Opinion
2018 CU 1434
02-26-2019
VICKI SANDERSON v. DALE SANDERSON
Erik L. Burns Denham Springs, Louisiana Attorney for Defendant/Appellant, Dale Sanderson Melissa R. Eldridge Walker, Louisiana Attorney for Plaintiff/Appellee, Vicki Sanderson
NOT DESIGNATED FOR PUBLICATION On Appeal from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana
No. 152922 Honorable Jeffery T. Oglesbee, Judge Presiding Erik L. Burns
Denham Springs, Louisiana Attorney for Defendant/Appellant,
Dale Sanderson Melissa R. Eldridge
Walker, Louisiana Attorney for Plaintiff/Appellee,
Vicki Sanderson BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ. PENZATO, J.
This is an appeal by Dale Sanderson of a trial court judgment awarding his former wife final periodic spousal support in the amount of $1,300.00 per month and a trial court judgment denying his motion for new trial. For the following reasons, we amend the judgment and affirm as amended.
FACTS AND PROCEDURAL HISTORY
Dale and Vicki Sanderson were married on December 27, 1997. Two children were born of the marriage, a now-major daughter born on March 18, 1999, and A.S. born on April 22, 2004. Ms. Sanderson filed a petition for divorce on August 5, 2016, requesting child support and spousal support. Pursuant to a stipulated judgment signed October 26, 2016, Mr. Sanderson was ordered to pay to Ms. Sanderson child support in the amount of $2,100.00 per month and interim spousal support in the amount of $2,350.00 per month. On May 22, 2017, Mr. Sanderson filed a motion to re-determine child support based upon the older daughter reaching the age of majority and graduating from high school. He further sought to reduce or eliminate interim spousal support based upon Ms. Sanderson's access to funds from his liquidation of community bank accounts. By judgment signed October 12, 2017, Mr. Sanderson's child support obligation was reduced to $1,620.22 per month. His motion to reduce or eliminate interim spousal support was denied. Mr. Sanderson filed a motion for divorce on November 15, 2017, and Ms. Sanderson filed a motion for final periodic spousal support on December 11, 2017. The parties were divorced by judgment rendered December 13, 2017, and signed January 16, 2018.
The judgment of divorce erroneously states it was read and signed on January 16, 2017.
A trial was held on March 19, 2018, on the issue of final periodic spousal support. At trial, Mr. Sanderson stipulated that Ms. Sanderson was free from fault for the dissolution of the marriage. The trial court considered the testimony of the parties and the evidence presented, and on May 7, 2018, signed a judgment ordering that Mr. Sanderson pay final periodic spousal support to Ms. Sanderson in the amount of $1,300.00 per month. Mr. Sanderson filed a motion for new trial, arguing that the judgment of May 7, 2018, was clearly contrary to the law and evidence with regard to the award of final periodic spousal support. Following a hearing, the motion for new trial was denied by judgment signed July 16, 2018. Mr. Sanderson appealed, alleging that the trial court erred in setting final periodic spousal support by failing to include child support received by Ms. Sanderson; including expenses which are not necessities as defined by law; failing to set a specified time for which Ms. Sanderson would receive final periodic spousal support; and failing to consider the assets available to Ms. Sanderson when granting final periodic spousal support for an indefinite period of time.
The motion for new trial erroneously states that the judgment at issue was signed on May 2, 2018.
LAW AND DISCUSSION
A claim for spousal support is governed by La. C.C. arts. 111 and 112. Louisiana Civil Code article 111 provides that in a proceeding for divorce, a court may award final periodic spousal support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. Final periodic spousal support may be awarded when a 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. La. C.C. art. 112(A). The court shall consider all relevant factors in determining the amount and duration of final support, which may include:
Louisiana Civil Code article 112 was amended by Acts 2018, No. 265 effective August 1, 2018. The 2018 revision is intended to clarify the relevance of need, ability to pay, and pre-filing fault to spousal support in the domestic violence and fault-based divorce context. La. C.C. art. 112, Revision Comments-2018(a). --------
(1) The income and means of the parties, including the liquidity of such means.La. C.C. art. 112(B).
(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 or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of domestic violence.
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. Ennis v. Ennis, 2016-0423 (La. App. 1 Cir. 5/8/17), 2017 WL 1900328 *3 (unpublished). In an action for final periodic spousal support, the claimant spouse has the burden of proving insufficient means of support. Until need has been demonstrated, the other spouse's financial means are irrelevant. Id. Although "means" includes both income and property, courts usually determine initially the monthly income to be attributed to the claimant spouse and compare this sum to the spouse's 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 final periodic spousal support. Prestenback v. Prestenback, 2008-0457 (La. App. 1 Cir. 11/18/08), 9 So. 3d 172, 178.
"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. This includes mortgage payments, utilities, and other related expenses. Id. Expenditures for newspapers, gifts, recreation, vacation, and church tithes are not to be considered in awarding final periodic spousal support. Similarly, expenses attributable to entertainment, including cable television service, are not necessary for a spouse's maintenance and should not be considered in fixing final periodic spousal support. Id.
