Cobb v. CobbCobb v. Cobb
This civil appeal arises out of litigation to set child support obligations for the benefit of an 18-month old child. Defendant-in-rule/appellant, Larry Cobb, appeals the district court‘s ruling ordering him to pay plaintiff-in-rule/appellee, Cynthia Miciotto, $575 per month in child support. For the following reasons, we amend and affirm as amended.
Appellant and appellee separated in October 1987 when appellant left the matrimonial domicile. Appellant filed suit against appellee in March 1988 alleging constructive abandonment. Shortly thereafter, appellee filed a reconventional demand asserting Mr. Cobb‘s abandonment and seeking a rule to set child support. The original rule setting was passed by the consent of the parties.
Appellant now appeals the district court ruling regarding child support arguing that the district court abused its discretion in assessing him with such a substantial percentage of the overall amount of child support, especially in light of the fact that his wife earns approximately three times more than he does.
Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.
The difficulty of determining precisely how the joint household expenses are to be apportioned between the parent and the child has been noted. Osborne v. Osborne, supra. In some cases, the expenses have been apportioned on a pro rata basis according to the number of people in the household. Other cases have found a pro rata division inappropriate, especially where, as in the instant case, the only residents of the domiciliary household are the domiciliary parent and one child. A child does not “use” one-half of the monthly mortgage payment or rent, utilities, and other expenses. Chaffee v. Chaffee, 398 So.2d 1169 (La.App. 2d Cir.1981). See also Osborne v. Osborne, supra, and cases cited therein.
The calculation of child support by a mathematical formula is impossible and all of the varying facts and circumstances of each individual case should be taken into consideration in fixing the amount awarded. Sims v. Sims, supra; Hudson v. Hudson, 421 So.2d 1188 (La.App. 2d Cir.1982).
The linchpin of appellant‘s argument is the substantial disparity between his income and that of the appellee and the disproportionate allocation of the child support obligation between the parties.
Appellee is a general dentist who has been practicing in her profession since 1984. She has her own practice in an office building owned by her father for which she pays no rent. Her net profit in 1987, after salaries and expenses, and taking into account depreciation, was approximately $98,000. Her income for 1988, using the same formula as was used to determine her 1987 income, was projected to be $113,000. Additionally, appellee earned interest on separate funds in 1987 in the amount of approximately $13,000. Appellee‘s affidavit and other record evidence failed to adequately disclose whether she could anticipate receiving
Appellee estimated her expenses which were related to the child to be approximately $1,700 per month. That amount was derived from assigning one-half of the house note and utilities to the child plus expenses peculiarly related to the child, such as diapers, clothing, toys, and child care expenses. The district court reduced this amount to $980 per month, concluding that one-half of such major expenses as housing and utilities is more than an 18-month old child would “use.”
Appellant earns his living as a salesman for a medical supply company. He earns a salary of $24,000 a year, plus bonuses which, in 1988, totaled $7,236.50. He also earned interest income in 1988 of $3,763.24, bringing his 1988 income to just under $35,000. His affidavit of income and expenses estimates his average monthly expenses to be approximately $2,500.
In 1988, appellant‘s total income from all sources would have been approximately $35,000. Appellee‘s income, including interest income, would have been approximately $125,000, approximately three and one-half times the amount earned by appellant.
Although he earns little more than one-fifth of their total combined salaries, appellant was ordered to contribute over half of the total support obligation calculated by the district court. In this regard, we cannot but conclude that the district court abused its discretion.
Even taking into account those non-monetary contributions made by the domiciliary parent as required by Ducote, supra, and Chaffee, supra, we believe that appellant has been saddled with a disproportionate share of the total child support obligation. Based upon their respective salaries, the total amount of the monthly child support obligation, and the district court‘s allocation of the child support obligation between the parties, it appears that appellant is expected to contribute one-fifth of his gross income per month to the support of the child while appellee is asked to contribute less than five percent.
In addition to our independent determination that the district court abused its discretion in allocating the child support obligation between the parties, we find further support in the newly enacted Child Support Guidelines,
Based upon the schedule of support contained in
The trial court has wide discretion in setting the amount of the award. Miller v. Miller, supra; Osborne v. Osborne, supra. When an appellate court finds the trial court erred in the amount of its award for alimony, the appellate court is not free to award an amount it considers “appropriate” based on the evidence, but can only lower the amount to the highest point which is reasonably within the discretion of the trial court. Myers v. Myers, 344 So.2d 451 (La.App. 2d Cir.1977); Seal v. Bell, 464 So.2d 1026 (La.App. 1st Cir.1985).
Concluding as we have that the district court abused its discretion in ordering appellant to pay appellee $575 per month for the support of an 18-month old child, we must now determine the highest award which would have reasonably been within the district court‘s discretion under the circumstances.
For the above and foregoing reasons, we amend the district court‘s judgment as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of CYNTHIA MARIE MICIOTTO COBB and against LARRY GENE COBB condemning LARRY GENE COBB to pay unto CYNTHIA MARIE MICIOTTO COBB the sum of FOUR HUNDRED DOLLARS ($400.00) per month as child support for the care and support of the minor child, Caroline Cobb, commencing as of the date of judicial demand herein, April 5, 1988, said support payable on or before the first day of each successive and succeeding month until further orders of the court.
All costs of this appeal are to be borne by appellee.
AMENDED AND, AS AMENDED, AFFIRMED.