Opinion
2018 CU 1222
03-20-2019
NICOLE T. KEITH v. WILLIAM NED KEITH, JR.
Pegram J. Mire, Jr. Gonzales, Louisiana Attorney for Plaintiff/Appellee Nicole T. Keith Toni Menard Assistant District Attorney Donaldsonville, Louisiana Attorney for Plaintiff/Appellee The Louisiana Department of Child and Family Services on behalf of the Minor Children Vincent J. Sotile, Jr. Prairieville, Louisiana Attorney for Defendant/Appellant William Ned Keith, Jr.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana
No. 117,781, Div. "D" The Honorable Jessie M. LeBlanc, Judge Presiding Pegram J. Mire, Jr.
Gonzales, Louisiana Attorney for Plaintiff/Appellee
Nicole T. Keith Toni Menard
Assistant District Attorney
Donaldsonville, Louisiana Attorney for Plaintiff/Appellee
The Louisiana Department of Child
and Family Services on behalf of the
Minor Children Vincent J. Sotile, Jr.
Prairieville, Louisiana Attorney for Defendant/Appellant
William Ned Keith, Jr. BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Defendant, William Ned Keith, Jr., appeals a trial court judgment ordering him to pay Nicole T. Keith final periodic spousal support and child support. For the following reasons, we affirm the judgment in part and reverse the judgment in part.
FACTS AND PROCEDURAL BACKGROUND
Mr. and Ms. Keith were married in May of 2004. Three children were born of the marriage, G.K. (born on May 23, 2005), E.K. (born on July 1, 2008), and L.K. (born on June 4, 2011). The parties physically separated on May 26, 2016, and on January 3, 2017, Ms. Keith filed a petition seeking a divorce. She also sought joint custody with herself named as the domiciliary parent, spousal and child support, and use of the family home. Mr. Keith answered and filed a reconventional demand basically seeking the same relief.
Although we are not required to use initials to protect and maintain the privacy of the minor children involved in child custody cases pursuant to Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2, we choose to use the initials of the minor children in this opinion. See Jupiter v. Jupiter, 2014-0395 (La. App. 1 Cir. 9/24/2014), 154 So.3d 1241, 1241 n.1, writ denied, 2014-2301 (La. 1/23/15), 159 So.3d 1058; Rodock v. Pommier, 2016-809 (La. App. 3 Cir. 2/1/17), 225 So.3d 512, 515 n.1, writ denied, 2017-0631 (La. 5/1/2017), 221 So.3d 70.
On May 9, 2017, based upon the parties' stipulations, the trial court signed a judgment awarding the parties joint custody, designating Ms. Keith as the domiciliary parent, and awarding Mr. Keith visitation. The court ordered Mr. Keith to pay child support of $3,000.00 monthly, retroactive to January 3, 2017, with credit for payments made. The parties were to submit to a custodial evaluation, and a ruling on spousal support was deferred. Ms. Keith was granted exclusive use of the family home.
On September 25, 2017, Mr. Keith filed a rule to set all remaining matters for hearing, and a hearing was held on March 2, 2018. The trial court ruled at the end of the hearing and signed a judgment on March 22, 2018. The judgment states that the parties stipulated that they would share joint custody with Ms. Keith designated as the domiciliary parent. The judgment ordered Mr. Keith to pay child support beginning March 2, 2018, of $2,698.00 monthly and spousal support of $300.00 monthly, retroactive to January 3, 2017. Mr. Keith filed a motion for new trial, contending that the support awards were contrary to the law and evidence. The trial court denied the motion, and Mr. Keith appealed.
A judgment of divorce was signed on October 4, 2017.
The trial court also awarded Ms. Keith the use of the family home, and the issue of rental value reimbursement was reserved for the trial on the property partition.
