Worley v. Worley
| Decision Date | 22 April 1971 |
| Docket Number | No. 3416,3416 |
| Citation | 247 So.2d 254 |
| Parties | Lynn Lamkin WORLEY, Plaintiff and Appellee, v. Jack Lamar WORLEY, Defendant and Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Warren E. Hood, Lake Charles, for defendant-appellant.
Anderson, Leithead, Scott, Boudreau & Savoy, by James A. Leithead, Lake Charles, for plaintiff-appellee.
Before DOMENGEAUX, CULPEPPER and MILLER, JJ.
This is a suit for divorce. The sole issues on appeal relate to the alimony awards after divorce of $400 per month to the plaintiff wife and $600 per month for two minor children, a total of $1,000 per month. The defendant husband has appealed, contending the wife is entitled to no alimony, since she has sufficient means for her maintenance, and that the award for the children is excessive.
The facts show that on May 12, 1969, the plaintiff, Mrs. Lynn Lamkin Worley, obtained an uncontested judgment of separation from bed and board from the defendant, Dr. Jack Lamar Worley. By agreement of the parties, alimony pendente lite was fixed in that judgment at the sum of $750 per month for the wife and $300 per month for the two children, a total of $1,050 per month. The children were then respectively seven and ten years of age.
On May 19, 1970, plaintiff filed the present suit for divorce and alimony in the sum of $650 per month for herself and $600 per month for the two children. Defendant opposes the payment of any alimony to Mrs. Worley individually on the grounds that she has 'sufficient means for her maintenance' and, therefore, is not entitled to alimony under LSA-C.C. Art. 160. Approximately three weeks before the judgment of separation from bed and board, plaintiff's mother, Mrs. Cyllene C. Lamkin, died intestate. On July 10, 1969, which was approximately two months after the judgment of separation, the mother's succession was opened and judgment rendered placing her surviving husband and three children in possession of her estate. These succession proceedings show that plaintiff's father, Mr. Jack Lamkin, waived his usufruct of the community property belonging to the succession of the decedent. The valuations placed on the property in the succession record show that plaintiff's interest in the estate has a value of $101,527.99, prior to the payment of $2,695.81 for inheritance taxes to the State of Louisiana.
On the same date as the judgment of recognition and possession, plaintiff executed a trust instrument in which she is the settlor and sole beneficiary and her father is the trustee. Substantially all of the property inherited by plaintiff from her mother was placed in this trust.
Defendant contends that the principal and income of this trust are available to plaintiff for her maintenance and hence that she is not without means for her support. The pertinent provisions of the trust agreement read as follows:
Our jurisprudence construing LSA-C.C. Art. 160 is now established that in determining whether the wife has 'sufficient means for her maintenance' the court must consider any principal and income available to her. Montz v. Montz, 253 La. 897, 221 So.2d 40 (1969); Rabun v. Rabun, 232 La. 1004, 95 So.2d 635 (1957); Stabler v. Stabler, 226 La. 70, 75 So.2d 12; Brown v. Harris, 225 La. 320, 72 So.2d 746; Smith v. Smith, 217 La. 646, 47 So.2d 32. Under the above quoted provisions of the trust agreement, it is apparent that approximately $100,000 of principal and an undertermined amount of income is available to Mrs. Worley for her maintenance. Hence, she is not entitled to alimony after divorce.
The district judge gave the following reasons for refusing to consider the principal and income of the trust as means available for the wife's maintenance:
'While it is true that Mrs. Worley could perhaps sue Mr. Lamkin and demand certain sums of money under the terms of the trust, as a practical matter this does not impress the court as being income or the availability of income which Mrs. Worley has readily at her disposal for her support.'
In our view, the fact that Mrs. Lamkin may have to institute legal proceedings against the trustee, to require him to disburse from the principal and income of the trust sufficient sums for her maintenance, does not justify the legal conclusion that she is without sufficient means for her support. The provisions of the trust agreement are clear that 'If the income of the trust is not sufficient to provide for the comfort, support, maintenance and benefit of the settlor according to her usual present standard of living, then the trustee shall pay or apply all or such part of the principal of the trust as may be necessary to maintain the beneficiary.' Since plaintiff has a legal right to the income and principal of the trust for her maintenance, she has the means for her support. If pragmatism is to be considered, the trustee is plaintiff's father and the very purpose of the trust is to provide for her maintenance and support. There is no reason to think that plaintiff would be forced to sue her father for the funds to which she is clearly entitled under the trust agreement.
Plaintiff makes the additional argument that the reason for the creation of the trust was to minimize estate and inheritance taxes. She denies defendant's implication that the purpose of the trust was to establish the basis for a claim for alimony from Dr. Worley. In our view, the...
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