This is an appeal from a judgment in connection with a hearing on matters incidental to a divorce. For the reasons that follow, we amend in part and affirm as amended. We also vacate in part and remand with instructions.
Factual and Procedural Background
On September 1, 1995, Ned Martello (Ned) and Laurie Bales (Laurie) entered into a prenuptial agreement; they were married on September 9, 1995. Of their marriage, two children were born: Nicholas on February 29, 1996, and Ned "Jacob" on August 30, 1999. Jacob was born with disabilities and is a special needs child.
On December 16, 2004, Ned filed a petition for divorce and incidental relief. On December 30, 2004, the parties executed a letter agreement purportedly canceling the prenuptial agreement. Subsequently, Laurie filed an answer and a reconventional demand. In response to her filing, Ned filed an answer, a first supplemental and amending petition, and a rule to set the incidental matters for a hearing.
Following a hearing on July 7, 2005, on the merits of the incidental matters, the trial court found that both parties were at fault in the breakup of the marriage, and Laurie's request for final periodic spousal support was denied. Nonetheless, the trial court ordered Ned to pay directly to Laurie interim spousal support of $3,500 per month from July 7, 2005, until six months after the signing of the judgment of divorce.
Ned appealed and urged that the trial court erred in the following respects:
Domiciliary Parent Designation
In his petition for divorce, Ned averred that it was in the best interest of the children for the parties to be awarded joint custody, care, and control of the minor children, with him being named as the domiciliary parent. In her answer, Laurie also sought joint custody and designation as the domiciliary parent. The trial court awarded joint custody. Based on its finding that Laurie had in the past assumed and exercised the position of the primary caretaker parent, the trial court designated Laurie as the domiciliary parent. Ned complained that the trial court erred in failing to designate him as the domiciliary parent.
In the absence of an agreement, the court shall award custody to the parents jointly. LSA-C.C. art. 132. To the extent it is feasible and in the best interest of the children, physical custody of the children should be shared equally. LSA-R.S. 9:335(A)(2)(b). Nonetheless, the trial court's finding that joint custody is in the
The primary consideration in a child custody determination is always the best interest of the child. LSA-C.C. art. 131. Louisiana Civil Code article 134 enumerates the following twelve nonexclusive factors that are relevant in determining the best interest of the child:
The best-interest-of-the-child test under LSA-C.C. arts. 131 and 134 is a fact-intensive inquiry, requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Romanowski v. Romanowski, 03-0124 (La.App. 1st Cir.2/23/04), 873 So.2d 656, 659. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Id.
The trial court is vested with broad discretion in deciding child custody cases. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. A trial court's determination regarding child custody will not be disturbed
In challenging the trial court's designation of Laurie as the domiciliary parent, Ned did not attack the trial court's weighing and balancing of the factors listed in LSA-C.C. art. 134. Rather, his focus was on the fact that he filed the petition for divorce because of Laurie's habitual lifestyle choices of partying, staying out until 3:00 or 4:00 in the morning, and sneaking into the house through a window. Both parties testified that Ned was home with the children while Laurie was out partying. Ned has been the primary financial supporter of the minor children. However, the record provides reasonable support for a finding that Laurie had been the primary caretaker for the minor children throughout their marriage and, specifically, had cared for the disabled child his entire life. Furthermore, at Ned's request, the trial court set Ned's physical custody with the minor children every other weekend beginning on Friday and ending on Sunday and two days and two nights during each week. Under this plan, Laurie would have the children three days and three nights during each week and alternating weekends. Based on these circumstances, we cannot find that the trial court abused its discretion or was manifestly erroneous in its decision to designate Laurie as the domiciliary parent.
Interim Spousal Support
A spouse may be awarded an interim spousal support allowance based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. LSA-C.C. art. 113. Absent a pending demand for final spousal support, an award of an interim spousal support allowance shall terminate upon the rendition of a judgment of divorce. LSA-C.C. art. 113. The spouse seeking interim spousal support bears the burden of proving his or her entitlement to it. Romanowski, 873 So.2d at 663-64. The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Id.
At the conclusion of the hearing, the trial court first addressed the issue of the parties' fault in the breakup of the marriage. The parties were both found to be at fault in the breakup of their marriage.
