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Launey v. Launey12/9/1998
LAUNEY v. LAUNEY, 98-849 (La.App. 3 Cir. 12/9/98)
Byron Levy Launey appeals the judgment of the trial court awarding $250.00 per month permanent periodic alimony to Dorothy Fadaol Launey. For the following reasons, we reverse the trial court's decision.
FACTS AND PROCEDURAL HISTORY
Byron Levy Launey and Dorothy Fadaol Launey were married on January 16, 1960. One child, Byron Levy Launey, Jr., was born of the marriage. The parties separated on October 29, 1989, and on February 15, 1991, Byron filed suit for divorce, alleging that the parties had lived separate and apart for more than one year. Thirty-one years after their marriage, a judgment of divorce was rendered, reserving for Dorothy the right to seek alimony in the future. Their son was twenty-one years old at that time.
On November 14, 1997, Dorothy filed a Petition for Post Divorce Alimony. After a trial on the matter, the trial court held that Dorothy was free from fault, in need, and that Byron must pay her $250.00 per month.
Byron Launey now appeals the judgment of the trial court.
DISCUSSION
La.Civ.Code art. 112 allows for an award of permanent periodic alimony to a spouse who "has not been at fault and has not sufficient means for support". The trial court's judgment that Dorothy Launey was free from fault has not been challenged on appeal, thus we will begin our Discussion with whether she is in "necessitous circumstances" as contemplated by the Civil Code and interpretive jurisprudence. See Preis v. Preis, 93-569 (La.App. 3 Cir. 2/2/94); 631 So.2d 1349.
Post-divorce alimony is in nature of a pension meant to cover the basic necessities of life. La.Civ.Code art. 112; January v. January, 94-882 (La.App. 3 Cir. 2/1/95); 649 So.2d 1133. In determining the entitlement to alimony after divorce, the court shall consider a number of enumerated factors including:
"Ä the income, means, and assets of the spouses;"
"Ä the liquidity of such assets;"
"Ä the financial obligations of the spouses, including their earning capacity;"
"Ä the effect of custody of children of the marriage upon the spouse's earning capacity;"
"Ä the time necessary for the recipient to acquire appropriate education, training, or employment;"
"Ä the health and age of the parties and their obligations to support or care of dependent children; and"
"Ä any other circumstances that the court deems relevant." La.Civ.Code art. 112. The question as to whether a party is entitled to permanent alimony is a factual one which is subject to the manifest error standard of review. See Veron v. Veron, 94-1351, 94-1352 (La.App. 3 Cir. 9/12/96); 688 So.2d 1076; Rochon v. Rochon, 97-294 (La.App. 3 Cir. 10/8/97); 702 So.2d 899.
The spouse who demonstrates a need for permanent alimony is only entitled to an amount sufficient to provide for his or her maintenance. Ward v. Ward, 339 So.2d 839 (La. 1976). "Maintenance includes food, clothing, shelter, reasonable and necessary transportation expenses, utility expenses, medical and drug expenses, household expenses, professional dues, home and health insurance policies, telephone expenses, personal items, and income tax liability generated by the alimony payments." Widman v. Widman, 93-613 (La.App. 3 Cir. 2/2/94); 631 So.2d 689, 691 citing Vernotzy v. Vernotzy, 591 So.2d 1293 (La.App. 3 Cir. 1991).
In order to determine a spouse's entitlement to alimony, the court must first determine whether she has sufficient means for her support, and if she does not, a principal factor considered in determining whether alimony is properly p
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