Martin v. MartinMartin v. Martin
The appellant, Cleo Fred Martin, appeals from the judgment of the trial court granting him a reduction in alimony, but finding him $3,639 in arrears in payment of alimony and child support and finding him guilty of contempt for failure to pаy alimony and child support. Appellant contends that his alimony payments should be terminated, that his child support payments should be reduced, and that his contempt conviction should be reversed. We affirm the judgment of the trial court.
The Facts:
Cleo Fred Martin and Carolyn Martin were divorced on July 30, 1979. Custody of the three sons was awarded to the mother, and the father was ordered to pay $400 per month in alimony and $500 per month in child support.
On September 7, 1983, Mr. Martin again sought termination of alimony, and on October 21, 1983, Mrs. Martin again sought arrearages and a finding of contempt. At trial Mr. Martin testified that in June, 1982, without consent of the court, he reduced his child support payments by one-third when his oldest son turned 18, and that his wife did not complain of this action. He also testified that he did not pay alimony in September or October 1983 on advice of counsel, who told him that the termination would be retroactive to the filing of his petition. Mr. Martin‘s testimony further revealed that his monthly gross income was $4,960, while his take-home pay was apрroximately $2,100 per month. In contrast, Mrs. Martin testified that her take-home pay from her job at Glenwood Hospital was $629.41 a month, while her estimated expenses for herself, her children, and her household were $1,441.11 per mоnth.
On January 4, 1984, the trial court signed a judgment ordering Mr. Martin‘s alimony payments reduced from $400 per month to $300 per month, and finding Mr. Martin guilty of contempt for nonpayment of alimony and child support. He was also found to be in arreаrs in the amount of $3,639. Although sentenced to 30 days in jail, his sentence was suspended, and he was given 60 days in which to pay the arrearage. Mr. Martin appealed, Mrs. Martin did not appeal or answer the appeal.
Issue No. 1:
The first issue in this case concerns the trial court‘s ruling that alimony payments be reduced. For such a reduction to be warranted, the party seeking termination or reduction must establish a significant change or modification in the parties’ circumstances since the time permanent alimony was set. Gray v. Gray, 451 So.2d 579 (La.App. 2d Cir.1984). Here appellant, who seeks termination of alimony rather than mere reduction, has a monthly gross income of nearly $5,000 and а monthly take-home pay of at least $2,100. Appellant does not contend, nor do his earnings reflect, that a change in circumstances in the amount of his earnings prevents his paying $300 per month in alimony. On the other hаnd, appellant does contend that his former wife, who is now employed full-time, no longer needs alimony. The record does not support this contention. Out of the $1,441.11 the appellee estimates as her monthly expenses, she allots $426.24 to herself, while the remainder is allotted to her three children (only $50 is allotted to the child who is no longer a minor). The Court, however, is not limited to considering only the amount the appelleе estimates as her own expenses when determining her entitlement to alimony. In evaluating the need for alimony, the Court must examine the totality of the circumstances indicative of the parties’ financial conditiоn. Gray, supra. “[T]he obligation of the parents to support their dependent children is one of the circumstances which the Court must consider in determining the entitlement and amount of alimony after divorce.
Issue No. 2:
The second issue raised by appellant concerns the trial court‘s failure to reduce child support payments in light of one child‘s becoming а major. The record reveals that appellant never requested the trial court to modify these payments. While appellant requested termination of alimony on September 7, 1983, he made no mention оf child support. His only reference to the son‘s majority came in his answer to the mother‘s petition for arrearages and contempt, and was offered as an explanation of his reduced child support payments. The trial judge apparently did not consider the issue of modification of child support payments to be before him since neither party prayed for such a modification. We do not consider the issue properly before us on appeal.
We note, nevertheless, that the original child support order of $500 per month was in globo, and that automatic modification of such support payments by operаtion of law does not occur when the oldest child reaches majority, but only when the youngest child becomes a major.
Issue No. 3:
The final issue concerns the trial judgе‘s holding appellant in contempt for nonpayment of alimony and child support. As provided in
The trial judge is vested with great discretion in determining whether a party should be held in contempt for disobeying the Court‘s orders. West v. West, 438 So.2d 706, 709 (La.App. 2d Cir.1983); Litton v. Litton, 299 So.2d 458 (La.App. 2d Cir.1974). We find the trial judge did not abuse his discretion in the present case.
Counsel‘s advice was simply one factor for the trial court‘s consideration and only related to alimony for two months. Mr. Martin was not making his first appearance before the court on contempt for nonpayment, nor were Mr. Martin‘s arrearages mainly due to nonpayment of alimony. More than 75% of the arrearages were due to nonpayment of child support. Appellant does not contend that counsel advised him to reduce child support payments. Rather appellant contends that he was not in contempt because the reduction was based on his oldest son‘s becoming a major, and because his wife did not protest the reduced payments. However, where the child suрport award is in globo, as in this case, the father is not entitled to unilaterally reduce his child support payments on a pro rata basis without first seeking court modification of the judgment. Wisdom v. Wisdom, 356 So.2d 1111 (La. App. 2d Cir.1978); Halcomb v. Halcomb, 352 So.2d 1013 (La.1977). Nor can appellant claim аn agreement with the appellee to reduce payments. The fact that the mother did not take legal steps following the reduction does not constitute implied consent to the father‘s unilateral action. Wisdom, supra. Furthermore, because a contempt proceeding is designed for vindication of the dignity of the court rather than for the benefit of a litigant, Robertson v. Robertson, 258 So.2d 125, (La.App. 2d Cir.1972), the mother‘s inaction could not cure the father‘s slighting of the dignity of thе court. We find appellant‘s unilateral reduction of child support payments unjustifiable and his explanation insufficient. Thus, as stated earlier, we detect no abuse of discretion in the trial court‘s finding of contempt.
Accordingly, for the reasons stated above, the judgment below is affirmed at appellant‘s cost.
Affirmed.