
    Verna M. NASH, Plaintiff-Appellee, v. Mynona Andrews NASH, Defendant-Appellant.
    No. 82-715.
    Court of Appeal of Louisiana, Third Circuit.
    May 10, 1983.
    Herman I. Stewart, Jr., of Kay & Stewart, DeRidder, for defendant-appellant.
    Edwin L. Cabra of Cabra & Leach, Lees-ville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER, LA-BORDE, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The issue in this reduction of alimony appeal is whether a wife’s prolonged failure to seek employment necessarily constitutes a change in circumstances under La. Civil Code art. 160, thus justifying a modification of an earlier alimony judgment. The trial court held that it does and reduced alimony. The wife appealed. We reverse and dismiss the husband’s rule to reduce alimony. We hold that where there has been a consent judgment fixing alimony under circumstances where the wife was not then working, and where the evidence discloses the wife’s future employment was not contemplated, her failure to seek employment cannot be regarded as a change in circumstances.

The facts are undisputed. Verna M. Nash and his former wife, Mynona Nash, were divorced in 1980 after a marriage of 36 years. He retired from the military with the rank of lieutenant colonel. Their children are now grown and on their own. The couple married when Mynona was 17. She was never employed during the marriage. She has only a high school education. During the marriage she devoted herself to her children, her husband and his military career. She is presently age 54 and in good health.

The judgment of divorce dated September 1980 contained the following alimony provisions:

“[Djefendant, YERNA M. NASH, pay unto petitioner, MYNONA A. NASH, born Andrews, permanent alimony in an amount equal to one-half (V2) of defendant’s military retirement pay, including future cost of living increases and one-half (V2) of defendant’s VA disability pension, including future cost of living increases, said amount however to be subject to credit and reduction for one-half (V2) of the cost of the premiums to be incurred in obtaining the following annuity and insurance policies;
(a) an insurance policy on the life of Verna M. Nash, providing for an annuity payment of at least $700.00 per month to Mynona A. Nash for the remainder of her lifetime in the event of the death of the said Verna M. Nash (said policy to be placed in effect upon termination of existing United States Army Survivor Benefit Plan which would terminate upon final divorce);
(b) a mortgage cancellation policy on the life of Verna M. Nash or an equivalent term insurance policy, providing funds sufficient to pay off the existing mortgage obligation pertaining to the residence of Mynona A. Nash, situated at 15 State Street, DeRidder, LA 70634.”

At the present time the wife is receiving alimony of $1,072 out of the husband’s net monthly income of $3,456. His income consists of his retirement benefits supplemented by his pay as a civilian civil servant at Fort Polk.

The husband was the one who, in the words of the trial court, “proposed and structured” the alimony arrangement above quoted. The wife consented and the judgment was signed. She was not employed at that time. She has remained unemployed and has not sought employment.

The husband filed the present rule to decrease alimony in 1982, two years after the September 1980 consent judgment. In the meanwhile, the only substantial change in either his or his wife’s financial circumstances was the incurring of a $5,000 medical bill by the husband for a face-lift. But it is not this voluntary medical expense that he relies upon as a change in circumstances. It is the absence of a change — the wife’s continued unemployment — that the husband utilizes as a basis for demanding a reduction of alimony. His argument is that Act 72 of 1979 which amended Civil Code art. 160 to add earning capacity as an element for consideration in determining alimony requires a holding that the failure of his wife to seek employment during the two years intervening since the alimony judgment amounts to a change in circumstances.

The trial judge agreed and reduced alimony from $1,072 to $772. The trial judge felt this result was necessary because the 1979 amendment to article 160 mandates that the court take into consideration the time necessary for the recipient of alimony to acquire appropriate education, training or employment. Since the wife has not actively sought employment, the trial court reasoned that that constituted a change in circumstances.

We disagree. It is clear from the language of the judgment which was proposed by the husband and accepted by the wife, that it represented a permanent alimony arrangement. The original judgment contains nothing suggesting that the parties contemplated the wife was to seek education, training or employment. There is no indication that the award was contingent upon any plans for the wife to go to work, or that whether she did or did not go to work would affect the permanency of the figure proposed and accepted. Earning capacity was an element for consideration in determining alimony under article 160 when the agreement was made. The original award was based on consent which has the same force and effect as a considered decree. Under these circumstances the award can be decreased only if the husband proves that there has been a substantial change in the circumstances of one of the parties. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Willis v. Willis, 355 So.2d 999 (La.App. 4th Cir.1978), writ denied, 356 So.2d 1389 (La.1978); Howell v. Howell, 391 So.2d 1304 (La.App. 4th Cir.1980); Bass v. Bass, 417 So.2d 67 (La.App. 3rd Cir.1982).

The husband did not prove that there has been a substantial change in the circumstances of either party. The wife was not working then and is not working now. That circumstance has not changed. The only actual change that has occurred is that the husband has had a change of heart.

