
    Sharon Lynn Shannon BISHOP v. Joseph F. BISHOP, Jr. Joseph F. BISHOP, Jr. v. Sharon L. Shannon BISHOP.
    Nos. 11442, 11443.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 1981.
    
      A. D. Freeman of Satterlee, Mestayer & Freeman, New Orleans, for Joseph F. Bishop, Jr., defendant and appellant.
    Bruce G. Reed, Reed & Reed, Floyd J. Reed, New Orleans, for Sharon Lynn Shannon Bishop, plaintiff-appellee.
    Before BOUTALL, SCHOTT and CHE-HARDY, JJ.
   BOUTALL, Judge.

This appeal is concerned with the amount of an award of child support, the amount of an award of attorney’s fees, and the refusal to continue permanent alimony after divorce.

In these consolidated cases, Sharon Lynn Shannon Bishop and Joseph F. Bishop, Jr. obtained judgments of separation and subsequent divorce, with custody of their minor child Christopher awarded to Mrs. Bishop. In both of those judgments there was an award of alimony to Mrs. Bishop and child support for Christopher as agreed upon between the parties. The parties have filed post-divorce motions to increase and decrease the amounts of the alimony and child support, and a rule for contempt alleging past due amounts owing, together with attorney’s fees. The trial court rendered judgment terminating alimony for Mrs. Bishop, increasing child support to the sum of $850.00 per month, ordering payment of $450.00 in tuition owed by Mr. Bishop, together with $350.00 attorney’s fees. Mr. Bishop has appealed and Mrs. Bishop has answered the appeal.

The primary issue in Mr. Bishop’s appeal is the amount of the award of child support, which he contends is excessive. He asserts error in the trial judge’s finding “that Mr. Bishop is capable of earning plenty of money beyond the maximum he is talking about” and the judge’s apparent reliance upon the case of Champagne v. Champagne, cited as Gray v. Champagne, 367 So.2d 1309 (La.App. 4th Circuit 1979). We find the principles of the Champagne case to be applicable to this case, and indeed, we find that the record in this case shows more evidence than does the Champagne case that justifies a conclusion that Mr. Bishop is capable of earning more than he contends in argument.

First, we consider the composition of the increased child support. In the divorce judgment the child support was agreed upon by the parties at $300 per month with cost of living increases measured by the consumer price index, together with providing hospitalization and health insurance, the cost of tuition at Sam Barthe School or its equivalent, and all medical and dental expenses not covered by the hospitalization policy. Alimony for Mrs. Bishop was set (relating back to the separation judgment) at $500 per month with similar cost of living increase, cost of insurance premiums on her home and automobile, hospitalization and health insurance and all expenses not covered thereby, and the cost and expenses of maintenance and repairs to the home and automobile. We recite this for two reasons. Primarily, the child support judgment does not constitute simply a raise from $300 on March 10, 1978 to $850 on June 6,1979, but was based in pertinent part on the inclusion of those items in the lump sum rather than as separate items which were causing conflicts over payment between the parties. Secondly, we cite the agreed upon payment for the wife because there is some relevancy under the facts of this case in showing that the spouse had agreed to pay despite a fluctuating income, a sum which Mrs. Bishop computes at $1220 a month and Mr. Bishop had computed at $1,046.87 per month. We point out that this is only a minor consideration in looking at the overall financial picture of these parties.

The basic issue, and one of the controlling issues on this appeal is the income of Mr. Bishop at the time of the trial. We would readily admit that there is sufficient justification for Mr. Bishop’s fluctuation and at times reduction of income because he has changed positions in his law business. At the same time, the record also supports the trial judge’s position that Mr. Bishop is capable of earning more money than he has disclosed. We cite for example Mr. Bishop’s testimony that between the period September 1, 1978 to the last day of April, 1979 on a monthly basis he had been averaging a take-home before taxes of $2,300.32. Depending where one starts for computations, one arrives at different figures. We note for example that his testimony for the period January 1, 1979 forward is as follows:

January, gross fees $9,959, net take home $5,673.84.
February, gross fees $11,437.87, take home $9,426.24.
March, gross $6,826.36, take home $4,220.68.
April, gross $400, net—deficit $1,556.54. May, gross $2,895.90, take home $1,503.79.