On June 8, 2018, the State of Louisiana, Department of Children and Family Services (D.C.F.S.), filed a rule to show cause for child support arrears, alleging that Mr. Keith owed child support of $21,096.00 and spousal support of $4,800.00, representing the time period beginning January 2017, and ending on April 16, 2018. D.C.F.S. also filed a motion to amend the March 22, 2018 judgment to order Mr. Keith to make all child and spousal support payments to D.C.F.S. The judgment pertaining to the amendment of the earlier judgment was signed on June 12, 2018, without a hearing pursuant to former La. R.S. 46:236.2(C), and was effectuated whenever Mr. Keith became delinquent in the payment of his support in an amount equal to at least one month's support obligation.
On appeal, Mr. Keith asserts three assignments of error. In his first assignment of error, he contends that the trial court erred in failing to follow the child support guidelines set forth in La. R.S. 9:315-315.47, specifically La. R.S. 9:315(C)(3)(d)(iii), which governs seasonal work, because it included "temporary, extraordinary increases of income" attributable to Mr. Keith from his business following the Great Flood of 2016. In Mr. Keith's second assignment of error, he contends that the trial court erred in failing to make the child support award retroactive to the date of judicial demand by Ms. Keith or to the date Mr. Keith filed his motion to set all issues for trial. Lastly, in his third assignment of error, Mr. Keith contends that the trial court erred in awarding Ms. Keith spousal support because he asserts an award was not supported by the evidence.
DISCUSSION
Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Lambert v. Lambert, 2006-2399 (La. App. 1 Cir. 3/23/07), 960 So.2d 921, 924. Furthermore, a trial court's conclusions of fact regarding financial matters underlying an award of child support will not be disturbed in the absence of manifest error. Romanowski v. Romanowski, 2003-0124 (La. App. 1 Cir. 2/23/04), 873 So.2d 656, 662. The manifest error standard of review is based, in part, on the trial court's ability to better evaluate the testimony of live witnesses, compared with an appellate court's sole reliance upon a written record. Freeman v. Freeman, 2016-0580 (La. App. 1 Cir. 4/12/17), 218 So.3d 653, 659. When presented with two permissible views of the evidence, the trier of fact's choice between them cannot be manifestly erroneous. Id. at 659-60. The trial court has wide discretion in determining the credibility of witnesses and its factual determination will not be disturbed on appeal absent a showing of manifest error. Aguillard v. Aguillard, 2008-1131 (La. App. 1 Cir. 12/23/08), 9 So.3d 183, 187. Regarding questions of law, the appellate court gives no special weight to the findings of the trial court, but instead reviews those issues under the de novo standard. Wooley v. Lucksinger, 2006-1140 (La. App. 1 Cir. 12/30/08), 14 So.3d 311, 353, rev'd in part on other grounds, 2009-0571 (La. 4/1/11), 61 So.3d 507.
CHILD SUPPORT
In his first assignment of error, Mr. Keith contends that the trial court erred in basing its gross income calculation for child support on his business's 2017 income because it was temporarily inflated due to the surge in furniture deliveries caused by the Great Flood of 2016. According to the judgment, the trial court calculated the child support using Worksheet A with monthly gross income figures of $6,850.00 for Ms. Keith and $14,000.00 for Mr. Keith, $545.00 for net child care costs, and $145.28 for health insurance premiums for the children. Mr. Keith analogizes the higher income allegedly due to the flood to extraordinary overtime that should not be considered as part of his gross income because the inclusion would be inequitable to him pursuant to La. R.S. 9:315(C)(3)(d)(iii). Mr. Keith relies on State, Dept. of Social Services ex rel. A.D. v. Gloster, 2010-1091 (La. App. 5 Cir. 6/29/11), 71 So.3d 1100, 1103-04, wherein the Fifth Circuit affirmed the trial court's orders for child support payments from the father that included his overtime pay for four months, then set a lower child support amount when his income was reduced because the overtime hours decreased as open positions were filled. The Fifth Circuit found that the overtime was not extraordinary, and therefore, was properly included in the income calculation for the period of time it was earned.