With the judgment of divorce being rendered and signed on September 21, 2005, there clearly was no claim for final spousal support pending at the time of the rendition of the judgment of divorce. Thus, the second sentence of LSA-C.C. art. 113 pertaining to the duration of an award for interim spousal support when a claim for final spousal support is pending at the time of the divorce is inapplicable. The termination of an interim spousal support award was instead governed by the first sentence of LSA-C.C. art. 113, which authorizes a court to award a party interim spousal support when a demand for final spousal support is pending, as well as upon the motion of a party. Thus, the fact that there was no longer a claim for final spousal support pending when the award of interim spousal support was made is not fatal to a claim for interim spousal support. However, LSA-C.C. art. 113 directs that such an award would terminate by operation of law upon the rendition of the judgment of divorce, which in this case was on September 21, 2005. For these reasons, although we find no legal error in the trial court's ordering of Ned to pay interim spousal support after a determination had been made that Laurie was not free from fault in the breakup of the marriage, we conclude that the trial court erred in ordering that the payment of interim periodic support continue for six months after the signing of the judgment of divorce. The judgment will be amended accordingly.
Article 113 authorizes an interim spousal support award after the court considers the needs of the claimant and the other party's ability to pay, in light of the standard of living enjoyed by the parties during the marriage. LSA-C.C. art. 111, Revision Comments-1997, comment (b); LSA-C.C. art. 113, Revision Comments-1997, comment (a). The needs of the claimant spouse, in this case, the wife, have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband's ability to pay. See Jones v. Jones, 38,790 (La.App. 2nd Cir.6/25/04), 877 So.2d 1061, 1072. This type of support is designed to preserve and continue the status quo insofar as maintenance and support are concerned. See id. It relates to facts as they have existed during the time the parties were living together and as they actually exist at the time the litigation commences, not to future possibilities and capabilities. See Arrendell v. Arrendell, 390 So.2d 927, 930 (La.App. 2nd Cir. 1980). The trial court is afforded much discretion in determining whether to make an award of interim spousal support, and such a determination will not be disturbed absent a clear abuse of discretion. Jones, 877 So.2d at 1072.
The trial court's award of interim spousal support in the amount of $3,500, plus $2,241 in payment of specified monthly obligations, was based on a finding that Ned and Laurie had a prior agreement as to the amount of support to which Laurie
Laurie testified that her monthly expenses totaled $12,331. This amount included $1,169 for housing, $200 for pool and yard maintenance, and $2,330 in monthly obligations on various credit cards. These expenses were being paid directly by Ned, and the $630 monthly note for the automobile and $143 monthly premium for automobile insurance were being paid by the clinic. Additionally, $3,995 was attributable to direct expenses for the children. The remaining expenses listed on her financial statement were for utilities ($534), food ($1,000), gas and oil ($400), and personal expenses of Laurie ($500 for clothing/uniforms, $200 for cleaning/laundry, $125 for medical/dental, $325 for hygiene, $500 for entertainment, and $280 for other expenses).
According to Laurie, the $3,500 payment that she had been receiving from Ned was barely enough to make ends meet and was insufficient to maintain her and the children in the standard of living they enjoyed prior to the separation. Although this court believes that to be true, we are also mindful that the amount of interim spousal support is subject to limitation, based on the payor spouse's ability to pay.
The total award of interim spousal support to Laurie, $5,741, is approximately 64 percent of Ned's monthly gross income, which the trial court found to be $9,000.
In his petition, Ned sought an award of joint custody and designation as the domiciliary parent. In her reconventional demand, Laurie also sought joint custody, but with her being designated as the domiciliary parent. Pursuant to these requests, the trial court awarded joint custody of the children with a domiciliary parent as contemplated by LSA-R.S. 9:315.8, as opposed to shared custody as defined by LSA-R.S. 9:315.9. The basic child support obligation was set at $1,553, of which Ned was responsible for paying 100 percent.
In challenging the trial court's award of joint custody, Ned simply attacked the designation of Laurie, as opposed to him, as the domiciliary parent. We have already determined the trial court did not abuse its discretion in making this designation. Nonetheless, in attacking the amount of the award of child support, Ned urged that the trial court erred in using Worksheet A of LSA-R.S. 9:315.20 in calculating his child support obligation. According to Ned, Worksheet B should have been utilized, since the parties share equally the physical custody of the minor children.
