Vollenweider v. Brescher
Also decided on this docket: La. Ct. App. 1st Cir., May 31, 1971 249 So. 2d 295; La. Ct. App. 1st Cir., June 20, 1955 81 So. 2d 152; La., May 15, 1884 36 La. Ann. 760; La. Ct. App. 3d Cir., October 7, 1981 405 So. 2d 604
Vollenweider v. Brescher, 344 So. 2d 1182 (La. Ct. App. 1st Cir. 1977).
The holding in the court’s own words
160’s limitation of alimony to a third of the husband’s income implies an analogous limitation to a third of the spouses’ combined income is not discussed because we conclude that the wife’s needs were not shown to exceed her own income.
Quoted verbatim from the opinion — no paraphrase, nothing generated. Not yet human-reviewed. How we find the holding.
Authorities cited
Identified automatically; this list may not be exhaustive.
- Ward v. Ward 339 So. 2d 839
Opinion text
REDMANN, Judge. An ex-wife appeals from a judgment which refused her permanent alimony on the basis of lack of need, despite her uncorroborated testimony that she was usually unable to work a full 40-hour week because she had not fully recuperated from intestinal by-pass surgery for obesity. The trial judge ruled “that the Plaintiff’s recent major surgery was of a cosmetic nature and therefore should not be a consideration in her request for alimony.” That reasoning is inconsistent with Ward v. Ward, La.1976, 339 So.2d 839 , which holds that a wife’s earning capacity is not a factor in fixing alimony. If an ex-wife’s total non-use of her ability to work is immaterial to her entitlement to alimony, so is her partial non-use of her ability to work. If an ex-wife is free to not work at all and still collect alimony she is free to work less than 40 hours a week irrespective of her motive for doing so. We nevertheless affirm because the factual evidence does not otherwise support an award. The ex-wife’s 40-hour week pay is $116, or over $464 monthly gross; the ex-husband’s monthly gross is $875. 1 The ex-wife’s payroll taxes are not shown, but she nets $360 monthly even after insurance premiums. The ex-wife’s testimony that her health makes her miss a day or more in about three weeks out of four does not establish that she lacks the approximately $350 a month shown to be the cost of her necessaries. Affirmed. . The ex-wife thus would earn over a third of the ex-spouses’ combined income. Whether C.C. 160’s limitation of alimony to a third of the husband’s income implies an analogous limitation to a third of the spouses’ combined income is not discussed because we conclude that the wife’s needs were not shown to exceed her own income.