McLaughlin v. McLaughlinMcLaughlin v. McLaughlin
- Reporters:
- ,
- Before:
- Norris, Hightower, Caraway
Joseph Craig McLaughlin appeals a judgment awarding his former wife, Cinda Olson McLaughlin, $300 per month in permanent alimony. For the following reasons, we affirm.
Mr. and Mrs. McLaughlin were married on July 12, 1986. One child, Craig, was born of the marriage on December 21, 1988. Mrs. McLaughlin also has two sons from a prior marriage, ages 15 and 19 at the time of the hearing, who lived with her and Mr. McLaughlin. The couple‘s last matrimonial domicile was located in Ouachita Parish.
On April 13, 1995, Mrs. McLaughlin filed a petition for divorce pursuant to
Mrs. McLaughlin testified that she requested her husband to leave because of his marijuana use and his habit of staying out late and coming home intoxicated. After she told him to seek help for his drug abuse or leave, she claimed that Mr. McLaughlin chose to leave. Mrs. McLaughlin testified that he showed no interest in reconciliation after they separated on March 1, 1995.
Trial court ruling
On May 31, 1996, the trial court issued a written ruling finding that Mrs. McLaughlin was free from fault in causing the dissolution of the marriage despite Mr. McLaughlin‘s unpersuasive attempt to place fault on her. Instead, the court opined that the primary cause of their separation was Mr. McLaughlin‘s recreational use of marijuana and Mrs. McLaughlin‘s refusal to tolerate such conduct.
The trial court also noted that Mrs. McLaughlin had very limited income from her seasonal employment at a fireworks stand and suffered from a congenital kidney problem. However, despite Mrs. McLaughlin‘s claim that her condition prevented her from working full-time, the court determined that she was capable of minimum wage type work and fixed the permanent alimony at $300 per month. A judgment consistent with the ruling was signed on June 25, 1996.
Mr. McLaughlin appeals, raising three assignments of error. First, he contends that the trial court erred in finding Mrs. McLaughlin free from fault in the break up of the marriage. Second, Mr. McLaughlin argues that the court erred in not determining Mrs. McLaughlin had sufficient means of support in light of her present earnings and earning capacity. Finally, he alleges that the trial court considered neither the reasonableness of Mrs. McLaughlin‘s expenses, nor the jurisprudence concerning what expenses should be considered in calculating a permanent alimony award.
Applicable law
Fault precluding alimony continues to include the grounds enumerated in former
The claimant spouse, however, need not be totally blameless in the martial discord. Because fault is a factual finding turning largely upon a trial court‘s evaluations of credibility, it will not be disturbed on appeal unless manifestly erroneous. Briscoe, supra.
In order to be eligible for permanent alimony, the claimant also must prove necessitous circumstances.
In deciding the claimant‘s entitlement to permanent alimony, the court shall consider his or her earning capacity, in light of all other circumstances.
(a) The income, means, and assets of the spouses;
(b) The liquidity of such assets;
(c) The financial obligations of the spouses, including their earning capacity;
(d) The effect of custody of children of the marriage upon the spouse‘s earning capacity;
(e) The time necessary for the recipient to acquire appropriate education, training, or employment;
(f) The health and age of the parties and their obligations to support or care for dependent children; and
(g) Any other circumstances that the court deems relevant.
Discussion: Mrs. McLaughlin‘s freedom from fault
Mr. McLaughlin contends that Mrs. McLaughlin was not free from fault because she took a trip with a married man during the post-separation, pre-divorce period. Mrs. McLaughlin admitted at trial that after separating from Mr. McLaughlin, she accompanied her brother-in-law, John Growl, to Disney World in Orlando along with his daughter and her three sons. Mr. Growl was separated from Mrs. McLaughlin‘s sister at the time. However, Mr. Growl testified that he offered to take Mrs. McLaughlin and her children on the trip to provide company for his daughter, and that he and Mrs. McLaughlin stayed in separate hotel rooms throughout the trip. Mrs. McLaughlin‘s son, Jason Bratton, corroborated Growl‘s testimony. As there was no evidence of a sexual relationship between Mrs. McLaughlin and Growl, we find that this trip does not amount to alimony-precluding fault. See Billingsley, supra.