Louisiana Revised Statute 9:315.9 contains the formula for calculating child support when the parents have shared custody. "Shared custody" is defined as "a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time." LSA-R.S. 9:315.9(A)(1). The formula differs from the typical child support formula, in that it has a built-in adjustment for the duplication of costs that inevitably occurs in a shared custody arrangement,
In determining whether a particular arrangement is shared, LSA-R.S. 9:315.9 does not bind the trial court to a threshold percentage determined solely on
The custody arrangement ordered by the trial court in this case gave Ned custody of the children approximately 42.85 percent of the time. The trial court awarded joint custody, without an express determination of whether the split of physical custody constituted shared custody, and utilized Worksheet A, rather than Worksheet B, in calculating the basic child support obligation. We find no error or abuse of discretion in the trial court's apparent conclusion that the joint custody order in this case did not provide each parent with physical custody of the child for an "approximately equal" amount of time. Therefore, the trial court did not legally err in computing child support in accordance with the formula in LSA-R.S. 9:315.8 and Worksheet A of LSA-R.S. 9:315.20.
Child support is a continuous obligation of both parents; children are entitled to share in the current income of both parents and should not be the economic victims of divorce. LSA-R.S. 9:315(A). Income means the actual gross income of a party, if the party is employed to full capacity. LSA-R.S. 9:315(C)(5)(a). Pursuant to LSA-R.S. 9:315(C)(3)(c), gross income includes:
Ned was in business for himself as Martello Chiropractic Clinic. The clinic's monthly income was $21,000, which was the same as in 2002. Ned explained that although business had declined as much as 20 percent, actual receipts had remained about the same due to superior collection efforts. Documentation prepared by Ned in 2002 for submission to a lending institution in connection with a loan application showed approximately $6,700 in business expenses per month. This documentation indicated that Ned expected that his expenses would decrease with the maturation of three large overhead expenses in the next eleven months. Nonetheless, Ned offered
In assessing the clinic's average monthly expenses at $12,000, the trial court apparently believed the clinic's expenses had increased from 2002 to 2005 due to circumstances beyond Ned's control. However, the trial court clearly did not believe that such expenses had more than doubled during this time. Considering the evidence in the record and the inherent credibility call made by the trial court on this issue, we conclude that the trial court's finding of $12,000 in average monthly business expenses is reasonably supported by the record and is not manifestly erroneous.
Without determining Laurie's potential income, the trial court found that her gross income was zero, because she was no longer allowed to work at Ned's clinic. Ned urged that the trial court erred in failing to impute an income to Laurie for purposes of establishing the basic child support obligation.
As previously stated, child support is a continuous obligation of both parents; children are entitled to share in the current income of both parents and should not be the economic victims of divorce. LSA-R.S. 9:315(A); see LSA-C.C. art. 141, Revision Comments—1993. In the case of a party who is voluntarily unemployed or underemployed,
Laurie testified that she had worked prior to the marriage, but did not give any details. She explained that she worked in collections at her husband's chiropractic clinic for approximately six hours a week, earning $4,000 per month. Her employment with the clinic ended with the breakup of the marriage, and Ned hired someone else to do the work that Laurie had been performing. Based on Ned's unwillingness
Laurie noted that she personally has cared for the minor children their entire life and that Jacob, who is severely disabled, required her attention 100 percent of the time. Based on the needs of her disabled child, Laurie maintained that she is unable to work. In discussing Laurie's need for interim spousal support in its oral reasons for judgment, the trial court urged Laurie to get educated in order to put herself in the position to maintain some type of gainful employment and become more self-sufficient. It is implicit in these comments that the trial court did not believe the needs of her children would preclude Laurie's ability to obtain gainful employment.
Laurie's collection work for the clinic shows that she is able to earn an income. Although she has a child with special needs, he attends school full time. The evidence further shows that Jacob has been left in the care of a third party. The petition for divorce was filed on December 16, 2004, around which time Laurie's employment with the clinic was terminated. The hearing on incidental matters was held on July 7, 2005. The record does not reveal that Laurie made any effort to obtain employment during this time.
Absent any evidence that Laurie is incapable of being employed,
Although it is questionable under the facts of this case that gross income in the amount of $4,000 per month should be imputed to Laurie, the evidence certainly indicates that she is capable of some type of employment.
Although Ned asserted that the trial court erred in finding that the monthly tuition for the program needed by their disabled child was $819.17, this issue was not briefed by him and is considered abandoned. See Uniform Rules, Courts of Appeal, Rule 2-12.4; Canizaro v. Tangipahoa Parish Sch. Sys., 02-1913 (La.App. 1st Cir.8/20/03), 853 So.2d 741, 744 n. 2.
