Jacob G. STANSBURY, Jr.
v.
Linda Bryant STANSBURY.
Court of Appeal of Louisiana, First Circuit.
*171 Charley J. Schrader, Jr., Houma, for appellant.
Thomas A. Cenac, of Cenac & Authement, Houma, for appellee.
Before LANDRY, BLANCHE and TUCKER, JJ.
LANDRY, Judge.
Appellant, Linda Bryant Stansbury (Appellant), appeals the judgment of the trial court awarding her alimony pendente lite in the sum of $181.00 monthly for the support of herself and hеr minor son, Jacob Stansbury, III, pursuant to a rule taken by Appellant incident to an action for judicial separation instituted by Appellant's husband, Jacob G. Stansbury, Jr. (Appellee). Appellant contends the lower court erred in awarding insufficient alimony, and also erred in making the payments commence on a date subsequent to institutiоn of Appellee's suit for separation. We affirm in part and reverse in part.
Plaintiff's petition for separation was filed May 3, 1971. Appellant's rule for alimony was filеd June 18, 1971, and on that same day an order to show cause was directed to Appellee as prayed for. The rule was tried and judgment rendered thereon on July 13, 1971, ordering Appellee to pay Appellant alimony for herself in the sum of $91.00 monthly, and for the minor Jacob Stansbury, III, in the amount of $90.00 monthly, commencing July 16, 1971.
It is conceded that no rеcord was made of the oral testimony adduced on trial of Appellant's rule for alimony. Appellant's brief contains the recitation that a request was madе of counsel for Appellee to join in an agreed statement of facts to serve in lieu of a transcript of testimony on appeal, and that such request was declined. Appellant also notes in brief that a request was made of the trial court for written reasons for judgment and for a narrative of facts, the latter рursuant to LSA-C.C.P. art. 2131. The record contains a written "Narrative of Facts and Corrections to Supplement Material Parts of the Trial Record Omitted", dated August 9, 1971, and filed herein by the trial court on August 10, 1971, the content of which will be discussed hereinafter.
The record contains the following documentary evidence introduced on behalf of the parties: (1) A document showing (a) an itemized statement of community obligations aggregating $1,082.79; (b) an itemized statement of personal living expenses totaling $357.00 monthly, and (c) averаge monthly income of $690.00 for the year 1970, all offered on behalf of Appellee; *172 (2) A document showing (a) monthly payments and bills amounting to $328.19, and (b) a total of all monthly exрenses incurred by Appellee for personal living expenses and payment of community obligations, offered by Appellee, and (3) An itemized list of monthly expensеs in the sum of $590.00, offered by Appellant.
The trial court's narrative of facts makes only the following factual findings: (1) Appellee-husband has a monthly net income of $690.00; (2) the community obligations of the litigants total $1,082.79, on which the husband presently makes payments in the sum of $161.19 monthly; (3) the husband's business is such that he requires a minimum of $347.00 monthly in order to conduct his affairs as he hаs in the past and continue to earn his present income.
The trial court also observed as follows:
"A novel approach was necessary in this case. This court ascertained firstly what was the absolutе necessities of the husband without which he could not function and earn the net of $690.00 per month. Secondly from the $690.00, deducted the payments necessary to meet the сommunity debts. Thirdly, the balance of $181.00 was allowed as alimony and child support."
In concluding its narrative, the lower court noted that a judgment for alimony is reviewable in the еvent of a change of circumstances, and that Appellant would be entitled to an increase in alimony upon liquidation of the community debts by Appellee. For reasons which do not appear in the narrative of facts, the trial court commenced appellant's alimony payments as of July 16, 1971.
Appellant maintаins the lower court erred in (1) Giving priority to community obligations over the rights of a wife and child to alimony; (2) preferring the needs of a husband to those of a wife and child in fixing alimony pendente lite; (3) not commencing alimony payments from the date of filing of a separation suit, and alternatively (4) not fixing alimony pendente lite from the date of the filing of the wife's rule to fix same.
It is settled law that where there is no transcript of testimony made at the time of trial, appellant bears the responsibility of securing а narrative of facts as required by LSA-C.C.P. art. 2131. Chapman v. Lalumia, La.App.,
Where the parties to an action cannot agree on a statement of fact when testimony has not been taken on trial of a cause, and the trial court renders a narrative of facts as required by LSA-C.C.P. art. 2131, the narrative by the trial court is conclusive аnd binding on the parties. Patrick v. Patrick, La.App.,
In the assessment of alimony pendente lite, it is well established that trial courts are vested with considerable discretion, the exercise of which will not be disturbed save in case of abuse thereof. McMath v. Masters, La.App.,
In determining a husband's ability to pay alimony pendente lite, the courts must accept as true the husband's testimony regarding his income and expenses, where such statements stand uncontroverted in the record. Reichert v. Lloveras,
Alimony pendente lite for the support of a wife and child must be determined in the light of the husband's ability to pay, and the needs of the persons entitled thereto. LSA-C.C. arts. 148, 231; Smith v. Smith, La.App.,
Cоunsel for Appellant and Appellee each make reference in brief to various alleged circumstances testified to by Appellant and Appellee on the trial of Appellant's rule. Under the circumstances, however, we are confined to the narrative filed by the trial court. Patrick v. Patrick, above.
*173 In dеtermining the husband's ability to pay alimony pendente lite pursuant to LSA-C.C. art. 148, payments being made by the husband on outstanding community obligations are to be considered. Long v. Long,
Assuming arguendo, the trial court erred in not first determining the needs of the wife and child before attempting to fix alimony in this instance, it is a matter of no consequence under the сircumstances of this case. It is elementary that if the legitimate needs of the wife and children exceed the ability of the husband to pay, the courts can only awаrd such amount as the husband's means reasonably allow. Any other rule would lead to manifestly absurd results.
In effect, the trial court held that it was unnecessary to first determine the рrecise needs of the wife because, irrespective of the amount thereof, the husband was able to pay only the sum of $181.00 monthly. If, as found by the lower court, the husbаnd could only pay $181.00 in view of his present circumstances, the wife's showing of a greater need would be a vain and useless gesture. Considering the facts contained in the triаl court's narrative, by which we are bound, we cannot say that the trial court abused the much discretion accorded it in cases of this nature.
As regards the date from whiсh alimony is due, we note that alimony is merely the judicial sanction and enforcement, under abnormal circumstances, through the judiciary, of the husband's obligation to supрort his wife and minor children. Coney v. Coney,
It is ordered, adjudged and decreed that the judgment of the trial court is amended insofar as it fixes the date of commencement of alimony pendente lite in this instance as of July 16, 1971, and judgment rendered herein fixing the date of commencement of said alimony as of June 18, 1971.
It is further ordered, adjudged and decreеd that, except as hereinabove amended, the judgment of the trial court is affirmed; all costs of these proceedings to be paid by Appellee, Jacob G. Stansbury, Jr.
Amended and affirmed.