Nelson v. McCarter

212 So. 2d 467 | La. Ct. App. | 1968

Lead Opinion

GLADNEY, Judge.

This appeal involves a proceeding by Mrs. Marian Willey McCarter Nelson against her former husband, George E. McCarter, primarily for the purpose of increasing the amount of child support. Additionally petitioner requested that past due payments be made executory. The trial court denied any increase of support and rendered ex-ecutory the past due payments. Plaintiff has appealed.

By judgment of April 8, 1953 Mrs. Nelson secured a judgment of divorce from her husband, George E. McCarter, which decree awarded to the mother the custody of Rebecca Ann, issue of the marriage born May 9, 1949. No provision was then made for the payment of alimony or child support. On June 28, 1957 the father was ordered to pay $30 per month child support commencing August 15, 1957. The suit instituted by the mother to obtain an award of child support was through ordinary process.

In fixing the amount of $30 per month the trial court no doubt felt that there was no need for the father, the present appel-lee herein, to contribute any greater sum from his salary, which at that time was approximately $250 per month. During the intervening years the amount so fixed in the decree of 1957 has remained unchanged. On July 7, 1967 Mrs. Nelson instituted this action by rule nisi requesting an increase of support to $75 per month and to have decreed executory the past due payments. The evidence reveals that at the time of this last proceeding Mrs. Nelson had a gross income of approximately $350 per month and appellee had a gross income of approximately $590 per month. Subsequent to the divorce McCarter remarried and at the time of the trial of the rule, was supporting his son of the second marriage, a child of 14 years of age. In addition to his personal income the present wife of Mc-Carter was earning approximately $65 per week, although her husband stated that she was not in good health and her employment was of a temporary nature.

The appellant in asking for the increase evidenced the fact that the needs of Rebecca Ann, who recently graduated from high school, during her first year in college would be substantially increased, especially for clothes, laundry and other necessities not included in the gratuities supplied by the grandparents and herself. Although the father has testified to certain fixed expenses incurred, which he declares leaves him only $131 per month for living expenses, we can think of no reason why he should not include $45 additional to make a payment of $75 per month for the support of his daughter. The trial court concluded that this amount was needed but refrained from making the additional award of $45 per month for the reason that the parties over the years had adjusted themselves to the amount of money which each receives and each should have made plans for future years on the basis of their income. This conclusion ignores the evidence that Rebecca Ann will have these extra expenses which the court found to be necessary and which the law requires that the father assume as his proper share of responsibility in the rearing of his daughter. This was pointed out in Duncan v. Duncan, La.App., 146 So.2d 255 (2nd Cir. 1962):

“The principle that a father is primarily liable for the support of his minor children is too well established to necessitate comment. If a father under such an obligation voluntarily chooses to increase his financial obligations by a subsequent marriage, he must do so at his own risk and without impairment of the responsibility to his children.” [146 So.2d 255, 256]

It is our considered opinion that the judgment of the trial court should be modified to increase the award to $75 per month.

Counsel have argued that this proceeding was erroneously brought by summary procedure, that is, by a rule nisi, to alter the amount of child support previously fixed by a decree of this court. Although it may be conceded that ordinary procedure would be required in proceedings for alimony instituted subsequent to a final decree of divorce, the instant rule is one that is incidental to the proceeding instituted by ordinary process on April 22, 1957 in which proceeding this court fixed the amount of alimony at $30 per month. The instant proceeding, in our opinion, is incidental to litigation properly instituted by summary proceeding as prescribed by C.C. P. Arts. 2592(1), 2593.

The judgment appealed is reversed insofar as it denies an increase in the child support, and it is now ordered that there be judgment increasing the amount of child support previously set at $30 per month to the sum of $75 per month effective as of July 7, 1967. As so modified, the judgment is affirmed at appellee’s cost.

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Rehearing

ON REHEARING

BOLIN, Judge.