However, since the trial court's determination of the basic child support obligation may impact the parties' proportionate shares of expenses and extraordinary adjustments, we also vacate that portion of the judgment ordering Ned to pay 100 percent of all extraordinary expenses. On remand, Ned's responsibility for payment of tuition expenses and extraordinary expenses is to be assessed by the trial court, once the basic child support obligation has been determined.
Cancellation of the Prenuptial Agreement
A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married persons as between themselves and toward third persons. LSA-C.C. art. 2325. The matrimonial regime may be legal, contractual, or partly legal and partly contractual. LSA-C.C. art. 2326. The legal regime is the community of acquets and gains. LSA-C.C. art. 2327. A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect. LSA-C.C. art. 2328.
Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy. Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval. LSA-C.C. art. 2329.
A matrimonial agreement shall be made by authentic act or by an act under private signature duly acknowledged by the spouses. LSA-C.C. art. 2331. Louisiana Civil Code article 1833
A matrimonial agreement, or a judgment establishing a regime of separation of property, is effective toward third persons as to immovable property, when filed for registry in the conveyance records of the
Prior to their marriage, Laurie and Ned entered into a prenuptial agreement establishing a regime of separation of property. This document was recorded in the conveyance records of Livingston Parish to serve as notice to third persons. On December 30, 2004, the parties entered into a letter agreement addressed to the clerk of court of the "21st District Court of Louisiana" referred to as a "Cancellation of Prenuptial Agreement" that provided:
This letter agreement was signed by Ned and Laurie before a notary and in the presence of two witnesses. Although addressed to the clerk of court, the content of this notarized document evidenced more than merely a request for cancellation of the recordation of the agreement. It evidences an agreement by the spouses to terminate their contractual matrimonial regime, which was a regime of separation of property. Pursuant to their December 30, 2004 agreement, the parties subjected themselves to the legal regime; thus, court approval was not necessary. See LSA-C.C. arts. 2328, 2329.
Ned challenged the trial court's finding that the cancellation of the prenuptial agreement was valid and enforceable. This document was executed after Ned filed his petition for a divorce.
On appeal, Ned further urged that the trial court erred in failing to determine the
Exclusive Use of the Matrimonial Domicile
In his petition, Ned sought to be awarded the exclusive use and occupancy of the former matrimonial domicile pending the partition of their property. His argument on appeal focuses primarily on his efforts to be named as the domiciliary parent. Having found no error in the trial court's designation of Laurie as domiciliary parent, we are also unable to find error in the trial court's apparent conclusion that it would be in the best interest of the family that Laurie be awarded the exclusive use and occupancy of the former matrimonial domicile, pending the classification of this property.
In connection with his assignment of error pertaining to the use of the family home, Ned also asserted that the trial court failed to rule on the issue of the fair market rental value of the former matrimonial domicile or on the reimbursement of mortgage payments on said property, which were paid by Ned. Laurie submitted that the judgment's silence as to this issue indicates a denial of any such claim.
LSA-R.S. 9:374(C) provides, in pertinent part:
Under LSA-R.S. 9:374(C), the decision to award rent to a non-occupant spouse rests soundly within the trial court's discretion. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1289.
In his petition for divorce and other incidental matters, Ned sought the exclusive use and occupancy of the family home, but made no alternative claim for the fair rental value of the home in the event the court denied this request. Despite Laurie's claim for use and occupancy of the family home in her reconventional demand, Ned still did not seek an award of rental, should the court agree with her claim. Under the circumstances of this case, we find no abuse of discretion in the trial court's failure to make such an award.
For the foregoing reasons, that portion of the judgment ordering Ned to pay $3,500 a month in interim spousal support
McCLENDON, J., concurs, and assigns reasons.
McCLENDON, J., concurring.
While I agree with the result reached by the majority herein, I concur in the opinion with respect to the majority's discussion of the effect of the cancellation of the prenuptial agreement. The majority determined that Mr. Martello did not brief this assignment of error as to the effect of the cancellation and therefore, considered it abandoned. However, in his appellate brief, Mr. Martello argued that the document was drafted in an attempt to make his marriage work. He further asserted that the cancellation of the prenuptial agreement was intended to be prospective so that if he and Mrs. Martello reconciled they would live under a community regime after December 30, 2004. Although Mr. Martello set forth a minimal argument, I cannot find that this assignment of error was abandoned. Nevertheless, the trial court judgment merely declared the cancellation document to be valid. Thus, any determination of the effect of the cancellation by this court would be premature. In all other respects, I agree with the majority opinion.