JASPER E. JONES, Judge.
The litigants in these consolidated separation and divorce actions are James J. Hamiter and Jeannine T. Hamiter. Mr. Hamiter appeals a judgment awarding Mrs. Hamiter alimony pendente lite of $2,200 per month
Appellant makes three assignments of error. He contends the trial judge erred in (1) making an excessive award of alimony pendente lite and making the award retroactive, (2) awarding excessive permanent alimony, and (3) making an alimony award so large that it cannot be satisfied from income and enjoining the use of his assets to obtain funds to satisfy the award.
Mr. Hamiter does not appeal the judgment insofar as it decrees the divorce.
ASSIGNMENT # 1
Through this assignment appellant attacks both the amount and retroactivity of the award of alimony pendente lite.
As the award of alimony pendente lite was made in the judgment which granted the divorce it has no prospective effect
Here the divorce was granted contemporaneously with the retroactive award of alimony pendente lite and this assignment, under the rationale of Tisby, is moot. It is appellant's position, however, that the application of Tisby, and through it Bruner, Frederic, Langham and Kriger, supra, would be constitutionally infirm as a denial of his right to judicial review under LSA-Const. Art. 1 § 19.
The right of judicial review is subject to reasonable legislative restriction. Something Irish Co. v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976); Harris v. Dupree, 322 So.2d 380 (La.App. 2d Cir. 1975), writ refused 325 So.2d 612 (La.1976).
The official comments under this Article state:
The purpose of the provisions of LSA-C. C.P. art. 3943 denying a suspensive appeal from an alimony judgment is to prevent the denial of necessary support to a spouse pending appeal. That purpose demands the rule of Frederic, Bruner, Langham, and Kriger, supra. Without that rule the spouse receiving alimony would be put in an uncertain and precarious position only slightly better than he would occupy with no alimony award at all. Article 3943 as interpreted by Frederic, Bruner, Langham and Kriger, supra, is a reasonable and valid restriction on the right of judicial review.
Though we conclude that the propriety of the award of alimony pendente lite is moot, we also note that the record justifies the award.
Appellant complains that the retroactive award of alimony pendente lite is unfair and inequitable. These complaints are spurred by the fact that the retroactive award is for eighteen months and consequently represents a considerable sum.
We observe that the delay in the trial of this matter was not occasioned by sloth on the part of appellee or her various counsel.
Though the judgment makes the award of alimony pendente lite retroactive, it also gives appellant credit for amounts previously paid under an agreement between the parties. This negated any unfairness which might have come from the retroactive award. Whitmeyer v. Whitmeyer, 326 So.2d 884 (La.App. 2d Cir. 1976).
Appellant also contends the district judge unconstitutionally applied LSA-C.C. art. 148.
Generally, a litigant must plead the unconstitutionality of a statute in the trial court in order to raise the issue on appeal. Johnson v. Welsh, 334 So.2d 395 (La.1976); Nelson v. Nelson, 377 So.2d 882 (La.App. 4th Cir. 1979). Assuming arguendo that appellant is entitled to raise the issue of the possible unconstitutionality of Article 148 as it was not plead in the trial court, we observe that the primary problem with this argument is that it is not based on the facts of this case.
The record shows that the Hamiters enjoyed a high standard of living during their marriage and appellant has continued in that lifestyle during the pendency of these proceedings.
The award of alimony pendente lite seems appropriate to allow the parties to live at the same level though that may be somewhat below the level they previously enjoyed. The award is for an amount such that, had appellant been paying it previously, both parties would have borne, approximately equally, the hardships occasioned by the situation and such an award is appropriate. Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980); Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir. 1980). The record does not support appellant's assertion that the award of alimony pendente lite was for an amount which would have allowed appellee to enjoy a much higher standard of living than his.
This assignment of error is without merit.
ASSIGNMENT # 2
Through this assignment of error appellant attacks the award of $1,700 per month in permanent alimony. The judgment makes this award subject to a credit of $650 per month as long as appellee continues to reside in the family home and appellant pays the house note, $99 per month, taxes (amortized at $24 per month) and insurance (about $55 per month).
Appellant contends that the award of permanent alimony was based on inflated and exaggerated claims of expenses by appellee.
The award of permanent alimony under LSA-C.C. art. 160
We agree with the observation of Judge, now Justice, Lemmon that
though she should not be maintained in the style of living she enjoyed during the marriage. Boisfontaine v. Boisfontaine, 357 So.2d 90 (La.App. 4th Cir. 1978), writs refused 358 So.2d 644 (La.1978).