We said in Cormier v. Cormier, 422 So.2d 719 (La.App. 3rd Cir.1982) that an unemployed spouse who had been found to have no earning capacity cannot be required to seek employment as a condition to an award of alimony. In the instant case the earning capacity of the wife was considered in the 1980 proceedings. The award was fixed accordingly. Therefore, the subject is removed from our consideration. It has been determined by the parties. Something more must now be shown than merely the wife’s failure to look for work to show a change in circumstances.

For the above reasons, the judgment of the trial court decreasing the alimony owed by plaintiff, Verna M. Nash, to defendant, Mynona Andrews Nash, is reversed and set aside and plaintiff’s rule is dismissed with prejudice. All costs at the trial level and on appeal are taxed to plaintiffs, Verna M. Nash.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns reasons.

LABORDE, J., dissents and assigns reasons.

STOKER, Judge,

concurring.

I concur in the result reached by the majority opinion. This concurrence is based on one particular circumstance. Therefore, I do not reach the fundamental issue on which the majority and dissenting opinions are based.

After a study of the record it becomes quite evident why Mrs. Nash did not seek employment or take steps to equip herself to earn some portion of her livelihood. The reason she did not is that Mr. Nash advised her that it would not be necessary. At the time of the separation Mr. Nash took the magnanimous position that he should take care of Mrs. Nash for the remainder of her life. He proposed the arrangement of which he now complains. She accepted the arrangement. Mr. Nash admitted at the hearing on the matter that he never suggested to Mrs. Nash that she seek employment prior to petitioning for the alimony reduction sought in this case.

The position of the trial court (that a reduction is in order) is predicated on Mrs. Nash’s failure to take steps since the separation to earn some of her own support. This predicate is in fact lacking because Mr. Nash led Mrs. Nash to believe that such a course would not be necessary. At this point, at least, I should think that Mr. Nash’s assurances, relied upon by Mrs. Nash, should operate as an estoppel against him. Her position is certainly not unreasonable under the circumstances. Because of this special circumstance, I concur in the reversal of the trial court’s judgment.

In order to emphasize the moral position of Mrs. Nash and the extent to which Mr. Nash’s assurances ran, I will burden this concurrence with the following quotations from the transcript of the testimony.

On pages 58 and 59 of the transcript the following quotations and answers by Mr. Nash are recorded:

“Q These items that we’re referring to in payments by you to Mrs. Nash, there were all agreed to by you, were they not?
A Yes.
Q These were, in fact, your own proposals to your wife whenever y’all separated, was it not?
A That’s true. May I elaborate on that answer?
BY MR. STEWART:
Wait until your counsel asks you these things.
BY MR. CABRA:
Your Honor, I think he has a right to explain his answer.
BY THE COURT:
He can explain his answer. Explain it.
BY MR. STEWART:
Q Go ahead.
A Yes, I did. In fact, except for the changes for legality, I drew up the agreement. I drew up the agreement based upon my mental frame of mind at the time, knowing what my income was, and remembering also that we were married when she was seventeen and I was twenty. I have been her sole support for these years, and even with the divorce coming up, and I say, my personal and mental frame of mind. I had been responsible for her since she was seventeen years old. I consider myself still responsible for her to assure that I was providing for her for the best way I could, even with the divorce coming up. But I say again, that was my frame of mind based upon our life together.”

Mr. Nash admitted, as recorded on transcript pages 61 and 62, that he never suggested to his former wife that she should go to work and contribute to her own support:

“BY MR. STEWART:
Q Mr. Nash, have you ever advised your wife of how easy it would be for her to get a job as a GS-3?
A No, I’ve had very little occasion to communicate with my wife since our separation.
Q You have written letters on occasion, haven’t you?
A Yes.
Q Have you ever suggested to her in any way that she apply for a GS-3 job?
A Not specifically to apply for a GS-3 job, no.
Q But you come into Court here saying she could have had a GS-3 job all this time, but you never suggested it to her, did you?
A I would say that only from the point that whether jobs are available to her or not. I know that GS-3 jobs are available, because of where I work. There may be better jobs available right here in DeRidder, but I don’t have any knowledge of those.
Q But you have knowledge of this, but you’ve never suggested it to her?
A No, I didn’t feel it was my position to.”

As recorded on transcript page 72 Mr. Nash reiterated what had been his initial attitude toward his wife working but states that he had since changed his mind:

“Q Mr. Nash, are you asking to terminate alimony for your wife?
A No, I’m not asking to terminate. I recognize that being a housewife all the years that she was, at her — she has a reduced earning capability, and that she supported me as I got to the state in life that I am now. I am willing to augment that. As I mentioned previously, at the time we separated, I had been her sole support for thirty-four years, and mentally I considered myself as still being totally responsible for her support. Since that time I have reconsidered. I was not advised by counsel at the time, and I frankly see no reason at this point that I should be her sole support, but I am willing to pay something to augment her own reduced earning capabilities.”