In brief, Mr. Keith states that in calculating Mr. Keith's income, the trial court appeared to use the gross income figures of his business as opposed to considering the business expenses and the income Mr. Keith earned from the business. However, he does not further elaborate upon this contention, instead mainly arguing that the trial court erred in considering income allegedly inflated by increased furniture sales due to the flood.
While Mr. Keith in his brief also relies on State, Dept. of Soc. Ser., ex rel. S. McC. v. J. A. McC., 2003-108 (La. App. 5 Cir. 5/28/03), 848 So.2d 121, 125, that case did not deal with extraordinary overtime under La. R.S. 9:315(C)(3)(d)(iii), but instead involved voluntary unemployment pursuant to La. R.S. 9:315(C)(5).
The Louisiana child support guidelines set forth the method for implementation of the parental obligation to pay child support. See La. R.S. 9:315.1(A). To apply the guidelines, the court must initially determine the gross income of the parties. See La. R.S. 9:315.2(A). Income means the actual gross income of a party, if the party is employed to full capacity. La. R.S. 9:315(C)(5)(a). Gross income, defined in La. R.S. 9:315(C)(3), includes income from any source, but does not include: "Extraordinary overtime including but not limited to income attributed to seasonal work regardless of its percentage of gross income when, in the court's discretion, the inclusion thereof would be inequitable to a party." La. R.S. 9:315(C)(3)(d)(iii).
At the hearing, Mr. Keith testified that he operated his own business, Ned Keith Carriers, Inc., a home delivery service for furniture, and he worked strictly for Olinde's Furniture ("Olinde's"). Mr. Keith stated that he operated two trucks and employed two drivers and two helpers; he also drove and helped. According to Mr. Keith, his work increased due to the flood but had returned to "preflood numbers" or less at the time of the hearing.
Ryan Hebert, the operations warehouse manager for Olinde's, testified that he assigned the deliveries to the trucks and tried to distribute the work equally between Mr. Keith's company and another carrier Olinde's used. When asked about Olinde's business during the past five years, Mr. Hebert stated:
[F]rom 2014 to 2015 to the beginning of 2016, deliveries were pretty constant. We delivered two to three trucks a day out of Olinde's, except for Mondays, Wednesdays, and Sundays. After the flood, starting in August, 2016, we started delivering six days a week, and business boomed. I mean, we had to take in 18-wheelers in the ... parking lot to carry more furniture. We ... started a second shift. We asked them to run more, longer hours, fill the trucks more. So ... after the flood, the ... business definitely increased.
When asked if business had continued to increase, Mr. Hebert replied, "No, sir ... we've dropped way off. We're ... back to delivering Tuesdays, Thursdays, Friday, and Saturday, so ... we've taken a couple days off. We're back down to delivering two trucks a day, and it looks like it's getting worse." According to Mr. Hebert, Mr. Keith's business was receiving less deliveries from Olinde's at the time of the hearing than it was receiving in July of 2016.
When questioned by counsel for Ms. Keith, Mr. Hebert responded that he was basing his testimony on his experience, not on accounting figures. However, Mr. Hebert also testified that, based on closed sales records he had reviewed, Mr. Keith's business was paid $243,992.97 in 2014, $276,851.04 in 2015, $275,144.71 in 2016, $405,733.38 in 2017, and $31,897.00 in 2018 at the time of the hearing. Mr. Hebert stated that he did not check with accounting to see if these figures were accurate. The trial court sustained Ms. Keith's counsel's objections to a document Mr. Hebert prepared showing the sales figures and to Mr. Hebert's testimony about the closed sales figures for Olinde's. The trial court then commented, "I will tell both of you very frankly, I think everyone in this room that was affected by the flood knows that more people bought furniture after August of 2016, and as time goes by, that is going to drop off because people have rebuilt and moved back in."
