328 So. 2d 915 | La. Ct. App. | 1976
Lead Opinion
Plaintiff, Mrs. Linda May Sanford, has appealed as inadequate a judgment condemning defendant Calvin H. Sanford, Jr., to pay pendente lite alimony and child support for three children (ages 12, 9 and 2i/£ years) in the sum of $60 per week.
Before we discuss the evidence, we are compelled to make the general observation that plaintiff and her three children cannot subsist on this meager amount without some form of public aid.
Instead, we remand under the authority of C.C.P. art. 2164 to permit the litigants to prove with specificity plaintiff’s financial needs and her husband’s ability to meet them. We note as the record is now constituted, the trial judge could not reasonably have set the award higher. And yet it indicates the result is unfair. To illustrate the incompleteness of the evidence, we note plaintiff claims she needs $1,245.75 monthly for herself and children. One of her itemized expenses is $178 for payment on the mortgage note on the community home in which Mrs. Sanford did not reside when this rule was tried. She was then living temporarily with her mother (who is not obligated to support her and the children) and she indicated defendant has somehow threatened her if she occupied the house. Since both husband and wife were in court, the living arrangements for plaintiff and her children could have been clarified.
Were we to affirm the judgment of the trial court, plaintiff would be compelled to show a change in circumstances in order to seek an adjustment of the award. Such a result would subvert the ends of justice. The deficient record prevents a proper adjudication and its incompleteness is primarily due to the husband’s failure to honor the subpoena duces tecum to produce his records. We also note the evidence as to the wife’s needs could be more clearly developed. Accordingly we remand to permit the litigants to adduce the evidence the'record indicates is available and not before the court.
For the reasons assigned, this matter is remanded for further proceedings consistent with the views herein expressed. Assessment of costs is to await final disposition of this matter.
REMANDED.
. Plaintiff is unemployed and has no other source of income.
Concurrence Opinion
(concurring).
Judgment should not have been rendered on this record, which is deficient in proof of the husband’s ability to pay alimony and child support.
Nevertheless, I concur in the remand, since the trial court can remedy any inequity, if the evidence justifies it, by making a retroactive award, or by assessing attorney’s fees, or by similar appropriate action.
. The deficiency in the wife’s proof as to need can be credited to the facts that the couple had been separated for less than one month, that she had no income, and that the family was living with her mother and was dependent upon relatives for everyday needs. Under those circumstances her estimate of costs of the family needs was understandably vague.