The trial judge is vested with much discretion in setting the amount of alimony and his award will be disturbed only when that discretion is abused. Lormand v. Mouton, 337 So.2d 920 (La.App. 3d Cir. 1976); Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir. 1979); Super v. Super, 397 So.2d 1084 (La.App. 4th Cir. 1981), writ denied 399 So.2d 583 (La.1981); Tracy v. Tracy, 388 So.2d 66 (La.App. 1st Cir. 1980).
Appellant attacks the amount and propriety of virtually every expense claimed by appellee. As to some of these items, appellant's contentions are inconsistent with his own claims.
Utilities $ 170.87 Telephone 18.75 Dentist 50.00 Auto Payments 250.00 Auto Expense (oil, gas) 125.00 Auto Insurance 57.08 Hospitalization and Medical Insurance 100.00 Drugs 10.30 Medical Care 120.00 Food 260.00 Clothing 100.00 Housing 350.00 Household Supplies 45.00 Replacement cost of Washing Machine 45.00 _________ TOTAL: $1,702.00
Appellee is also entitled to an amount to compensate for taxes which will vary depending on the amount of alimony received. The proven expenses fully support the amount of the award of permanent alimony.
Appellant contends that the trial judge erred in concluding appellee has no earning capacity and that the award of permanent alimony should be reduced to take into account appellee's earning capacity.
Whether or not appellee has any earning capacity is a question of fact on
The evidence shows that appellee has not been employed in over twenty years, that she has a back infirmity for which she had an operation, and that she regularly undergoes physical therapy for her back ailment. This evidence amply supports the conclusion by the district judge that appellee has no earning capacity.
Appellant contends that the award of permanent alimony is excessive in that it exceeds one-third of his income in violation of LSA-C.C. art. 160.
The one-third rule of Article 160 applies to gross income. Shelton v. Shelton, 395 So.2d 899 (La.App. 2d Cir. 1981); cf. Lormand v. Moutan, supra. One cannot hide behind a corporate entity to avoid paying alimony and corporate benefits may be included in gross income. Ballard v. Ballard, 367 So.2d 1220 (La.App. 2d Cir. 1979); Gutierrez v. Gutierrez, 172 So.2d 753 (La.App. 4th Cir. 1965).
Appellant is the owner and president of Ideal Builder's Hardware, Inc. In his capacity as president he receives a salary and numerous fringe benefits. Included among those is a car and gasoline for business and personal use.
We find appellant's gross monthly income to be as follows:
Salary $1,800.00 Car Expense Free (Provided by corporation) 250.00 Life Insurance (monthly premium pd. by corp.) 305.64 Oil and Gas Income 51.52 Receives monthly from Credit Sale of House and Lot 75.00 Rental Income 1,470.57 _________ TOTAL: $3,952.73
One-third of appellant's income is $1,317.58 and Article 160 requires that the award of permanent alimony be reduced to that amount. The credit allowed appellant for appellee's use of the family home must also be reduced to $425.00.
We conclude that the amount of credit allowed appellant by the trial judge on the permanent alimony of $650 per month for the use of the community home by the appellee was related to the amount of the monthly permanent alimony award, and for that reason since we were required to reduce the monthly alimony award we also find it only fair to reduce the amount of credit to which appellant will receive for appellee's use of the family home to $425.
The appellant owes a total of approximately $70,000,
The duty to pay alimony creates a very high priority obligation. One who owes alimony is required, if necessary, to reduce his expenses and make adjustments with his creditors in order to meet his alimony obligation. Kellogg v. Kellogg, 375 So.2d 200 (La.App. 2d Cir. 1979); Shelton v. Shelton, supra. The appellant has a net worth reflected on what we construe from the evidence to be an extremely conservative financial statement, of $440,000. He should easily be able to make the necessary adjustments to liquidate the necessary amount of his assets to secure the funds to pay enough of his debts that he can pay the remainder monthly and still meet his alimony obligation and pay his own living expenses.
Appellant's final contention with respect to this assignment is that the modification
ASSIGNMENT # 3
Through this assignment appellant attacks the post divorce injunction against his alienation, encumberance or disposal of the assets of the former community.
A party is not entitled to an injunction in a divorce judgment prohibiting the other from alienating or encumbering assets of the former community without a showing of irreparable injury. LeBlanc v. Lyons, 401 So.2d 626 (La.App. 3d Cir. 1981).
Here appellee has made no showing of irreparable injury and the trial judge was in error in maintaining the injunction after the divorce.
For the reasons set forth the judgment is amended to delete the fifth paragraph which provided for the injunction and to amend the fourth paragraph to reduce the monthly alimony to $1,317.58 and the credit which appellant shall receive on the alimony for appellee's use of the family home to the sum of $425.00. The reduction in alimony and family home credit to be effective only prospectively from the date of the finality of this decision.
As AMENDED the judgment is AFFIRMED. Costs on appeal are taxed equally against both parties.
Comment
User Comments