
    Mrs. Blanche E. EVERETT v. James Floyd EVERETT.
    No. 10728.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Oct. 20, 1976.
    
      C. Alvin Tyler, Baton Rouge, for appellant.
    Walton J. Barnes, Baton Rouge, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Plaintiff Blanche E. Everett was granted a separation from defendant James Floyd Everett on February 8, 1951, at which time plaintiff was awarded $100.00 per month as alimony and child support. On March 22, 1957, child support payments were discontinued, and Mr. Everett was ordered to pay $50.00 per month in alimony to plaintiff. On August 19, 1971, defendant moved to have the alimony payments discontinued on the ground that he had been forced to retire due to ill health, and that plaintiff was in good health and gainfully employed. Plaintiff reconvened for an increase. On January 28, 1972, judgment was signed refusing both the main and reconventional demands, and continuing in effect the alimony of $50.00 per month.

On May 8, 1975, Mr. Everett once again filed a rule to discontinue the alimony, alleging that the surgical removal of his right lung because of lung cancer prevented him from maintaining the employment necessary in order for him to comply with the alimony judgment. He further alleged that Mrs. Everett is no longer in necessitous circumstances because she earns $425.00 per month, and owns immovable property valued at over $20,000.-00.

On October 21, 1975, the trial court rendered judgment recalling and dismissing defendant’s rule, from which judgment defendant has appealed.

The trial judge’s reasons for judgment are as follows:

“James Floyd Everett filed this rule to terminate permanent alimony in the amount of $50.00 a month which has been awarded to his former wife in a judgment read and signed on March 22, 1957. In 1971, Mr. Everett filed a similar rule, and on January 28, 1972, judgment was read and signed ordering him to continue paying the sum previously fixed.
“Mrs. Everett owns a modest unencumbered home on a three and one-half acre tract where she has resided for approximately thirty years. She is employed at Our Lady of the Lake hospital with a net pay every two weeks of $165.96. She also has liquid assets in the form of savings and checking accounts amounting to approximately $2,500.00.
“Mr. Everett is retired, but has an income of approximately $730.00 a month from Social Security, retirement benefits and other sources. His present wife is employed, earning a gross salary of $650.00 a month. They own their home, which is subject to a mortgage, and have other assets.
“In 1971, when Mr. Everett previously attempted to terminate the payments, his income was $579.00 a month, and his present wife was earning $515.00 a month. Mr. Everett contends that there has been a change in circumstances in that he is now in ill health. However, the record reveals that most, if not all, of his medical expenses are covered by insurance.
“It is incumbent upon Mr. Everett to prove a change in his circumstances or in the former Mrs. Everett’s to an extent that termination of the alimony payments is warranted. Bernhardt v. Bernhardt, La., 283 So.2d 226; O’Brien v. O’Brien [La.App.], 308 So.2d 333. After considering all of the evidence this Court concludes that there was no substantial evidence relative to change in the financial circumstances of either party of a nature to justify termination of the nominal alimony award previously made.
“Mr. Everett further contends that his former wife should be compelled to completely exhaust her liquid assets, relying upon Webster v. Webster [La.App.], 308 So.2d 302. However, this Court is of the opinion that this case is more analogous to Bryant v. Bryant [La.App.], 310 So.2d 648, and that since this is the later case from the same Court of Appeal, it should control.
“Accordingly, judgment is rendered and will be signed recalling, vacating and setting aside the rule nisi issued herein.”

We would also point out that Mrs. Everett testified that she needed $409.97 for her maintenance. Her net salary, plus the $50.00 per month alimony, plus reasonable interest on her savings still falls short of that amount. We do not believe that she should be forced to deplete her modest estate, when to do so would only increase the burden on her husband in the near future. We find that Mrs. Everett does not have sufficient means for her support, and is in necessitous circumstances within the meaning of Article 160 of the Civil Code.

The judgment appealed from is therefore affirmed, at Mr. Everett’s cost.

AFFIRMED.

BLANCHE, Judge

(dissenting).