Mr. McLaughlin also argues that Mrs. McLaughlin‘s constant, unsubstantiated accusations of adultery should be considered cruel treatment sufficient to render her not free from fault. Mrs. McLaughlin testified that she suspected Mr. McLaughlin was having an extramarital affair because she found condoms in his travel bag and his pockets. However, Mr. McLaughlin denied committing adultery and explained that he kept the condoms because Mrs. McLaughlin had periodic outbreaks of the herpes virus.
Mere accusations of an illicit affair do not constitute alimony barring fault. See Adams v. Adams, 389 So.2d 381 (La.1980); Baxter v. Baxter, 607 So.2d 823 (La.App. 1st Cir.1992). Further, to be legal fault, the acts or omissions must be an independent contributory or proximate cause of the marriage‘s dissolution. Unkel, supra. At trial, Mr. McLaughlin did not testify that Mrs. McLaughlin‘s accusations caused the dissolution of the marriage. Accordingly, we do not view such accusations as alimony-precluding fault.
A trial court‘s decision regarding fault is a factual finding based on its determination of credibility and, as such, will not be disturbed absent a finding of manifest error. Briscoe, supra. We find the trial court‘s conclusions that the basic cause of the separation was Mr. McLaughlin‘s recreational use of marijuana, and that Mrs. McLaughlin was free from fault, were not manifestly erroneous. This assignment of error is without merit.
Insufficient means of support
Mr. McLaughlin also contends that the trial court erred in not determining Mrs. McLaughlin had sufficient means of support in light of her present earnings and earning capacity. Mrs. McLaughlin, age 40, has a high school education and worked full-time at K-Mart prior to this marriage. At the time
The trial court found that Mrs. McLaughlin was capable of minimum wage work despite her claims of health problems. Although Mrs. McLaughlin testified that she was searching for a job, she still was not employed and therefore not self-sufficient at the time of trial. Difficulty in finding employment suitable for the spouse‘s age, training and ability is a proper consideration in setting permanent alimony. Fountain v. Fountain, 93-2176 (La.App. 1st Cir. 10/7/94), 644 So.2d 733. The effect of custody of the children of the marriage upon the spouse‘s earning capacity and a party‘s obligation to care for dependent children are also considerations.
Mrs. McLaughlin‘s expenses
Finally, Mr. McLaughlin alleges that the trial court considered neither the reasonableness of Mrs. McLaughlin‘s expenses, nor the jurisprudence concerning what expenses should be included in calculating permanent alimony. He contends that Mrs. McLaughlin included her children‘s expenses in her affidavit of monthly expenses and included some items which should not have been considered in the calculation.
A trial court has much discretion in fixing alimony awards and its rulings will not be disturbed absent a manifest abuse of discretion. Guillory, supra. The trial court‘s ruling does not specify how it determined the award of $300 per month. However, after reviewing the record, we determine that this amount is not an abuse of discretion.
Mrs. McLaughlin submitted an affidavit of monthly expenses in the total amount of $2,381. At trial, she testified that she has reduced her car insurance premium by $40 a month which would reduce her total expenses to $2,341 per month. Mrs. McLaughlin receives $541 per month in child support from her first husband and $429 per month in child support from Mr. McLaughlin. She earns $2,000 per year (or $166.66 per month) at her job at the fireworks stand. Thus, her total means of support is $1,136.66 per month.
Mr. McLaughlin argues that the following expenses are excessive or should not be considered in determining permanent alimony:
| Car insurance (includes insurance for her two sons from her prior marriage) | $233 |
| Life insurance | $ 50 |
| Entertainment expenses | $ 50 |
| Cable television service | $ 40 |
| Clothing | $400 |
| Phone | $ 50 |
| Total | $823 |
We agree that entertainment expenses and cable television service are not for a spouse‘s maintenance and thus should not be considered in fixing permanent alimony. Guillory, supra; Richard v. Richard, 527 So.2d 481 (La.App. 5th Cir.1988). Also, to the extent the claimed insurance premium covers her sons of the prior marriage, this expense is not her maintenance. Further, Mrs. McLaughlin‘s $400 monthly clothing expense, if attributable to her alone and not her children, is apparently excessive. However, even if we were to deduct all of the total contested amount from Mrs. McLaughlin‘s expenses, her remaining expenses would still exceed her means by $381.34.1 Accordingly, the trial court‘s award of $300 per month is not excessive and is not an abuse of its discretion.
For the foregoing reasons, we affirm the trial court‘s award of $300 monthly permanent alimony to Cinda Olson McLaughlin. Costs of this appeal are assessed to the appellant, Joseph Craig McLaughlin.
AFFIRMED.