Mrs. Nash stated on transcript pages 74-77 her reliance on what her husband told her and the alimony arrangement embodied in the alimony judgment based on his suggestions. The testimony is recorded as follows:

“Q What attempts have you made to seek employment since the date that you and your husband physically separated?
A None, because he told me that he would take care of me for life, that he felt that I had earned that retirement as much as he had, and that I deserved it, and I never thought that I would have to do it.
Q Had earned your portion of his retirement pay?
A Yes, that’s true.
Q ■ Now, if I understood your response to my question you have not sought any employment whatsoever since the day that you physically separated?
A No.
Q Have you attempted to seek any type of further education past your high school degree during this past three years period of time?
A No.
Q Do you intend to?
A I never thought about it, because I believed him.
Q In other words, it’s your feeling that since you’re now divorced from him that he should support you in whatever is necessary for the rest of your life?
A It was in the judgment. I believed the judgment. That’s what I believed. It was in writing and it was in Court and I believed it.
Q Do you feel you have no obligation to try to help yourself at all? That your ex-husband is responsible for maintaining you, whatever your needs are, from now on?
BY MR. STEWART:
Your Honor, I’m going to object to the question. What her belief is in that regard at this stage, I don’t think—
BY MR. CABRA:
Well, I think it’s—
BY THE COURT:
Objection overruled.
BY MR. CABRA:
Q You can answer the question.
A Tell me that again.
Q Do you feel that it’s your ex-husband’s obligation, or likewise you have no obligation to assist in your daily and monthly and yearly needs from now on, that he should be your sole source of support from now on?
A Well, I go back — it was in the judgment, and I believed it. I didn’t know that it wasn’t true.
Q You’re saying that in the judgment as you understood it that was filed in this Court it says your husband is going to provide all of your needs from now on?
A No, half of his retirement. He gets another civil service check, and I would get half of his retirement for life.
Q Let me ask you the question again, Mrs. Nash, which you still haven’t answered. You feel you have no obligation to assist yourself at all, to seek employment, to try to better yourself at all since he’s no longer there to provide all your needs? Is it your feeling that regardless of what this judgment says that you have no obligation to assist yourself in life at all, by education, by training, by on-the-job training, by seeking some sort of employment, anything?
A I never thought about it. I never thought about going out at my age and starting a career.
Q You never thought about seeking any type of job? I’m not talking about a career, for your information.
A No, I didn’t, because it was — I believed this — when I came to Court here, and he had told me all these years that — well, not all these years, he had always said I would get half of his retirement, I totally believed it, and so, I didn’t think about looking for a job. I just didn’t.
Q I would take it until this rule to reduce this alimony was filed, you still hadn’t thought about it?
A No.
Q You just assumed he would provide all of your needs from now on?
A As I said, it was written in a judgment, and I believed (sic) Court. I guess maybe that’s naive.
* * * yy

For the reasons I have stated above, not only should Mr. Nash be estopped at this point from seeking relief in alimony reduction; the very basis for the trial court’s reasons for judgment are lacking. Mrs. Nash did not arbitrarily fail to seek employment or equip herself to earn some of her living. Considering all the circumstances, I would not fault Mrs. Nash for not attempting to support herself to some degree. She was entitled to believe that she need not try to compete in the employment market at her age and that she could rely on Mr. Nash’s prior assertions to that effect which had been given the sanction of a judgment of court. In this regard I do not believe she was naive.

For these reasons I concur in the result reached by the majority.

L ABORDE, Judge,

dissenting.

To accept the majority view is to completely disregard the clear language of Louisiana Civil Code Article 160 which mandates that the trial court “shall consider ... the time necessary for the recipient to acquire appropriate education, training, or employment .... ” (emphasis added). Without even attempting to acquire appropriate education, training or employment, Mrs. Nash, should not be permitted the option of continuing that status and contend in defense to a petition for reduction that the circumstances have not changed. If Mrs. Nash were 24 years old instead of 54, would the majority still adhere to their view?

The trial court interpreted Article 160, specifically the phrase, “the time necessary for the recipient to acquire appropriate education, training or employment” as follows:

“. .. the spouse who is due alimony must now make an effort to acquire appropriate education and training to become employed unless she is unable to because of age, health or some other circumstance. She cannot because of indolence, spite or revenge refuse to contribute to her own needs.”

The trial court did not eliminate alimony entirely. The reduced award is still substantial. Mrs. Nash has obligations she needs to fulfill under Article 160. Within the evident meaning of Article 160 it is impossible for me to see any abuse of discretion by the trial court.

For these reasons, I respectfully dissent.  