It is ludicrous to call the $50 which the first Mrs. Everett receives from her ex-husband “alimony.” It is more appropriate to call it a “tribute” which she has exacted from him through judicial edict since March 22, 1957.

MRS. EVERETT’S CIRCUMSTANCES

Mrs. Everett is employed at Our Lady of the Lake Hospital and her take-home pay is $331.92 per month. She has two savings accounts, one in the Louisiana National Bank with a balance of $231.13 and in which she regularly deposits $5 per month, and another at the Capital Building and Loan Association with a balance of $2,545.18, in which she usually deposits $25 per month. (See copy of entries made in savings account books filed in evidence.)

Additionally, she received in the community property settlement which took place approximately thirty years ago the home place. She has given two lots from this property, of approximately one acre each, to her two children and has approximately 3.284 acres left on which is located the debt-free home. The land was valued by Chester A. Driggers, an expert real estate appraiser well known to our courts, at $5,000 per acre. Mr. Driggers was unable to appraise the house because Mrs. Everett would not allow him inside to inspect its condition. To explain this conduct, her lawyer stated that Mrs. Everett had elected “not to let a strange man in her house.” The trial judge said that her property was probably worth between $14,000 to $17,000, and simple arithmetic indicates it would be worth at least $10,000 more had she not given two lots away. Mrs. Everett also owns an automobile.

The foregoing circumstances were considered by my colleagues and the trial judge as not sufficient for her maintenance and as being alleviated by a $50 per month alimony payment.

MR. EVERETT’S CIRCUMSTANCES

In my view the first Mrs. Everett’s circumstances are so far from necessitous that the circumstances of Mr. Everett are irrelevant. However, for the record, Mr. Everett was found to have a bronchogenic carcinoma of the right lung and consequently, a right pneumonectomy was performed by Dr. Charles A. Beskin in March of 1975. Follow-up x-rays show compensatory emphysema of the left lung. Mr. Everett had to borrow $500 to pay the remainder of his doctor and hospital bills. He also claimed to be spitting up blood at the time of trial and to need further medical care, and it is undisputed that he is unable to work.

Mr. Everett’s income consists of the following: retirement income from Standard Oil in the sum of $208 per month; Social Security, $211 per month for himself and $311 per month for his three children of the second marriage. His wife works and has take-home pay of $480 per month, and as a matter of law, these earnings fall into the community, so, therefore, Mr. Everett can claim $240 per month of these earnings toward the totality of his financial circumstances: I do not believe it can be argued that the Social Security benefits received by his children should be counted toward his circumstances.

Mr. Everett had to move from his former residence on Seneca Street and is now residing in a $34,000 house on which there is a $24,000 mortgage, with payments of $260 per month.

An analysis of the present living expenses of Mr. Everett reveals that he has every bit as much difficulty making ends meet as does Mrs. Everett, and if she is in necessitous circumstances, so is he.

THE ERROR

I believe the law considers alimony paid to the wife under the provisions of LSA-C.C. Art. 160 as a pension, and it is only payable when she is without “sufficient means” for her maintenance. “Maintenance” has been defined previously as food, shelter and clothing. It is not to be confused with alimony paid under the provisions of LSA-C.C. Art. 148, which has reference to “sufficient income” of the wife, payable in proportion to her needs and to the means of her husband.

The proof that Mrs. Everett is able to save on her salary, though laudable, is also proof that she does not require $50 per month from Mr. Everett for her maintenance. We committed grievous error by not taking Mrs. Everett “off of his back” under the foregoing circumstances of her means and his poor health in the later years of his life.

Finally, it is called to my attention that while I was not the author of Bryant v. Bryant, 310 So.2d 648 (La.App. 1st Cir. 1975), I did concur with my colleagues in that opinion where the wife had an interest in property valued at more than $15,-000. I reaffirm my concurrence in that opinion because a lack of liquidity of the wife’s means in that case contributed nothing toward her maintenance except shelter.

For the above reasons, I respectfully dissent.  