Larry Latuso, a certified public accountant, testified that his accounting firm prepared Mr. Keith's personal and business income tax returns for 2016. The 2016 returns showed that the business's income was $63,440.00 that was all attributable to Mr. Keith, according to Mr. Latuso. Mr. Keith's 2016 individual income tax return showed that his wages were $23,700.00, and his adjusted gross income after adding the business income of $63,440.00 was $86,010.00. Mr. Latuso testified that in 2016, Mr. Keith's net taxable income, which is the income after deductions and exemptions were taken, was $60,675.00. Mr. Keith also submitted into evidence the 2014 and 2015 joint income tax returns for him and Ms. Keith, which showed the income from the business as $40,774.00 in 2014 and $50,577.00 in 2015. The individual income for each party is not specified in the exhibit. Mr. Keith testified that in the past he had used his business account to pay his house and automobile notes and for cell phone service for himself, Ms. Keith, and their children.
The 2016 business tax return shows that Mr. Keith is the sole shareholder in his business. The 2016 tax return for the business also showed that the gross receipts or sales were $277,712.00, and, after deductions, that the gross profit was $132,107.00. Officer compensation was listed as $23,700.00.
Mr. Latuso prepared a quarterly financial statement consisting of revenues and expenses on an income tax basis for the business for 2017 that showed the net income for January, February, and March of 2017 as $38,933.33; for April, May, and June of 2017 as $45,230.05; for the third quarter of 2017 as $30,258.51; and for the fourth quarter as $3,211.82. The total net income for the business in 2017 was $117,633.71. Mr. Latuso testified that Mr. Keith also drew a salary from his business, and in 2017, his salary was $20,963.00. According to Mr. Latuso, Mr. Keith's individual taxable income was about $138,000.00 in 2017, and his average monthly income for the last six months of 2017 was $7,444.00. On cross-examination, Ms. Keith testified that she wanted to base the child support award on Mr. Keith's income from January through July of 2017.
Ms. Keith also submitted an income chart for Mr. Keith's company, which was identical to that submitted by Mr. Keith except for the net income for the last quarter, which was shown as $8,182.65 on Ms. Keith's chart, resulting in a total net income of $122,604.54 for the business in 2017. Mr. Latuso testified that the larger number on her chart was due to the erroneous inclusion of a bank loan as income.
Both parties submitted affidavits of monthly income and expenses. Mr. Keith listed his gross income as $8,153.77 in his affidavit dated March 2, 2018, and Ms. Keith listed hers as $6,843.78 in her affidavit dated July 13, 2017. In basing its child support calculations upon a gross income of $14,000.00, the trial court stated:
Ms. Keith testified that she worked for Blue Cross Blue Shield Louisiana. She verified that her 2017 W-2 showed taxable wages of $76,250.14. However, according to her income and expense affidavit, her monthly gross wages in 2017 were $6,843.78, which multiplied by twelve totals $82,125.36. We note that the social security and Medicare wages are listed as $82,207.83 on the 2017 W-2. Ms. Keith's paycheck stubs for June of 2017 and February of 2018 show that her bimonthly gross pay was $3,421.89 and $3,421.90, respectively, which would yield a monthly pay of $6,843.78 or $6,843.80.
So, what I've done is for the child support calculation, I utilized $6,850 for mom and $14,000 a month for dad. I find based upon looking at the previous numbers that were given to me, his gross could have ranged [anywhere] from $15,000, under my calculations, $15,000 all the way up to $22,000. I felt like $14,000 was a reasonable number to use.
Because Mr. Keith operated his own business, those sections of La. R.S. 9:315(C)(3) pertaining to gross income derived from self-employment apply. They provide that gross income means:
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent's personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals; and
(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. "Ordinary and necessary expenses" shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.
