Opinion
2013 CU 1733
03-24-2014
RHONDA KAY KILCREASE BOND v. WILLIAM KEITH BOND
Erik L. Bums Michael A. Betts Denham Springs, Louisiana Counsel for Defendant-Appellant William Keith Bond Alfred B. Shapiro Kristina Webb Shapiro Baton Rouge, Louisiana Counsel for Plaintiff-Appellee Rhonda Kay Kilcrease Bond
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 126856, DIV. D, PARISH OF LIVINGSTON
STATE OF LOUISIANA
HONORABLE M. DOUGLAS HUGHES, JUDGE
Erik L. Bums
Michael A. Betts
Denham Springs, Louisiana
Counsel for Defendant-Appellant
William Keith Bond
Alfred B. Shapiro
Kristina Webb Shapiro
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellee
Rhonda Kay Kilcrease Bond
BEFORE. KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: Affirmed.
KUHN, J.
Defendant-appellant appeals from a trial court judgment concerning interim and permanent spousal support, child support, a visitation plan, contempt and arrearages. For the following reasons, we affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Rhonda Kay Kilcrease Bond, and defendant, William Keith Bond, were initially married on March 24, 1984, and had two children during their first marriage: Zachary, born May 16, 1988, and Rebecca, bom May 3, 1990. They divorced and then later remarried on October 1, 1994. During their second marriage, they had a third child, William Harrison (hereinafter called "Harrison"), born November 9, 1998. Plaintiff filed suit for divorce against defendant, William Keith Bond, on January 11, 2010. She sought joint custody of Harrison, the only minor-child at the time of the proceedings, 'with herself as domiciliary parent, child support, interim and permanent spousal support, and use of the former matrimonial domicile.
On April 26, 2010, the parties read a stipulated agreement into the record; judgment was later signed on February 16, 20 11. In the agreement, the parties were awarded joint custody with both parties as co-domiciliary parents; plaintiff was awarded child support of $625.00 per month and interim spousal support of $1,600.00 per month, with "credits for all sums paid by Keith Bond, including the household bills during the time she was occupying the home." Defendant was granted exclusive use of the family home after plaintiff vacated it as of June 1, 2010.
On December 22, 2010, defendant fled a motion to modify child custody, terminate his child support, reduce or terminate interim spousal support, set child support owed by plaintiff and set permanent spousal support. Defendant alleged Harrison began living with him on December 1, 2010 when plaintiff moved to Georgia to live with relatives.
On March 17, 2011, plaintiff filed a motion for a judgment for past due child support and interim spousal support, contempt, and attorney's fees.
The judgment of divorce was signed on March 28, 2011. After a hearing on the pending motions on December 18, 2012, judgment was signed on June 24, 2013. The judge granted the motion to terminate child support, terminating defendant's child support obligation as of August 11, 2011. Defendant was awarded child support of $160.65 per month from plaintiff beginning August 11, 2011. The judge denied defendant's motion to terminate interim periodic support. The judge also found plaintiff free from fault and awarded her $1,600.00 per month as final periodic support beginning on September 28, 2011 (six months after the judgment of divorce). Plaintiff's rule for contempt was granted and defendant was found in contempt for his failure to pay child and spousal support. Defendant was ordered to pay $250.00 in attorney's fees and costs. Plaintiff was awarded past due child support of $2,766.97 and past due spousal support of $47,628.46 as of December 17, 2012. The judge determined the arrearages of child support owed by plaintiff to defendant was $2,739.71 as of December 17, 2012, and those arrearages were to be offset against the past due support owed to her by defendant. Attached to the judgment was the schedule of arrearages. Joint custody was awarded with defendant named the domiciliary parent and visitation provided as in the plan of visitation, which was attached to the judgment.
Defendant appeals from that judgment, contending the trial court erred in failing to terminate or reduce plaintiff's award of interim spousal support, in awarding plaintiff permanent spousal support, in failing to terminate or reduce his child support sooner, in finding him in contempt, in awarding plaintiff biweekly visitation, and in assessing him with arrearages of $47,628.46.
INTERIM SPOUSAL SUPPORT
Defendant contends the trial court erred in failing to modify or terminate the interim spousal support. He claims plaintiff moved to Georgia in December 2010 with a tree place to live and with an income of $2,000.00 per month, which was not the situation when the parties stipulated he would pay $1,6.00.00 per month in interim spousal support. When he entered into the stipulation, he claimed plaintiff was living in the former matrimonial domicile with a mortgage note of $1,277.00 per month and an income of $1,200.00 per month. Defendant also claimed plaintiff did not properly report her income on the initial income/expense affidavit she submitted because he had discovered documentation suggesting her income was greater than $ 1.200.00 per month.
