Lester L. DUCOTE, Jr.
v.
Neva S. DUCOTE.
Supreme Court of Louisiana.
*837 James E. Diaz, Davidson, Meaux, One-bane, Donohoe, Bernard, Torian & Diaz, Lafayette, for defendant-applicant.
Seth Lewis, Jr., Lewis & Lewis, Opelousas, for plaintiff-respondent.
SANDERS, Chief Justice.
Neva S. Ducote sought a review of the Court of Appeal's judgment affirming the district court's decree ordering Dr. Lester L. Ducote, Jr., her former husband, to pay her $400.00 for alimony and $600.00 for child support. La.App.,
The parties married in 1957 and divorced in 1970. The divorсe judgment awarded Mrs. Ducote the custody of their four minor children and an alimony and child support stipend of $900.00 per month.
Dr. Ducote ceased praсticing medicine in 1973 to pursue graduate studies which would enable him to specialize in cardiology. Due to substantial loss of income, the parties stipulated to a reduction of the payments to $800.00 a month. The court entered judgment accordingly.
At the end of June, 1974, Lester J. Ducote, the only son, left his mother's home and began to live with his father.
In January, 1975, the father instituted proceedings seeking the permanent custody of his son and a reduction of the monthly support payments. Mrs. Ducote filed a counter-claim requesting that the payments be increased to $1,465.50 per month. After separate hearings on the demands, the court transferred the custody of Lester to the father and granted Mrs. Ducote an increase of the award to $1,000.00, $400.00 for alimony and $600.00 for child support.
Dr. Ducote aрpealed the judgment increasing the support payments. In her answer, Mrs. Ducote prayed for an increase of the payments to $1,465.00. As we have notеd, the Court of Appeal affirmed.
Mrs. Ducote alleges that the Court of Appeal erred in failing to grant her full demand for alimony and support.
Article 160 of the Louisiana Civil Code vests the court with discretion in awarding a wife who is not at fault permanent alimony after divorce. The proper award is that amount whiсh will provide the wife with sufficient means for her maintenance. The alimony payment may never exceed one-third of the husband's income.
In Bernhardt v. Bernhardt, La.,
"Common sense dictates that the term `maintenance', while meaning primarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife."
See also Kent v. Kent, La.App.,
For a court to alter an alimony award establishеd by a consent judgment the party seeking modification must show a change in circumstances of either party from the time of the award to the time of the trial of the alimony rule. Bernhardt v. *838 Bernhardt, supra; Fisher v. Fisher, La. App.,
Mrs. Ducote urges that the monthly alimony payments should be increased to $600.00 because Dr. Ducote's income has substantially increased since 1973, and because the cost of living has risen.
In rebutting this contention, Dr. Ducote points out that with the monthly award of $800.00 she has been able to manage a housеhold of five people, remain current on her bills, live in a very nice neighborhood, provide the proper schooling, clothing, and food for herself and her children, and make contributions to her church.
The fact that the cost of living has risen does not alone constitute such a change in circumstanсes that warrants an increase of an alimony award. These higher costs affect both parties equally. Moreover, since the percentile оf inflation fluctuates monthly, a court would be hard pressed to arrive at an accurate figure to reflect this factor. See, Fakouri v. Perkins, La. App.,
Mrs. Ducote's evidence demonstrates that the physician's income was formerly $7,800.00, whereas, in 1975 his gross income was approximately $163,000.00. The evidence thus reflects an estimated $155,200.00 annual difference from the time of the award to the time of the trial of these proceedings. The physician has since remarried.
Mrs. Ducote's monthly bills include a $208.50 home mortgage note, property taxes, house insurance, household expenses, utilities, telephone, food, clothing, medical bills, and income tax. We agree with the lower courts that the composite monthly budget is exaggerated. We find, however, that the evidence supports an additionаl amount of $100.00 monthly for the wife's maintenance, or an award of $500.00 per month as alimony.
Louisiana Civil Code Article 227 provides that parents have the obligation to support, maintain, and educate their children. This support shall be granted in proportion to the needs of the child and the circumstances of the parent who is to pay. LSA-C.C. Art. 231. If the parents are divorced and the children are living with their mother, the children are entitled to the same standard of living as if thеy resided with their father whenever the financial circumstances of the father permit. Wilmot v. Wilmot,
Dr. Ducote stipulated at the trial that he was financially able to рay the full amount Mrs. Ducote prays for.
Mrs. Ducote alleges that the father's monthly child support payments should be increased to $865.50. To justify this increase she рoints to the extraordinarily high earnings of the father, the higher cost of living, and the additional expenses for the children.
Dr. Ducote contends that since one child has been transferred from her custody to his, the child support payments should reflect that she is now only responsible for the three girls.
Mrs. Ducote has failеd to show that the daughters residing with her (ages 14, 10, and 9) are subject to a lower standard of living than that which would be afforded them living with their father. Their home is only four blocks from Dr. Ducote's home. The girls have taken both dancing and piano lessons; in order for them to practice, their father bought them a trampoline and a piano. Mrs. Ducote admits that her former husband gives them generous gifts, and that on one occasion he gave the fourteen year old a designer dress. Her testimony further reveals that they live in a desirable neighborhood, that they are properly clothed, housed, and fed. This evidence indicates that the girls are provided a standard of living harmonious with their father's station.
*839 For the reasons already noted, the higher cost of living is not of itself determinative of an escаlation in the award.
We agree with the Court of Appeal in rejecting the doctor's contention that his former wife should accept employment and contribute monetarily to the support of the children. Although Mrs. Ducote is a licensed practical nurse and her children attend school, we believe under the circumstances that she is justified in remaining at home. If she did accept employment, she would have to hire a housekeeper to perfоrm the household duties and to care for the girls when they return home from school. Moreover, daughters of this age need the attention of a mother. The dutiеs of preparing meals, washing clothes, providing transportation, furnishing care and guidance, and performing all the day-to-day services that are demаnded of a mother contribute substantially to the mutual obligation of support. See Gravel v. Gravel, La.App.,
Mrs. Ducote's final contention that the children's needs greatly exceеd the lower court's award is not supported by any concrete evidence in the record. In fixing the amount of support, the trial judge is vested with considerable discretion. The record does not convince us that the trial judge abused his discretion in setting the child support payment at $600.00 per month. See Cloud v. Cloud, La.App.,
For the reasons assigned, the judgment of the Court of Appeal is amended to provide alimony to the wife in the amount of $500.00 per month and a total award for alimоny and child support of $1,100.00 per month. As thus amended, the judgment of the Court of Appeal is affirmed.
DENNIS, J., concurring in part and dissenting in part is of the opinion the former wife is entitled to the full relief sought.