Although the trial court did not outline in detail how it reached the range of $15,000.00 to $22,000.00 for Mr. Keith's gross monthly income, the use of $14,000.00 per month is supported by the record. The chart prepared by Mr. Latuso showed that Mr. Keith's net income from his business from January through June of 2017 would total $84,163.38, or $14,027.23 monthly. The trial court elected to use this amount as opposed to the $7,444.00 that Mr. Latuso calculated for Mr. Keith's average monthly income.
The only evidence that Mr. Keith presented on the flood's effect on his business was Mr. Hebert's testimony, and Mr. Hebert admitted that he had not checked with the accounting department to determine if the sales figures he gave the court were correct. Additionally, Mr. Keith's conclusory statement that business had returned to pre-flood levels and the trial court's comment that the flood produced a temporary increase in furniture sales do not show that the trial court erred in calculating his child support obligation using the first six months of his 2017 income. By failing to present evidence of his business's net income from previous years so that the trial court could compare the 2017 income to prior years, Mr. Keith did not prove that the increased income was temporary. While the trial court did not base the gross income calculation on the business's income for the entire year or upon the last six months of 2017, the testimony and evidence do not support a finding that the trial court abused its discretion in using the January through June 2017 time period. We also find no error in the trial court's failure to characterize any additional income due to the flood as extraordinary overtime. Since the trial court must use its discretion in setting the amount of child support based upon the facts before it, an appellate court is not to disturb the trial court's factual findings absent an abuse of its discretion or manifest error. Accordingly, we will not disturb the trial court's determination of gross income for child support, and Mr. Keith's first assignment of error has no merit.
We note that La. R.S. 9:315.2(A) provides in pertinent part:
When an obligor has an ownership interest in a business, suitable documentation [of his income] shall include but is not limited to the last three personal and business state and federal income tax returns, including all attachments and all schedules, specifically Schedule K-1 and W-2 forms, 1099 forms, and amendments, the most recent profit and loss statements, balance sheets, financial statements, quarterly sales tax reports, personal and business bank account statements, receipts, and expenses.Mr. Keith did not submit the business returns for 2015 and 2014.
As in all child support proceedings, Mr. Keith has the right to request a reduction in child support if he can show a material change in circumstances, such as his income decreasing after the increases caused by the Great Flood of 2016. See La. R.S. 9:311(A).
RETROACTIVITY
In his second assignment of error, Mr. Keith contends that the trial court erred in failing to make the child support award retroactive to January 3, 2017, the date of initial judicial demand by Ms. Keith, or to September 25, 2017, the date Mr. Keith filed his motion to set all issues for trial. According to the judgment, the earlier child support award in the judgment dated May 9, 2017, was considered an interim award, and any subsequent child support award was prospective only. Therefore, the final child support judgment was effective as of March 22, 2018. In support of his contention on retroactivity, Mr. Keith in brief states that the interim child support award of $3,000.00 was set after a status conference. He asserts that there was no evidence of what the income of either party was at that time, and he contends that, based upon the income tax returns of each party, interim child support should have been set at $1,475.56.
The judgment states that the child support in the May 9, 2017 judgment "is considered an interim award and any subsequent award shall be prospective only." Although in the reasons given at the hearing the trial court stated that the final child support award was effective as of the date of the hearing, where the reasons for judgment differ from the judgment, the judgment controls. See Bezou v. Bezou, 2015-1879 (La. App. 1 Cir. 9/16/16), 203 So.3d 488, 498, writ denied, 2016-1869 (La. 12/5/16), 210 So.3d 814.
