Carpenter v. Carpenter, 129 So. 2d 474

Carpenter v. Carpenter

129 So. 2d 474 | La. Ct. App. | 1961

Lead Opinion

AYRES, Judge.

Plaintiff instituted this action against his wife for a divorce “a vinculo matrimonii,” based upon the statutory grounds of two years’ separation.

Defendant, by answer, sought an award of the custody of their minor child and alimony or support for the child. After trial, there was judgment granting the divorce as prayed for, awarding defendant the custody of their minor child, and condemning the plaintiff to pay to the defendant, for the use and benefit of the minor, alimony or support in the sum of $5 per week. From this judgment, defendant appealed.

No contention is made as to the correctness of the judgment granting the divorce. The judgment is clearly supported by the evidence. Plaintiff and defendant lived separate and apart from August, 1957, until the institution of this suit May 10, 1960, or for more than two years.

Defendant sought no permanent alimony in this action for herself other than the en*475forced payment, in a lump sum, of the alimony awarded pendente lite in the separation suit for the period from February 18, 1957, to May 18, 1960. As pointed out in our opinion in the separation suit between these same parties, 129 So.2d 471, the matter of the allowance or award of alimony pendente lite was not before us on the appeal in that case, and, a fortiori, the matter is not before us on the appeal in this case. She prayed, however, for an award of $30 per month for the use and benefit of the child. Plaintiff is employed and, according to his own testimony, he receives, after deductions for withholding taxes, social security benefits, et cetera, the sum of $36.-10 weekly. While it is true he pays $13.50 weekly on an indebtedness due his employer, nevertheless $7.50 per week is apparently a minimum for the support of a minor. We feel that, from his income, plaintiff can well afford to pay that amount.

Hence, the judgment appealed is amended by increasing the award of alimony, for the use and benefit of the minor child, to $7.50 per week and, as thus amended, the judgment is affirmed. The cost is assessed against plaintiff and defendant in equal proportions.

Amended and affirmed.

Rehearing

On Motion for Rehearing.

PER CURIAM.

In a motion for rehearing, it has been pointed out that, in increasing the award for the support of the minor child to $7.50 per week, the award, by exact and precise computation, exceeds the demand of $30 per month. The error is recognized and the decree will be amended so as to conform to the demand. Accordingly, the award of alimony for support of the minor child is hereby fixed in the sum of $30 per month, and, as so amended, our original decree is reinstated and made the final judgment of this court.

The motion for rehearing is denied.