
    Shirley KLEB, Plaintiff-Appellee, v. William Roy CHOATE, Defendant-Appellant.
    No. 1900.
    Court of Appeal of Louisiana. Third Circuit.
    Jan. 11, 1967.
    Rehearing Denied Feb. 1, 1967.
    Writ Refused March 10, 1967.
    Armentor & Resweber, by Minos H. Armentor, New Iberia, for defendant-appellant.
    Marion W. Groner, New Iberia, for plaintiff-appellee.
    Before FRUGÉ, SAVOY and CULPEP-PER, JJ.
   SAVOY, Judge.

This is a suit for separation by the wife against the husband because of cruel treatment. The wife also prayed for alimony for herself and two minor daughters.

After a trial on the merits the district judge granted plaintiff a separation as prayed for and awarded her alimony for herself and her minor children in the sum of $700.00 per month. Defendant has appealed to this Court.

The only matter in dispute in this Court is the alimony award. Defendant contends it is excessive and should be reduced.

The record reveals that in 1965 the husband earned approximately $24,000.00 per year. The parties owned a nice home, which was mortgaged, and were driving an expensive car, namely a Cadillac. Beginning in January of 1966, defendant’s earnings dropped to approximately $1,400.00 per month before withholding of State and Federal Income Tax and social security payment. It appears from the record that the company for which he worked was taken over by someone else, and he had to secure other employment at the reduced salary.

In her petition plaintiff attached a statement designated as “Monthly Expenses”. Included in this statement were $50.00 per month for contribution to her church, and $100.00 per month for medical expenses. We do not find anything in the record which would support these two items.

While we are reluctant to disturb the award of the trial judge, since the defendant has a net income of approximately $1,100.00 per month, we are of the opinion that the award is excessive and should be reduced to the sum of $550.00 per month. This sum, in our opinion, is more realistic when considered with his net monthly income.

For the written reasons assigned, the judgment of the district court is amended by reducing the monthly alimony due by defendant to plaintiff for herself and her minor children from the sum of $700.00 per month to the sum of $550.00 per month, and as amended, the judgment is affirmed.

Appellant to pay costs incurred in this Court.

Amended and affirmed.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge

(dissenting).

Great discretion is vested in the trial judge as to the amount of alimony pendente lite. His award should not be disturbed on appeal unless the record shows clearly that he has improperly exercised this discretion. Rader v. Rader, La.App., 126 So.2d 189; Russ v. Russ, La.App., 126 So.2d 854; Turner v. Agnello, La.App., 174 So.2d 227.

Despite this established rule of appellate review, the majority has reduced from $700 to $550 per month the alimony awarded for the support of Mrs. Choate and her two teen-age daughters. I cannot agree that this is justified by the record.

Our law allows the wife alimony during the pendency of separation or divorce proceedings in an amount sufficient to support her in a style comparable to that enjoyed before the separation; and proportioned to her needs and the means of her husband. LSA-C.C. Article 148; Scott v. Scott, La.App., 174 So.2d 193; Small v. Small, La.App., 173 So.2d 854.

In the present case the husband works as a tool-pusher for an offshore drilling concern. His monthly salary averages about $1,452, from which deductions for Social Security, Federal and State Income Tax and insurance total $330.47, leaving a net take-home salary of $1,121.53 per month.

The wife has itemized her expenses for the support of herself and the two children as follows:

House payment (mortgage note) $168.00
Cleco (Utilities) 60.00
Telephone 13.00
Mr. Carmel (tuition for school) 20.00
Insurance 25.00
Car — payment note -0-
Auto Expenses 55.00
Food 225.00
Cleaners 20.00
Clothes 65.00
Yard 15.00
Club dues 20.00
Church 50.00
Garbage Man & Paper Man 4.00
Doctor and Medicine 100.00
Gifts, Cosmetics, Beauty Shop 20.00
TOTAL $860.00

As stated above, the trial judge awarded the wife $700 per month in alimony. He did not allow the full amount sought by Mrs. Choate, as the majority implies. Even excluding the $50 for the church and $100 for medical expense, which the majority questions, the remaining items, as reduced by the trial judge, are certainly not out of proportion to the manner of living before the separation.