It is within the sound discretion of the trial court to allow and fix the amount of spousal support, to be exercised not arbitrarily or willfully but with regard to what is just and proper under the facts of the case. Such awards should not be disturbed absent a clear abuse of that discretion. Id. at 176.
Mr. Sanderson objects to the amount awarded in final periodic spousal support in three of his assignments of error. In his first assignment of error, he asserts that the trial court erred in failing to include child support as an offset to food and other household expenses claimed on Ms. Sanderson's income and expense affidavit. In his second assignment of error, he objects to the following items on Ms. Sanderson's income and expense affidavit as excessive, unsupported, or not necessities: food in the amount of $640.00 per month; termite protection in the amount of $20.00 per month; phone, cable, and internet in the amount of $197.00 per month; air conditioner maintenance in the amount of $10.00 per month; medical and dental in the amount of $300.00 per month; and dining in the amount of $180.00 per month. In his fourth assignment of error, he claims that the trial court erred in failing to give any consideration to the community assets available to Ms. Sanderson.
Ms. Sanderson's income and expense affidavit was admitted into evidence at the March 19, 2018 trial and indicated a net monthly income of $1,330.02 and total monthly itemized expenses of $2,608.00, resulting in a deficit of $1,277.98. At the March 19, 2018 trial, Ms. Sanderson testified that the income and expense affidavit included only her expenses. She stated that she did not include the amount she received as child support or expenses for A.S.'s clothing or activities as all of that was covered by the child support. Ms. Sanderson acknowledged that the $640.00 per month expense for food included food for the children but testified that the remaining expenses did not pertain to them. She testified that the income and expense affidavit did not include her credit card expense, which varies monthly. She also testified that the income and expense affidavit did not include mortgage or rent, because she lives in the house that she owns jointly with Mr. Sanderson and it is paid off. She does not anticipate being able to continue to live rent or mortgage free because there are things that need to be done in the house and the community property has not yet been divided. Ms. Sanderson testified that the $180.00 that was included for dining represents the expense she incurs when Mr. Sanderson cancels his visitation with A.S. With regard to the $300.00 per month medical and dental expense, Ms. Sanderson initially testified that it represented her insurance, which was listed as a payroll deduction elsewhere on the income and expense affidavit and was therefore duplicative, but later testified that her deductible and co-pays were not included anywhere else on the income and expense affidavit.
Ms. Sanderson testified that she is currently employed at Burger King and makes $10.52 per hour. She testified that because of the inconsistency in Mr. Sanderson's periods of physical custody of A.S., she has difficulty working in the afternoons. She acknowledged that early in her relationship with Mr. Sanderson she was a restaurant manager but stated that she was unable to move into management because of the work schedule. She testified that she has been with the same company since 1988, has been working the same schedule for sixteen years, and the company has been very flexible with her schedule and allowing her to take off time for the children. Ms. Sanderson acknowledged that she received $32,000.00 from a community investment account and had received some money as an inheritance, but further testified that she had not accumulated any funds during the time that she had been receiving interim spousal support because she had to purchase a vehicle.
Mr. Sanderson's income and expense affidavit was also admitted into evidence at the March 19, 2018 trial and indicated a net monthly income of $11,416.00 and total monthly itemized expenses of $8,575.00, which included the interim spousal support of $2,350.00 per month and child support of $1,620.00 per month.
At the conclusion of the March 19, 2018 trial, the trial court recognized its obligation to consider all relevant factors in determining the amount and duration of final support, including the factors listed in La. C.C. art 112. In setting final periodic spousal support in the amount of $1,300.00 per month, the trial court set forth its reasoning as follows:
In the testimony of the parties, Ms. Sanderson indicated that she has been employed in the same job since 1988, working the same schedule, earning virtually the same amount of money. Mr. Sanderson indicated the he's always worked multiple jobs, although he did pick up a couple of extra - we'll call them shifts or hospitals - beginning in January of 2017.
Currently Mr. Sanderson, by stipulation, had agreed to pay interim spousal support of $2,350.00 per month. Based upon my review of his income and expenses, as well as Ms. Sanderson's income and expenses, the court is going to set a final periodic spousal support amount of $1,300.00 per month.
The trial court issued a blanket award of $1,300.00 per month based upon its review of Ms. Sanderson's expenses, which totaled $2,608.00 per month, and consideration of all relevant factors, including those listed in La. C.C. art 112. Without any delineation within the $1,300.00 award, we cannot say that the trial court awarded the support for excessive, unsupported, or unnecessary expenses, or failed to consider the amount Ms. Sanderson receives in child support. See Thomas v. Thomas, 2017-0760 (La. App. 4 Cir. 2/21/18), 238 So. 3d 515, 523-24 (Claimant spouse had monthly expenses of $3,480.00, which included expenses for restaurants, recreation, gifts to children and others, and travel. She also received $698.00 per month in child support for the parties' minor child. Her income and expense affidavit reflected a monthly shortfall of $1,280.23; the trial court awarded a blanket award of $1,280.00 per month, which was affirmed.)
