No. 11192 | La. Ct. App. | Jun 3, 1980

Lead Opinion

SCHOTT, Judge.

This is an appeal by a father from a judgment increasing child support for his two minor children from $700 per month set on June 30,1971, to $1250 set on October 24, 1979. The issues are whether the evidence supports the increase and whether the new amount of child support constituted an abuse of the trial court’s discretion.

The two children are a girl born December 17, 1964, and a boy born December 17, 1966. Since the time of the first judgment both parents have remarried, the mother having two children by her second *1018marriage and the father, one. The father’s income at the time of the second judgment was approximately $5,000 per month, which was a substantial increase over his income in June, 1971. The mother testified that the boy now requires psychiatric treatments once or twice a week at $60 per treatment (not a requirement in 1971). The tuition of both children, with the girl now in high school and the boy attending a private school, and all other expenses for the two children for food, clothing, recreation, transportation and shelter have increased considerably. This evidence is sufficient to warrant an increase for the support of the children in the amount of $550 per month, especially considering the increase in the cost of living between June 30, 1971, and October 24, 1979, and considering that the father with his increased income is in a position to provide his children with a higher standard of living than they were entitled to at the time of the first judgment. On the basis of this evidence and these inferences, we are not persuaded that the trial judge abused his discretion in making the increase. Phillips v. Phillips, 319 So. 2d 566" court="La. Ct. App." date_filed="1975-09-09" href="https://app.midpage.ai/document/phillips-v-phillips-1088418?utm_source=webapp" opinion_id="1088418">319 So.2d 566 (La.App. 4th Cir. 1975), Lamothe v. Lamothe, 262 So. 2d 87" court="La. Ct. App." date_filed="1972-04-18" href="https://app.midpage.ai/document/lamothe-v-lamothe-1131747?utm_source=webapp" opinion_id="1131747">262 So.2d 87 (La.App. 4th Cir. 1972).

The principal arguments of the father are that he should be permitted to pay for the psychiatric treatments himself rather than to include the cost of those treatments in the support payment to his former wife, and that the overall household figures provided by the wife indicate that his support payments for his two children are being used in large measure to support his former wife and her present husband, as well as their own two children born of their marriage.

On the first contention, appellant has no legal authority for suggesting that the custodial parent should not receive the amounts for medical support and pay the bills herself. Appellant cites no authority to require that he be given the right to pay these medical bills himself.

The second argument is not supported by the evidence which we have already discussed concerning current needs of the children and the means of their father. Starting from the proposition that the children are entitled to enjoy a standard of living commensurate with their father’s, it seems impractical for the former wife to isolate her two older children from her new family when her entire family must share the same household, eat at the same table, and spend most of their time together in the same activities. Considering all the circumstances, we are unable to conclude that any error has been demonstrated in the judgment of the trial court, and it is affirmed.

AFFIRMED.

REDMANN, J., concurs with assigned reasons.



Concurrence Opinion

REDMANN, Judge,

concurring.

A custodial parent who has two sets of children (from two marriages) can hardly feed steak to one set and beans to the other. Defendant father argues that $1,250 monthly child support cannot be spent on his children because their mother cannot afford to spend similarly on her other two children, and that the result will be that his child support money will be spent on the mother’s whole new family. But that argument does not fit our facts: after spending $300 on medical and about $200 on private schools and related expenses, the mother would have only $750 before taxes to spend on the two older children, while she has $1,400 after taxes (plus her income from snowball and ice cream store) to spend on herself, her second husband and their two younger children. Thus the issue that defendant father seeks to raise is not present here.

Defendant also argues that the $300 monthly increase for psychotherapy should have taken the form of an order to him to pay direct the bills for psychotherapy. There are reasons to commend this form in respect to substantial and unusual expenses of indefinite duration, not the least among which is economy of judicial administration. The judgment appealed from is questionable in form as judicial administration, in *1019already overcrowded courts, because it will multiply litigation: the paying parent is obliged to sue for a reduction in child support when the medical expense becomes no longer necessary; the custodial parent is obliged to sue for an increase if more frequent therapy becomes necessary. But the fact remains that the change that defendant father seeks is a matter of form rather than of substance, and it is a change he did not seek in the trial court: it should therefore not be considered on appeal notwithstanding La.C.C.P. 2164’s authorization of “any judgment which is just, legal, and proper upon the record on appeal.”