Opinion
No. 2000 CA 0533.
September 28, 2001.
APPEAL FROM THE FAMILY COURT PARISH OF EAST BATON ROUGE, LOUISIANA DOCKET NO. 103, 363, DIVISION "A." HONORABLE JENNIFER LUSE, JUDGE PRESIDING.
Robert M. Hoyland, Amy E. Counce, Baton Rouge, for Plaintiff-Appellant Frances Broussard Holiday.
James Don Thomas, II, Baton Rouge, for Defendant-Appellee James S. Holliday, Jr.
Before: PARRO, FITZSIMMONS, GUIDRY, KLINE, and CLAIBORNE, JJ.
Judge William F. Kline, Jr., retired, and Judge Ian W. Claiborne. retired, are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.
Prior report: La.App., 795 So.2d 423.
We grant a rehearing without oral argument for the limited purpose of clarifying and amending our judgment to correct a factual discrepancy.
Mr. Holliday applied for a rehearing alleging, among other things, that this court's determination that $13,000 is past due does not account for an extra payment made by him. Specifically, our judgment ordered Mr. Holiday to pay Mrs. Holliday $13,000, plus interest, but did not apply a credit for an additional lump-sum payment, the "fill-in-the-gap" payment, that he made to Mrs. Holiday several months before trial. We agree that such a credit is due, and that the judgment must be amended to provide credit for that payment.
We do not address the other issues raised by Mr. Holliday in his application for rehearing, as they were thoroughly discussed in the original opinion and our conclusions on those legal issues have not changed.
As noted in footnote six of this court's original opinion, the record is not clear concerning the exact amount of this extra payment, considering Mr. Holliday's claim that it sufficed to bring his total payments to $52,000, in which case it would have to have been a payment of $2200. However, Mrs. Holliday testified that Mr. Holliday paid her $1700 in the summer of 1999, several months before the trial. Although there is no positive evidence in the record contradicting her testimony concerning the amount of that payment, the evidence of Mr. Holiday's other payments creates some question concerning the amount of the credit that should be applied against our judgment. Accordingly, the matter will be remanded to the trial court to receive evidence concerning the additional payment and to determine, based on that evidence, the amount of the credit to be applied against this court's judgment.
DECREE
This court's judgment of August 17, 2001, is hereby amended. Mr. Holliday is ordered to pay Mrs. Holliday $13,000, plus interest as specified in the original judgment, subject to a credit to be determined by the trial court. The case is remanded to the trial court for the sole purpose of receiving evidence and determining the amount of said credit.
REHEARING GRANTED WITHOUT ORAL ARGUMENT; JUDGMENT AMENDED; CASE REMANDED WITH INSTRUCTIONS.
ON REHEARING
GUIDRY, J., concurs in part' dissents in part and assigns reasons.
I concur in the judgment on rehearing to the extent it remands this matter. However, I dissent to the extent that the judgment limits consideration solely to the issue of remand for the calculation of the amount of support due. I would grant a full rehearing for the reasons stated in my original dissent.