Wingo v. Cook
| Decision Date | 15 January 1975 |
| Docket Number | No. 4816,4816 |
| Citation | 306 So.2d 370 |
| Parties | Vesta Jean Hoffman Cook WINGO, Plaintiff-Appellee, v. Russell M. COOK, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Watson, Murchison, Crews & Arthur by William Crews, Jr., Natchitoches, for defendant-appellant.
Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
Before HOOD, CULPEPPER and MILLER, JJ.
Mrs. Vesta Jean Hoffman Wingo instituted this action against her former husband, Russell M. Cook, seeking an increase in the amount previously ordered by the court for the support of the child in plaintiff's custody, and demanding judgment against defendant for $3,218.76 to cover extraordinary medical expenses incurred for treatment of the child. Defendant answered denying that plaintiff is entitled to the relief sought, and he reconvened for judgment condemning his former wife to contribute $210.00 per month for support of the children in the custody of defendant.
Judgment was rendered by the trial court in favor of plaintiff and against defendant for $1,609.38, being one-half the extraordinary medical expenses incurred for the child, and increasing the payments to be made by defendant for the support of the child in plaintiff's custody from $70.00 to $175.00 per month. Defendant Cook appealed.
The issues presented are (1) whether defendant is liable for any part of the extraordinary medical expenses incurred for treatment of the child in plaintiff's custody, and (2) whether the evidence warrants an increase in the monthly child support payments which defendant previously was ordered to make to plaintiff.
Plaintiff and defendant were divorced by judgment rendered on July 28, 1970, and plaintiff was awarded custody of the five minor children born of that marriage. Defendant was ordered to pay her $350.00 per month as child support. Subsequent thereto, one child was emancipated, and custody of three of the children was awarded to defendant by consent of the parties, leaving plaintiff with the legal custody of the youngest child, Ray Earl Cook, who is now 12 years of age. By judgment rendered on February 24, 1972, the earlier decree condemning defendant to pay support for all of the children was amended to order him to pay plaintiff $70.00 per month for the support of the youngest child, Ray Earl Cook.
In the instant suit, plaintiff alleges that after the amount of support for Ray Earl Cook was fixed by the court, the child developed serious mental and emotional problems, and because of those problems it has been necessary that he be hospitalized and furnished psychiatric care, at a cost to plaintiff of $3,218.76. She contends that she is entitled to recover that amount from defendant as an extraordinary expense of support and maintenance not included in the monthly child support payment of $70.00 per month previously ordered by the court.
Plaintiff also alleges that additional psychiatric care will be necessary for the child every other week for an indefinite period of time, requiring trips from Natchitoches to Shreveport and added medical expenses, and that she is entitled to judgment increasing the amount of child support from $70.00 per month to $225.00 per month.
The trial judge held that the extraordinary medical expense incurred for treatment of Ray Earl Cook should be equally divided between the father and the mother, and accordingly he rendered judgment condemning defendant to pay plaintiff $1,609.38, or one-half the medical expenses which had been incurred for that purpose. The judge also found that the support previously ordered for the child should be increased, and judgment was rendered ordering defendant to pay $175.00 per month, beginning in February, 1974, for the support of Ray Earl Cook.
Defendant argues that the judgment rendered on February 24, 1972, ordering him to pay $70.00 per month as support for the child, constituted the 'alsolute limit' of his liability until and unless the decree is modified. Both parties agree that this question is res nova in Louisiana. Defendant concedes that in other states there are two prevailing views, one of which is consistent with the position he takes here, and the other is that the financial liability of the father towards his child is not limited by the support provisions of a judicial decree. He argues, however, that the former view is founded on better, reasoning, that the prior judgment of child support should be the measure of the father's responsibility, that the father has been deprived of the custody of the child, and that the principles of equity require that his obligation to support be limited to that previously ordered by the court, until that judgment is amended.
We have decided that the father's obligation to support his child is not limited to the amount of support he was ordered to pay by the last judicial decree. We hold that the father may be ordered to pay extraordinary medical expenses incurred for treatment of the child in addition to the support payments which he previously was ordered to make.
The law provides that fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. LSA-C.C. Art. 227. Separation or divorce does not deprive the children born of the marriage of any advantage secured to them by law or by the marriage contract. LSA-C.C. Art. 158.
In Duhon v. Duhon, 235 So.2d 149 (La.App. 4 Cir. 1970), the plaintiff wife sued to increase the award for child support from $120.00 to $250.00 per month. The evidence showed that the child had undergone orthodontic work at a cost of $795.00 prior to the institution of that action. The trial court rendered judgment increasing the amount of child support from $120.00 to $150.00 per month, and ordering the defendant husband 'to pay all extraordinary medical expenses in connection with orthodontic work for his daughter.' That judgment was affirmed by the Court of Appeals.
Usually, when judgment is rendered fixing the amount of support due a child, only the normal, usual and average expenses can be determined by the court. The judgment rendered at that time does not contemplate the unusual and extraordinary expenses incurred on account of an accident or a severe, unforeseen or protracted illness of the...
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Gravel v. Gravel
...of the trial court in these matters will not be disturbed unless there appears to be an abuse of that discretion. Wingo v. Cook, 306 So.2d 370 (La.App. 3 Cir. 1975); Broussard v. Broussard, 320 So.2d 236 (La.App. 3 Cir. 1975); Fakouri v. Perkins, 322 So.2d 401 (La.App. 3 Cir. 1975); Janise ......
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Sutterfield v. Sutterfield, 8574
...expense, medical or legal, in either instance, for that expense was not taken into consideration in the prior support decree. The court, in Wingo, considered the reasonableness of the medical expenses and found the mother's decision to incur them reasonable. The same issue of reasonableness......
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Janise v. Janise
...thereof. His judgment will not be disturbed on appellate review in the absence of a showing of abuse of discretion. Wingo v. Cook, 306 So.2d 370 (La.App., 3rd Cir. 1975). Under these rules, let us examine the facts of the present case. On April 24, 1975, when the original judgment ordered t......
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South Jefferson General Hospital, Inc. v. Connors
... ... Gennaro v. Gennaro, La.App., 323 So.2d 513 (1975); Wingo v. Cook, La ... App., 306 So.2d 370 (1975); Super v. Super, La.App., 279 So.2d 216 (1973); Duhon v. Duhon, La.App., 235 So.2d 149 (1970) ... ...