We granted a rehearing limited to the issue of whether this court erred in holding that the amount of child support, previously fixed by a judgment in an ordinary proceeding, could be increased by summary process.

Argument as to the merits or demerits of the amount of the increase is foreclosed since rehearing was not granted as to quantum.

Appellee urges the claim for an increase, sought and awarded on trial of a rule nisi, is not an incident to the suit previously filed citing a number of cases in support of this contention, but relying principally on the language found in Hardy v. Collins, 136 La. 467, 67 So. 333 (1915).

Appellant contends the present rule to show cause is incidental to the suit originally instituted by ordinary process citing Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Davis v. Davis, 238 La. 293, 115 So.2d 355, 356 (1959) and Williams v. Williams, 211 La. 939, 31 So.2d 170 (1947).

Assuming arguendo that summary proceeding to increase alimony for child support is not incidental to a suit previously instituted by ordinary process, we conclude defendant has waived any right to object since he filed no exception leveled at the use of rule nisi. We are convinced our ruling was correct under the jurisprudence and the following articles of the Louisiana Code of Civil Procedure of Louisiana.

Louisiana Code of Civil Procedure Article 2592 provides:

“Summary proceedings may be used for the trial or disposition of the following matters only:

“(1) An incidental question arising in the course of litigation.”

Louisiana Code of Civil Procedure Article 2593 provides:

“A summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law.

“Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall he filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required except as otherwise provided by law. (Emphasis added.)

“No responsive pleadings to an exception are permitted.”

In the official comments under the above codal article we find:

“(d) The defendant waives any objection to the improper use of summary procedure if he^ enters upon the trial without excepting to the summary procedure. Butchert v. Ricker, 11 La.Ann. 489 (1856); Younger Bros. v. Spell, 194 La. 16, 193 So. 354 (1939); Alfonso v. Ruiz, 2 So.2d 480 (La.App.1941); Roper v. Brooks, 9 So.2d 497 (La.App.1941); Cryer v. Cryer, 44 So.2d 517 (La.App.1950). See, also, Dussin v. Delaroderie, 5 Rob. 202 (La.1843); LeBoeuf v. Merle, 1 La.Ann. 144 (1846); Conery v. Heno, 9 La.Ann. 587 (1854); Succession of Moore, 18 La.Ann. 512 (1866); Succession of Esteves, 182 La. 604, 162 So. 194 (1935); Bloomenstiel v. Tridico, 156 So. 793 (La.App.1934); Foret v. Stark, 16 So.2d 79 (La.App.1943). All other exceptions which, under ordinary procedure, are required to be filed prior to answer or default should be filed prior to the commencement of the summary trial, since there is no default in summary proceedings.

“(e) Despite the well settled rule stated in Comment (d), supra, it has been held that, if the defendant does not make an appearance at the trial, he may appeal and urge his objections to the summary procedure in the appellate court. Sharp v. Bright, 14 La.Ann. 390 (1859); Succession of Esteves, supra. This rule appears undesirable for at least four reasons: (1) an appeal should be a review of the proceedings below, and if this issue was not presented to the trial judge, it should not be considered on appeal; (2) the rule throws an unnecessarily heavy burden upon the appellate courts, as it forces them to determine issues which were never presented to the trial courts; (3) there is no basis for different rules on the same subject; and (4) the rule militates against the expeditious settlement of the controversy, which is the very object of summary procedure. For these reasons, this article requires a defendant in a summary proceeding to urge his obj ections to the use of summary process by the dilatory exception filed prior to the commencement of the trial, under penalty of waiver, whether he appears at the trial or not.”

Although counsel for appellee objected verbally at the beginning of the trial he failed to comply with the mandatory provision of paragraph two of CCP 2593. Furthermore, defendant was personally served with the rule, was represented by counsel and appeared as a witness in the trial.

For the reasons assigned our original decree is reinstated and made the judgment of this court.