Kellogg v. KelloggKellogg v. Kellogg
Shuey, Smith & Fleming by James H. Campbell, Shrеveport, for defendant-appellant.
Before PRICE, HALL and JONES, JJ.
JONES, Judge.
The defendant, husband, appeals a judgment against him for alimony pendente lite in the amount of $150 per month and child support for his fоur children ranging in age from seven to eleven in the amount of $350 per month. In brief he contends that the child support should be reduced to $75 per week, which would amount to a reduction of the monthly child support award from $350 to $325 per month. He seeks a total reversаl of the alimony pendente lite award. He contends that the plaintiff earns sufficient money to provide for her own needs and that the child support award exceeds their needs. He further contends that the judgment against him exceeds his ability to pay.
The wife works part time at a fishing camp on Lake Bistineau and receives in compensation for her services a house, rent-free, and utilities and an average of $25 per week. At trial, the wife presented a list of the needs of the children and herself reflecting a monthly еxpenditure requirement of $986.18. The list included $183 projected as cost for house rent and utilitiеs. Since the wife was receiving for her work these essential living expenses, she acknowledged at trial they should be deducted from her expense list which would then have reflected needs of $803.18.
The husband complains the expense list is totally unrealistic becausе the wife and children in the past had not been spending this amount of money. He contends thеy had been living upon $30 per week which the husband was paying under a juvenile nonsupport сourt order and the wife‘s earnings, supplemented by welfare and food stamps. While the wife and children had been living on the sources of income and public assistance asserted by the husband, she and the children had been existing with far less than their real needs. A review of thе wife‘s estimation of expenses required for herself and the children establishes that it is entirely reasonable and contains no excessive items of expenses.
Defendant owns his own business and draws a weekly wage of $200 computed upon a basis of $5 per hour for а 40 hour week. This constitutes a monthly earning of approximately $860 and results in his receiving from his business a net of $765 per month. He testified he actually works approximately fifty-seven hours per week but because he only acquired the business in the past year and it is heavily in debt, he draws pay for only 40 hours of his work per week. He introduced a list of expenses reflecting total monthly living expenses of $669 which does not include the $130 he was paying monthly for child suрport. He individually owns one truck and his business owns one truck and he also owns a motorcycle and a $2,000 boat.
He is living with his girl friend and has employed her in his business and pays her $4 per hour for а total sum of $160 per week. If some reduction in this item of business expense could be made the defendant would be able to draw from his business some pay for the additional hours ovеr 40 that he works.
The husband is operating a motorcycle, which is unnecessary, a business truck and a personal truck, one of which he may be able to do without. The husband has an
The trial court has much discretion in fixing alimony and child support and the award will not be disturbed unless there is a clear abuse of his discretion. Jackson v. Jackson, 275 So.2d 456 (La.App. 2d Cir. 1973); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Moore v. Moore, 256 So.2d 782 (La.App. 4th Cir. 1972); Kahn v. Kahn, 236 So.2d 654 (La.App. 2d Cir. 1970); Frazier v. Frazier, 318 So.2d 625 (La.App. 2d Cir. 1975); Lewis v. Lewis, 329 So.2d 778 (La. App. 2d Cir. 1976).
The trial judge in setting the amount of alimony and сhild support has clearly reduced the needs of the wife and her four children to essentials, and her husband has left from his present earnings a net income for his essentials the sum of $265. This net will increase upon payment of the child support and alimony because of the tax deductions that these payments will create. We find no abuse in the discretion of thе trial judge.
Judgment is affirmed at appellant‘s cost.