
    Mary A. McDonald, wife of Gerald KIMBLE v. Gerald KIMBLE.
    No. 6522.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 1974.
    Rehearing Denied Jan. 14, 1975.
    
      Nel F. Vezina, Gretna, for plaintiff-appellant.
    Robert L. Lobrano, Belle Chasse, for defendant-appellee.
    Before REDMANN, LEMMON and STOULIG, JJ.
   REDMANN, Judge.

By this appeal a wife seeks increase in pendente lite alimony for herself and support for children aged 10, 12 and 14 years. The husband was ordered to pay monthly $200 alimony and $200 child support to the wife and also $125 tuition to the children’s private school and $139 mortgage note and $21 insurance on an automobile the wife and children use. The wife seeks $631 total cash payments to meet her asserted needs.

The husband had been earning $13,000 a year but received a promotion to a $19,000 salary about two months prior to the separation. (Other income of about $15 a month is disregarded.) The husband and wife and children lived on his income of $13,000 a year — about $900 monthly take-home pay. — but also had free occupancy of a house the wife and children still occupy. The wife’s estimate of her monthly needs at $631 plus the $285 the husband is to spend on schooling and car rings reasonably true. The $916 total is roughly equivalent to the previous take-home pay but also includes a $139 payment on a car the husband describes as “new”. The husband’s description suggests that this car may have been purchased after the husband’s salary was raised. Absent contradictory testimony, it would be error to reject a wife’s testimony that she (for the family) previously spent her husband’s entire $900 take-home pay each month. And, under our circumstances, it would be error to reject the wife’s testimony that, even after the husband left, expenses were nearly the same — say $777 (not counting the new car’s note).

The measure of the wife’s alimony pendente lite under C.C. art. 148 (unlike that of permanent alimony) is “maintenance in the style and under the conditions to which she is accustomed by reason of her husband’s means and position in the community,” Abrams v. Rosenthal, 1923, 153 La. 459, 96 So. 32, 33. However, the measure must be proportioned also to the means of the husband, C.C. art. 148; and his means are often the determining factor in fixing an award at less than the wife’s accustomed needs.

The problem that ordinarily arises upon separation is that the husband needs some minimum for his separate food and shelter. Thus ordinarily the wife (and children) share in the effective loss of income resulting from maintaining two households on the income which previously supported only one.

However, the fortuitous $6,000 raise to the husband should relieve the wife from the belt-tightening, just as it relieves the husband. A wife being paid a proper alimony based on her needs is not entitled to an increase because her (ex-) husband has become more wealthy. But that is not this wife’s request. She asks only for her needs, equivalent to the normal lifestyle she previously enjoyed with the husband. In the ordinary case, we would affirm an award of less than her accustomed needs like that appealed from, because of the husband’s means’ being reduced by his own new needs — but this husband’s $6,000 raise makes that unnecessary. (Although he asserts his $500 a month raise results in only a $200 take-home increase, he does not explain why.)

The wife’s request for attorney’s fees is not determinable by summary proceeding prior to the attorney's services being completed. The trial judge can better evaluate the services as a whole at the time of judgment on the separation petition by ordinary process.

The judgment is amended to increase the cash alimony from $200 to $400 effective immediately and is otherwise affirmed.

STOULIG, J., dissents.

STOULIG, Judge

(dissenting).

I respectfully dissent.

The majority opinion awards support of more than 80 percent of the husband’s proven net income. It speculatively assumes that the husband has a greater monthly income than the evidence reflects and based upon this assumption concludes, in effect, that the trial judge has abused his discretion. In my opinion the evidence bearing upon the needs of the wife and children and the husband’s ability to respond amply sustains the reasonableness of the alimony and child support awards of the trial judge. I find no basis for adjudging this judgment as an abuse of discretion.

There exists no precise method for computing alimony and child support, the amount of which falls within the discretionary determination of the trial judge based upon the needs of support and the ability to respond. Only when the trial court’s award is so unreasonable or inequitable as to constitute an abuse of discretion will his judgment be disturbed on appeal.

The uncontroverted evidence reveals that Mr. Kimble has a net take-home pay of $1,113.59 per month. The amount of his net monthly income was readily obtainable by Mrs. Kimble since his salary as comptroller for the Parish of Plaquemines is a public record. Having failed to controvert appellee’s testimony as to his net earnings, it must be concluded that the appellant either concurred in the accuracy of this testimony or was unable to obtain any contradictory evidence to refute it. Therefore the only evidence before the court is the undisputed testimony of Mr. Kimble as to his net monthly earnings.

What were the obligations of the husband under the judgment of the trial court? Alimony, $200; child support, $200; monthly mortgage on wife’s car, $139; insurance on wife’s car, $21.38 per month; tuition for the children's schooling (which will be significantly increased), $125 per month. Total obligations, direct and indirect, $685.38 per month. This award is more than 60 percent of the husband’s net monthly income.

What did the wife seek? Direct support of $631 for herself and children, plus $285.38 for her automobile and the children’s tuition — a total of $916.38 out of the established net monthly income of the husband of $1,128.93. It is interesting to note the wife is living rent free in a house owned by her husband’s grandmother.

Under the majority opinion, the husband is condemned to pay 80 percent of all of his net income for the upkeep of his wife and children. It justifies this award by reasoning that the family expenses amounted to $900 per month when the parties were living together and the husband was earning a gross annual salary of $13,000 with a net take-home pay of $900 per month and therefore since his annual salary has been increased to $19,000 per year and the family expenses have not been reduced or altered, that the husband should be able to financially sustain himself out of his increase in salary.

This reasoning overlooks two facts: (1) that though the salary of the husband was increased by $500 per month, his net take-home pay only increased $213 monthly; and (2) that the trial judge had information of this increase when he rendered his judgment of support.

In the absence of any evidence to the contrary, this court is bound by the undisputed evidence that the total monthly income of Mr. Kimble from all sources amounts to $1,128.93 and any modification of the trial court’s judgment based upon income in excess of this amount is going beyond the record.

I do not quarrel with the law cited in the majority opinion or that portion preter-mitting the appellant’s request for attorney’s fees pending the final determination of the separation proceeding.

For the foregoing reasons, I respectfully dissent. I find no abuse of discretion by the trial judge which would warrant - a modification of his judgment. 
      
      . Defendant testified to a monthly net salary of $1,113.59, an annual profit of $134 from the sale of oranges, and an annual $50 rental receipt for leasing a duck pond. Averaged out, the rent and orange sale profit yields an additional $15.34 monthly.
     