Allowing the wife $700 per month out of the husband’s net take-home salary, would leave him $421.53 for his living expense.

There are several very good reasons why the trial judge could reasonably have awarded $700 for the maintenance of the mother and two children, leaving $421 per month for the father’s living expense.

First of all, I note particularly that the father lives approximately one-half of each month on offshore drilling rigs where all of his living expenses are furnished by his employer. The value of these furnished living expenses could reasonably be considered as additional salary enjoyed by defendant, which would mean that as a practical matter defendant’s share of the communty income will exceed $421 per month.

Next, I note that the defendant father has introduced no itemized list of his living expenses. The record is devoid of any evidence to show his monthly expense for food, lodging, clothing, etc. The record doesn’t even show that he has any automobile expense and it is possible that his employer furnishes this. Certainly the defendant had the burden of proving these amounts. The trial judge could reasonably have concluded that since Mr. Choate did not attempt to show-his living expenses, they were small.

There is another noteworthy factor. Of the $700 awarded to the wife each month, the sum of $168 represents the monthly payment on the mortgage on the house. This is the same house occupied before the separation. If we exclude the house payment, it leaves the wife only $532 for the maintenance of herself and the two teenage girls. If we were to add the amount of the house payment to the husband’s remaining share of his take-home pay, he would have $589 per month.

For the reasons stated, I disagree with the majority’s conclusion that the trial judge has abused his discretion. No such abuse is shown by this record.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE, J., dissents from denial of rehearing and assigns written reasons.

CULPEPPER, J., dissents from the denial of a rehearing.

TATE, Judge

(dissenting from denial).

The majority of this court, without hearing a single witness and based on no evidence in the record, has reduced the trial court’s allowance of alimony to a mother and two children from $700 to $550. The husband had an income of $24,000 in 1965-, but produced proof that his income had dropped to $1,452 per month at the time of trial. However, the husband produced no proof as to his own living expenses, and the record shows that a considerable proportion of these expenses are paid for by his employer in addition to the monthly salary of $1,452.

In my opinion, the majority has arbitrarily disturbed the discretion of the trial court without any reason supported by the record. The husband is in a better position through applying to blind appellate sympathy than he would be had he produced any evidence to show that actually the amount of alimony pendente lite awarded to his wife and children was excessive.

We should point out that from the wife’s award of $700 per month she was supposed to pay a mortgage note of $168, which is really an expense of the community of which the husband is head and master. One-half of these amounts so paid will be the property of the husband when and if the community assets are liquidated.

Also, the wife produced proof of monthly expenses of $860. The trial court reduced the award for those expenses to $700, and we are further reducing that award an additional $150, although there is absolutely no proof that the wife does not need $860 for her family’s living expenses or that the amount of temporary alimony assessed the husband is excessive, except for an emotional plea on his part.

I see no reason under the record presented to us to disturb the trial court’s great discretion in according alimony according to the circumstances. According to the record, the amount of $700 awarded the wife is really insufficient for her purposes. On the other hand, since the husband’s employer pays much of his living expenses, the amount left to him does not seem insufficient. The majority is leaving the husband $550 even though most of his living expenses are paid by his employer. The other $550 is left for the support of the other three members of the family, including the payment for the mortgage debt owed by the husband as head of the community.

The writer must therefore join his brother CULPEPPER in his dissent from the arbitrary substitution by the majority of its views for the soundly exercised discretion of the trial court. In so saying, I recognize the sincerity of the majority in attempting to force a reconciliation of the parties by depriving the wife of sufficient means for her sustenance. The record does reflect that both husband and wife are fine people, happily married until a recent altercation; the temporary uphappy rift of a happy marriage, with children, is indeed unfortunate. Nevertheless, it is not an appropriate appellate function for us to try, long range and not familiar with the parties (as is the trial court), to effect reconciliation by starvation.

I therefore respectfully dissent from the denial of a rehearing.  