Prestenback v. Prestenback

2008-0457 ( La. App. 1 Cir 11/18/08)



In the context of an award of spousal support, "means" include both income and property. In deciding entitlement and amount of alimony, the court should consider, among other things: the income, means and assets of the spouses; the financial obligations of the spouses, including their earning capacities; the time necessary for the recipient to acquire appropriate education, training or employment; and the health and age of the parties. Although "means" include both income and property, courts usually determine initially the monthly income to be attributed to the claimant spouse and compare this sum to the spouses monthly expenses. If the income equals, or is greater than the expenses, then no further inquiry should be necessary. However, if the expenses exceed the income, the court will need to decide to what extent the spouse should be made to deplete the property before being entitled to alimony.


Appellant former wife argued, inter alia, that the district court erred in considering as "income" the social security disability benefits that she received. Because of this, appellee former husband's support obligation was reduced. On appeal, the court disagreed. The judgment was amended to order the husband to pay final periodic spousal support to the wife in the amount of $ 992 per month. The case was remanded for a determination of whether any arrearage was owed. The judgment was otherwise affirmed.



Did the trial court err in considering social security benefits as income for purposes of computing spousal support?




Clearly social security benefits and social security disability benefits were funds a recipient could use to defray living expenses and other debts, and thus fell within the generally accepted legal meaning of "income and means." No Louisiana legislative enactment suggested an intent to restrict or curtail the generally accepted meaning of "income and means." Income encompassed both forms of social security. Therefore, the correct legal interpretation of La. Civ. Code Ann. arts. 111 and 112 was such that the terms "income and means" encompassed the wife's social security benefits, whether received as old-age insurance benefits or disability insurance benefits. Social security benefits were income for purposes of computing spousal support. "Income and means" encompassed social security disability benefits as well. Therefore, the district court did not err.

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