The retroactivity of a child support award is governed by La. R.S. 9:315.21, which states, in pertinent part:
A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
Louisiana Revised Statutes 9:315.21(B) treats a final child support award differently depending on whether an interim award was in effect at the time the final judgment was signed. Vaccari v. Vaccari, 2010-2016 (La. 12/10/10), 50 So.3d 139, 143; Miles v. Hunter, 2014-0669 (La. App. 1 Cir. 11/20/14), 168 So.3d 430, 434. If an interim award is not in effect on the date of the judgment awarding final child support, then a final award is required to be made retroactive to the date of judicial demand, except for good cause shown. La. R.S. 9:315.21(B)(2). But when an interim order is in effect, La. R.S. 9:315.21(B)(1) neither expressly permits, nor forbids, a court from making a final award retroactive. Vaccari, 50 So.3d at 143; St. Philip v. Montalbano, 2016-0254 (La. App. 1 Cir. 10/31/16), 206 So.3d 909, 914-15, writ denied, 2016-2110 (La. 1/13/17), 215 So.3d 255. The Louisiana Supreme Court has interpreted La. R.S. 9:315.21 to mean that "upon a showing of good cause, a trial court may order a final child support award retroactive to the date of judicial demand even though there has been an interim order in effect." Vaccari, 50 So.3d at 143 (emphasis added); see also St. Philip, 206 So.3d at 915. Absent a showing of good cause, however, the final child support award begins on the date of the signing of the judgment which awards it and terminates the interim award. La. R.S. 9:315.21(B); Miles, 168 So.3d at 435.
In this case, the trial court in its oral reasons for judgment commented that, while the May 19, 2017 judgment and court form did not describe the child support as interim, the court's notes and the memoranda indicated that it "was everyone's understanding that that was an amount of child support that was being put in place until we could get the exact number." The trial court concluded that the earlier child support award was an interim support award. The trial court made no finding of good cause, and, based on the record before us, we find no abuse of discretion in that finding. The parties stipulated to the $3,000.00 interim award, which is only $302.00 more than the $2,698.00 permanent award. In a case such as this where an interim child support award was in effect and there was no showing of good cause, La. R.S. 9:315.21 requires that the final child support award begin on the date of the signing of the judgment, which terminates the interim award. See Miles, 168 So.3d at 434-35. Accordingly, Mr. Keith's second assignment of error has no merit.
SPOUSAL SUPPORT
In his third assignment of error, Mr. Keith contends that the trial court erred in awarding Ms. Keith $300.00 monthly for final spousal support as she did not meet her burden of proof, and he did not have the ability to pay it. According to the judgment, the court based the $300.00 amount on Ms. Keith needing $6,199.00 per month after deducting her expenses from her available income, and on Mr. Keith having $700.00 available each month after deducting his expenses from his available income. Mr. Keith asserts that Ms. Keith failed to provide evidence of her current expenses at trial based on her testimony that many of the expenses she listed on her July 13, 2017 affidavit of income and expenses, were not accurate because she had reduced her expenses since the separation. Mr. Keith argues that Ms. Keith's expenses were exaggerated and unreasonable. He contends that he does not have the ability to pay the spousal support award because the $700.00 monthly surplus that the trial court thought Mr. Keith had would not exist after he paid the child support award.
Mr. Keith submitted two income and expense affidavits, both dated March 2, 2018. In both, he listed his gross income as $8,153.77 and his total expenses as $6,872.73; however, one affidavit showed a higher tax expense than the other.
The trial court's award of final periodic spousal support is given great weight, and an appellate court should only disturb a trial court's award of final periodic spousal support when there has been a clear abuse of that discretion or when the amount exceeds the statutory limit of one third of the net income of the payor's income. See La. C.C. art. 112(D); Ennis v. Ennis, 2016-0423 (La. App. 1 Cir. 5/8/17), 2017 WL 1900328 (unpublished opinion).
Louisiana Civil Code article 112 was amended by 2018 La. Acts, No. 265 § 1, to add provisions concerning domestic violence and fault-based divorce, which are not applicable in this case. See Official Revision Comments-2018, comment (a) to La. C.C. art. 112. The amendment was approved on May 15, 2018, and therefore is effective on August 1, 2018. See La. Const. art. 3, § 19. We will refer to article 112 as it read at the time of the hearing in this case.