Ms. Sanderson testified that her work schedule is impacted because of the inconsistency of Mr. Sanderson's schedule. She also testified that her credit card expense was not included on her income and expense affidavit and that she anticipated the need to make repairs to the community home. She further testified that she had purchased a vehicle and did not have any of the $32,000.00 in community assets that she had received. The trial court weighed all of the testimony and reviewed the documentation of the parties' income and expenses. Considering all of the relevant factors, we find that the trial court did not abuse its discretion by awarding Ms. Sanderson $1,300.00 per month in final periodic spousal support. See Fontenot-Swearengin v. Swearengin, 2013-0174 (La. App. 1 Cir. 11/1/13), 2013 WL 5915233 (unpublished) (Appellant argued that $750.00 per month awarded in final periodic spousal support was greater than the deficiency shown on claimant spouse's income and expense affidavit based upon his assertions that the trial court should have attributed additional income to claimant spouse for the $800.00 monthly child support she received, rent foregone by allowing a friend to live with her rent-free, and for potential profits for the sale of a community business, and that the trial court should have reduced her expenses by removing her gym membership and cable television expenses. This court found that the trial court's calculation was not an abuse of discretion. The income and expense affidavit showed a deficiency of $1,013.59 and the trial court considered additional expenses beyond that shown on the affidavit in calculating support, including the claimant spouse's testimony that she had been accumulating credit card debt in order to pay her bills, her car was unreliable and in need of multiple repairs, and she would have to purchase a new car soon.) See also Ennis, 2017 WL 1900328 (This court affirmed final periodic spousal support in the amount of $1,200.00 per month. The claimant spouse's income and expense affidavit indicated monthly expenses totaling $5,859.96, which included expenses for her and her two children, one of whom had reached the age of majority. The trial court excluded expenses for birthday and Christmas gifts, church donations, vacations, entertainment, and such other expenses unnecessary for support, and found that the claimant spouse had monthly expenses of $5,213.30. She received a monthly net income of $5,254.21. In addition, she received child support in the amount of $877.18. This court further held that the trial court abused its discretion in awarding final periodic support indefinitely, and amended the trial court judgment to order that final periodic support would terminate one year from the date of judgment.)
In his third assignment of error, Mr. Sanderson contends that the trial court abused its discretion in awarding final periodic spousal support for an indefinite period of time.
Ms. Sanderson testified that while an indefinite period of final periodic spousal support "would be great", she was seeking support until A.S., who was thirteen years old at the time of trial, is eighteen years old. She also testified that she had previously worked as a restaurant manager but was unable to move into management at this time because of the schedule and her need to take off time for the children.
We find that the continuation of an award of $1,300.00 per month indefinitely for final periodic spousal support is excessive and inconsistent with the mandates of the Louisiana Civil Code requiring consideration of earning capacity and needs of the spouse. See La. C.C. art. 112(B); Ennis, 2017 WL 1900328 at *4. While recognizing the vast discretion of the trial court to set final periodic spousal support, we find that the trial court abused its discretion in failing to set final periodic spousal support for a specific duration. Id.
Accordingly, we amend the judgment of the trial court to order that the final periodic spousal support shall terminate when A.S. reaches the age of eighteen. This will result in an amount of support for Ms. Sanderson to be able to adjust her expenses in order to pay for her needs from her income at the time of the termination of her final periodic spousal support. See Ennis, 2017 WL 1900328 at *5.
CONCLUSION
For the above-mentioned reasons, we find that the trial court did not abuse its discretion in awarding final periodic spousal support in the amount of $1,300.00 per month. However, we find that the trial court abused its discretion in failing to set a finite period for the final periodic spousal support. We amend the May 7, 2018 judgment of the trial court to state that the final periodic spousal support shall terminate when the minor child reaches the age of eighteen. As amended, the trial court judgment is affirmed. Costs are assessed equally between the parties.
AFFIRMED AS AMENDED. THERIOT, J., concurs and assigns reasons.
I agree with the majority that the trial court abused the vast discretion afforded it in setting final periodic spousal support when it declined to set a specific duration for the award of support. However, I write separately to point out that I would have preferred to remand the matter to the trial court for amendment of the judgment to set forth the specific duration of the final periodic spousal support. The trial court, having had the opportunity to observe the witnesses' demeanor and evaluate their credibility, is in a better position to make a determination as to when the award of final periodic support should terminate than the appellate court. See, Able v. Vulcan Materials Company, 2011-0448, p. 18 (La. App. 1 Cir. 2/8/12), 94 So. 3d 1, 12; Leal v. Dubois, 2000-1285, pp. 3-4 (La. 10/13/00), 769 So. 2d 1182, 1185. Therefore, I respectfully concur.