that they can barely be met even by the combined incomes of himself and his present wife.And insofar as Mrs. Harris' estimate of the cost of supporting the two children is concerned, two of the annual items included in that estimate, $360 for lodging and $103 for utilities for each child, an annual total of $926 for both children, appear to be excessive.No explanation was given as to how the presence of the children in the Harris household added that amount to the cost of operating that household.

Alimony must be granted in proportion to the wants of the person receiving it and the circumstances of the one requiring to pay; each case dealing with alimony necessarily must be determined by its own peculiar facts.LSA-C.C. Art. 231; Hanagriffe v. Hanagriffe, 122 La . 1012, 48 So. 438;Chaisson v. Domingue, La.App., 175 So.2d 902;Jones v. Floyd, La.App.,154 So.2d 604.And from our reading of the entire record it does not appear that the trial judge acted arbitrarily or unreasonably in setting alimony for the support of the children at $100 per month.Accordingly, we will not substitute our judgment for that of the trial judge.Cassagne v . Cassagne, 207 La. 1033, 22 So.2d 559;Lawrence v. Lawrence, La.App ., 167 So.2d 414.

We are in agreement with appellant's second contention relative to permitting the payment of accrued unpaid alimony in installments.Under LSA-C.C.P. Art. 3945 and the jurisprudence subsequent to the effective date of that article, as well as under the prior pertinent...