During this period it is readily perceived that Mr. Bishop’s net earnings were nearly $4,000 per month. Additionally, there is evidence in the record to show Mr. Bishop received some benefits from a trust arrangement resulting from his prior legal practice, the extent of which we are unable to ascertain. Under these facts, we find ample basis to support the findings of the trial judge. Accordingly, even though we may conclude that his finding of need for the child is perhaps generous, the amount awarded falls within his discretion, and we find no basis to disturb it.

The second issue on Mr. Bishop’s appeal is the award of attorney’s fees in the amount of $350 under R.S. 9:305. Although the judge only found Mr. Bishop in arrears in the amount of $400, the record shows that an additional amount of alimony was owing and past due, but paid prior to trial and that the prior alimony payments had been paid late on nearly every occasion. There is ample justification for the award.

The last issue before the court is that raised by Mrs. Bishop on her answer to the appeal, that the court erred in terminating her alimony because Civil Code Article 160 was unconstitutional. The hearing was just prior to the effective date of the 1979 amendment, and the issue is not seriously pursued on appeal. The case of Lovell v. Lovell, 378 So.2d 418 (La.1979) rendered some time later is determinative of that issue and the judgment is affirmed.

For the reasons above recited, the judgment appealed from is affirmed.

AFFIRMED

SCHOTT, Judge,

dissenting in part:

I respectfully dissent from that part of the majority opinion which affirms the judgment in favor of Mrs. Bishop for $850 per month for the support of a ten year old boy.

Mr. Bishop was admitted to practice as an attorney in 1969. His income tax return for 1978 shows an income from his law practice in the amount of $18,808, and for 1977, $19,271. He testified at the trial in June, 1979, that between January and May, 1979, he had a gross income from his law practice of $31,519, with a net income before taxes of $19,269. I note parenthetically that it does not seem unusual for his professional expenses as a sole practitioner to be approximately 39% of his gross. In any event, his average monthly net income for these five months was $3,854 before taxes.

According to Mr. Bishop, he is paying $160 per month for the support of his child by a previous marriage, he is now married for a third time providing a household for his new wife and her three year old child by a previous marriage and although the father of that child pays $100 per month child support, Mr. Bishop incurs some expenses for this child over and above the $100. It appears to me that $850 for this ten year old child is excessive on the face of these figures considering that allowances must be made for income taxes and social security.

In arriving at the $850 figure the trial judge made the following observation:

“... The court is of the opinion that Mr. Bishop is capable of earning plenty of money beyond the maximum he is talking about. Attorneys make more money than that. Mr. Bishop has always been successful in this business and it is hard for me to believe he is making it on what he is talking about.”

With all deference to and respect for the trial judge, it seems to me that this constitutes speculation on his part. Nothing in this record, or in my own experience, convinces me that Mr. Bishop or any attorney with nine years in the practice is necessarily capable of earning more than he presented to the court. I am not aware that attorneys with his experience generally make more money than he claimed he was making, and there is no evidence in the record to support such a conclusion.

In addition, if Mr. Bishop’s capability of earning more than he presented in his figures was a proper consideration, the same reasoning would require that Mrs. Bishop assume more of the burden of her son’s needs. She testified that she had been operating an antique business for a year and a half and has never made any money on the operation. She obviously has the time and the ability to hold a job in which she could earn a reasonable income.

Gray v. Champagne, 367 So.2d 1309 (La. App. 4th Cir. 1979) is distinguishable. There, the court was not impressed with Dr. Champagne’s testimony on his income because he did not produce his most current tax return, his business records or his C.P.A. Furthermore, he admitted that he could have earned more by the simple expedient of working 5 instead of 4‘A days a week. Finally, there was some evidence that he was earning over $4,000 per month rather than $2,500 as he testified. Based on these facts which are in sharp contrast with the facts of the instant case the court ordered Dr. Champagne to pay $1,200 per month for the support of his three children.

Accordingly, I would reduce the child support award, but I concur with the majority in all other respects.  