Defendant relies on the testimony of plaintiff's sister, Beverly Mi ms. that plaintiff was moving to Georgia to live with family in December 2010 and that she had a job for plaintiff paying $2,000.00 a month managing the trailer park owned by her and her husband. Ms. Mims did testify that plaintiff was going to help her manage the trailer park. However, she did not testify that plaintiff had actually done so. Mrs. Mims stated that plaintiff had done some work for her husband cleaning mobile homes as people moved out to the extent she could due to her back and knee problems; plaintiff also used the riding lawn mower to take care of the lawn, However, Mrs. Mims explained plaintiff was no longer helping them out, stating, "She wasn't able to finish a lot of things, and so it just didn't work out."
Louisiana Civil Code article 114 provides, in part, "An award of periodic support may be modified if the circumstances of - either party materially change and shall be terminated if it has become unnecessary," In determining whether the support should be modified or terminated based on the changed circumstances of either party, the court should consider the relevant factors listed in La. C.C. art. 113. La. C.C. art 114, comment (b). However, a finding of a change in circumstances does not automatically result in a modification or termination of support. Mizell v. Mizell, 40,601, p. 3 (La. App. 2d Cir. 1/25/06), 920 So.2d 927, 929. Rather, the effect of a finding of a change in circumstances is to shift the burden to the party opposing the modification or termination of spousal support to prove need and the relevant factors. See Mizell, 40,601 at p. 3, 920 So.2d 929.
An interim periodic support allowance is 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. La. C.C. art. 113. Interim spousal support is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. Loftice v. Loftice, 2007-1741, p. 4 (La. App. 1st Cir. 3/26/08), 985 So.2d 204, 207. A claimant demonstrates the need for interim spousal support if she establishes that she lacks sufficient income or the ability to earn a sufficient income to sustain the style or standard of living that she enjoyed while she resided with the other spouse. Loftice, 2007-1741 at p. 5, 985 So.2d at 207.
The trial court's determination of whether to reduce, increase, terminate, or continue the amount of spousal support should not be overturned or modified by an appellate court absent a clear abuse of discretion. Gardner v. Gardner, 97-0749 (La. App. 1st Cir.4/8/98), 710 So.2d 1153, 1155.
Plaintiff, who was forty-eight at the time of the hearing, testified she was living in the former matrimonial domicile with Harrison when she and defendant initially separated. She could not afford to stay in the house, so in April 2010, she moved into an apartment, where she lived until December 2010. Plaintiff had foot surgery and was evicted because she could not pay rent. In mid-December, she moved in with her aunt and uncle in Georgia. When defendant objected to Harrison living in Georgia with plaintiff she returned to Louisiana and lived with various relatives in their homes. In August 2011, Harrison moved in with defendant and plaintiff went back to Georgia.
Plaintiff testified she never worked a "steady job" during the fifteen-year second marriage. She was a substitute teacher in Livingston Parish in 2009. Plaintiff went to massage therapy school, but she could not do the work due to back and knee problems. She looked for a job in 2010, but was unable to obtain one. When she and defendant separated, she did temporary retail work in January and February 2011 in Baton Rouge for two weeks. Plaintiff admitted she had a job "waiting on her" working for her sister and her husband who owned a trailer park with over a hundred units, including a free place to live; however, she testified she "couldn't handle it."
As to plaintiff's older expense/income affidavit, her income of $1,200.00 was from Beau Chene Condominiums, which was owned by a relative. Plaintiff was a part-time manager and cleaned units for new renters. She explained that in some months she earned more than $1,200.00 and in others she earned nothing, describing the work as "hit or miss."
Plaintiff stated she had not been able to find work in Georgia, but she did have a part-time job cleaning an office at a law firm twice a month for $180.00 per month. Whenever she cleaned the office.; she had to break the work up into two days because she physically was unable to do it all in one day due to her back and knee problems. Several times, plaintiff's sisters had to dothe job for her due to her physical condition.
At the time of the December 2012 hearing, plaintiff was living in Calhoun, Georgia to take care of her mother, who had stage 4 cancer. Her father also had prostate cancer, but his health had improved. Because she was receiving no support payments from" defendant, her patents helped her financially.