Louisiana Civil Code article 112(A) states that a spouse may be awarded final periodic support when that spouse has not been at fault prior to the filing of a petition for divorce and is in need of support, based on the needs of that party and the ability of the other party to pay. Louisiana Civil Code article 112(C) (as it read at the time of the hearing) gave the trial court a nonexclusive list of factors to be considered when determining the amount and duration of final periodic spousal support: (1) The income and means of the parties, including the liquidity of such means. (2) The financial obligations of the parties, including any interim allowance or final child support obligation. (3) The earning capacity of the parties. (4) The effect of custody of children upon a party's earning capacity. (5) The time necessary for the claimant to acquire appropriate education, training, or employment. (6) The health and age of the parties. (7) The duration of the marriage. (8) The tax consequences to either or both parties. (9) The existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant, regardless of whether the other spouse was prosecuted for the act of domestic violence. Official Revision Comments-1997, comment (b) to La. C.C. art. 112, provides, in pertinent part, that factor (3) is "intended to be broad enough to permit the court to consider ... the child support obligations of, or child support payments received by, either party" in making a spousal support award. Official Revision Comments-1997, comment (c) to La. C.C. art. 112, states that "[t]he sixth factor listed in this Article, coupled with the word 'duration' in the first sentence of the Article, permits the court to award rehabilitative support and other forms of support that terminate after a set period of time."
The provisions formerly in La. C.C. art. 112(C) as it read at the time of the hearing in this case are presently in subsection (B).
The goal of a final periodic spousal support award is limited to the amount sufficient for maintenance as opposed to continuing an accustomed style of living. See La. C.C. art. 111; Ennis; Anderson v. Anderson, 48,027 (La. App. 2 Cir. 5/15/13), 117 So.3d 208, 213. In an action for final periodic spousal support, the claimant spouse has the burden of proving insufficient means of support. Ennis. Until need has been demonstrated, the other spouse's financial means are irrelevant. Id. Support "means a sum sufficient for the claimant spouse's maintenance, which includes the allowable expenses for food, shelter, clothing, transportation expenses, medical and drug expenses, utilities, household maintenance, and the income tax liability generated by alimony payments." Id.; see also Prestenback v. Prestenback, 2008-0457 (La. App. 1 Cir. 11/18/08), 9 So.3d 172, 178. Generally, expenditures for newspapers, gifts, recreation, vacation, and church tithes are not to be considered in awarding final spousal support. Ennis. Similarly, expenses attributable to entertainment are not necessary for a spouse's maintenance and should not be considered in fixing final spousal support. Id.
There is certainly no requirement that a spouse deplete all of his or her assets before the spouse can be considered in need of support. See Wascom v. Wascom, 1997-0547 (La. App. 1 Cir. 6/29/98), 713 So.2d 1271, 1275, writ denied, 1998-2028 (La. 11/6/98), 728 So.2d 391. Rather, the trial court is to apply a rule of reasonableness to determine to what extent, if any, a claimant spouse must deplete his or her assets. Id.
Regarding final spousal support, Ms. Keith submitted an affidavit of income and expenses dated July 13, 2017. She further testified that, as shown on the affidavit, her gross income was $6,843.78 per month with mandatory tax deductions of $1,398.00. Ms. Keith's affidavit of expenses included both expenses for herself as well as expenses for the minor children. The expenses of the minor children are to be paid both from Ms. Keith's income and from the child support of $2,698.00 per month that she is ordered to receive from Mr. Keith. This child support was set in accordance with the child support guidelines, taking into consideration the income of both of the parents. See La. R.S. 9:315.
