Somme v. Sirmon

CHEHARDY, Chief Judge. This is an appeal by Bert Daniel Somme from a judgment dated September 3, 1987, denying his rule to reduce the child support due Francis Sirmon Somme for the support of two minor children bom of their marriage. We affirm the judgment of the trial court. The parties were divorced on February 6, 1974 and custody of their three minor children was given to Francis Somme. Subsequently, Bert Somme was ordered to pay the sum of $120 every two weeks in support of these children. On April 28, 1987, the child support award was changed by consent judgment to $500 per month for the two children still under 18 years of age. Bert Somme filed a motion for a new trial on May 4, 1987. On May 6, 1987, the trial court denied this [259] motion. No other action was taken with respect to the April 28, 1987 judgment. On May 21,1987 Bert Somme filed a rule to reduce child support. The matter was heard on July 29, 1987 and the court rendered judgment dismissing Bert Somme’s rule to reduce on September 3, 1987. Bert Somme appeals the dismissal of his rule to reduce the child support, arguing that the trial court erred in not considering the separate property agreement he has with his second wife in setting child support for children of a prior marriage. When a party seeks a modification of a child support award previously fixed in a consent judgment, that party must prove a change in circumstances of one of the parties between the date of the consent judgment and the date of the rule for modification. Ballanco v. Ballanco, 480 So.2d 1039 (La.App. 5 Cir.1985); Hogan v. Hogan, 465 So.2d 73 (La.App. 5 Cir.1985), writ denied Perez v. Hogan, 468 So.2d 1207 (La.1985). The separate property agreement between Mr. Somme and his second wife was executed on July 25, 1980. It was, therefore, in existence at the time of the consent judgment and on September 3, 1987 when the rule to reduce was denied. Thus it does not constitute a change of circumstance. The trial court has clearly not abused its discretion in denying a reduction in the child support award. Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are to be paid by Bert Daniel Somme. AFFIRMED.