The affidavit included at least $2,151.50 in expenses specifically identified for the children, such as $1,432.50 in child care costs, $41.00 for a child's saxophone rental, $200.00 for the orthodontist, and various expenses totaling $478.00 for uniforms, meals/school lunch, supplies, school activities/fees, yearbook, toys and Christmas, and extracurricular activities. Ms. Keith also testified that the expenses of $375.00 for the psychologist, $200.00 for prescriptions, $250.00 for clothing, $75 for grooming, $400.00 for medical, $1,000.00 for food and household supplies, and $350.00 for dining out included expenses for the children, and that the expense of $50.00 for entertainment was only for the children.
Ms. Keith indicated in her testimony that she would require $5,000.00 per month to maintain the lifestyle that she was accustomed to at the time of her separation. However, final spousal support is based on the needs of a spouse, that is, the amount of income necessary for maintenance, not continuing an accustomed style of living. See Ennis; Anderson, 117 So.3d at 213. Ms. Keith is gainfully employed at Blue Cross Blue Shield and earned an annual salary of over $82,000.00 in 2017. The burden is on the spouse claiming final spousal support to prove that she has insufficient means for her support. Ms. Keith has failed to prove that she will not have a sufficient income for her maintenance from the income which she earns and that she will not have a sufficient amount to care for her children considering her income and the child support which she is ordered to receive. Considering all of the relevant factors set forth in La. C.C. art. 112(C), we find that the trial court abused its discretion in awarding final periodic spousal support to Ms. Keith, who is making over $82,000.00 in income per year. While recognizing the vast discretion of the trial court to set final periodic spousal support, the award of $300.00 per month indefinitely for final periodic spousal support is excessive and inconsistent with the mandates of the Civil Code requiring consideration of earning capacity and needs of the spouse. See La. C.C. art. 112(C); Ennis. Accordingly, Mr. Keith's third assignment of error has merit, and we reverse that part of the judgment awarding final periodic spousal support.
See footnote 9. --------
CONCLUSION
Because we find that the trial court's indefinite award of $300.00 per month in final periodic spousal support was an abuse of discretion, we reverse that portion of the March 22, 2018 judgment for reasons consistent with this opinion. In all other respects, the March 22, 2018 judgment of the trial court is affirmed. Costs of this appeal are assessed equally between William Ned Keith, Jr., and Nicole T. Keith.
AFFIRMED IN PART, REVERSED IN PART.
NICOLE KEITH
VERSUS
WILLIAM KEITH
McDONALD, J., dissenting in part.
I disagree with the majority's affirmance of the trial court's judgment insofar as it orders Mr. Keith to pay $2,698/month in child support. Curiously, the trial court determined that Mr. Keith's gross monthly income for the pertinent time period ranged from $15,000 to $22,000, but then chose $14,000 as a "reasonable number to use" to calculate Mr. Keith's child support obligation. If the evidence supported a range of $15,000 to $22,000, it is unclear how $14,000, an amount not within that range, could be reasonable.
Further, based on Mr. Keith's testimony, Mr. Hebert's testimony, Mr. Latuso's testimony, Mr. Latuso's records, and the Keiths' relevant income tax documents, I think the trial court erred in determining that Mr. Keith's gross monthly income was $14,000. The above evidence clearly shows that Mr. Keith's gross monthly income was this high only for a short time after the 2016 flood. Thus, based on the totality of the evidence showing Mr. Keith's post-2016 flood income, I think the trial court should have based his child support obligation on a much lower gross monthly income. Accord State ex rel. DCFS v. Peters, 14-1800 (La. App. 1 Cir. 6/5/15), 174 So.3d 1200 (amending a trial court's child support award after finding an improper calculation); State v. Reed, 44,119 (La. App. 2. Cir. 1/14/09), 5 So.3d 269, 273-74 (reversing a trial court's child support award due to trial court's failure to give proper consideration to child support guidelines). Compare Montou v. Montou, 96-1463 (La. App. 3 Cir. 4/2/97), 692 So.2d 705, 706-07 (finding a trial court should have included overtime pay in father's gross income when those overtime earnings had been "significant and continuous" for at least three years).