Plaintiff introduced evidence to support her testimony as to her medical problems. In 2007, plaintiff was hospitalized at St. James Behavioral Health for five days and again in 2008 at Cypress Medical Hospital due to bipolar disorder and depression. After discharge from Cypress Medical Hospital, she saw Dr. Kumari Moturu, a psychiatrist who testified in her deposition that she treated plaintiff in April 2008 through 2012, She initially diagnosed plaintiff with bipolar disorder I with depression and later added the diagnosis of obsessive compulsive disorder (OCD). When Dr. Moturu was deposed on September 24, 2012, she was prescribing Seroquel XR, Symbyax, Klonipin and Luvox for plaintiff's depression, bipolar disorder, anxiety and OCD. Previously she had prescribed Xanax, Cymbalta, Weilbutrin Ativan, Depakote, Lamictal and Ability. According to Dr. Moturu, plaintiff was seeing Audra Kanleper, a social worker who worked with Dr. Moturu. Ms. Kanleper wrote a letter on February 19, 2009, addressed To Whom It May Concern, stating in her opinion plaintiff was incapable of being employed in any capacity. Dr. Moturu also testified that she believed plaintiff was unable to work and she did not believe plaintiff would eventually be able to return to employment due to her bipolar disorder. Dr. Moturu stated plaintiff had applied for Social Security disability benefits, and Dr. Moturu's office supplied her records to support the claim.
Plaintiff also submitted the records of the Bone and Joint Clinic, where she was treated for knee, back and foot problems. This clinic also provided records to the Social Security Administration to support plaintiff's disability claim. According to the records, plaintiff had surgery for a bunion on her left foot on December 1, 2010. During the years 2002 through 2008, plaintiff was diagnosed with cervical degenerative disc disease with neck pain but no radicular pain, arthritis in the left knee, mild chondromalacia of the right knee, lumbar degenerative disc disease with lumbar facet osteoarthritis and a bulging disc at three levels with an annular tear at L3-L4.
Our review of the record shows the trial court did not abuse its discretion in denying defendant's motion to reduce or terminate interim spousal support. Plaintiff's living circumstances following the separation were very fluid and her ability to work was compromised by her physical and mental health problems. While plaintiff discontinued paying the mortgage note, she also was not working and did not have the income she previously reported. Moreover, even during the times she stayed with family, she still had car, gas, insurance, and phone expenses such that she still had a need for interim spousal support. This assignment of error has no merit.
FINAL PERIODIC SPOUSAL SUPPORT
Louisiana Civil Code article 112 provides the court may award final periodic support to a spouse who has not been at fault and is in need of support. The burden of proving freedom from fault is upon the claimant. Cauthron v. Cauthron, 2012-0913, p. 2 (La. App. 1st Cir.2/15/13), 113 So.3d 232, 233. The fault must not only be of a serious nature, but must also be an independent, contributory or proximate cause of the separation. Cauthron, 2012-0913 at p. 3, 113 So.3d at 233. Fault sufficient to deprive a spouse of final periodic support is synonymous with the fault grounds that previously entitled a spouse to a separation or divorce, i.e., adultery, conviction of a felony, habitual intemperance or excesses, cruel treatment or outrages, public defamation, abandonment, an attempt on the other's life, status as a fugitive, and intentional non-support: Cauthron, 2012-0913 at p. 3, 113 So.3d at 233-234. As with any factual finding, a trial court's findings of fact relative to the issue of fault in domestic cases are entitled to great weight and will not. be overturned on appeal absent manliest error. Cauthron, 2012-0913 at p. 3, 113 So.3d at 234. As the trier of fact, the trial court is uniquely vested with the responsibility of evaluating credibility and making reasonable inferences of fact. Stobart v. State, 617 So.2d 880, 882 (La 1993).
Defendant contends plaintiff was at fault because she drank alcohol regularly while using prescription drugs, claiming she often became intoxicated, resulting in her failure to do housework or outside work or to otherwise contribute to the marriage.
Plaintiff testified she drank alcohol and occasionally became drunk, but not often or every day; she testified she was intoxicated maybe every couple of weeks, Two witnesses, plaintiff's friend and a school crossing guard who worked near the parties' former matrimonial domicile testified they had never seen plaintiff intoxicated. The crossing guard stated she only went to plaintiff's house tour times during the school year to check if Harrison was going to school. The parties' young adult daughter, Rebecca, testified plaintiff drank about two bottles of beer four or five nights a week but she did not appear drunk and was still able to perform household chores and carry on a conversation with her. Rebecca said she thought plaintiff was slow and went to bed "early'' Rebeeca also testified she had not seen her parents fight over plaintiff's drinking in the five years before they separated.
Defendant relied on the testimony of plaintiff's sister to establish plaintiff's alleged drinking problem, but Mrs. Mims testified she lived in Georgia and thus did not have firsthand knowledge of the situation. Moreover, her testimony was that plaintiff drank alcohol but did not have "to have it, I guess."
Defendant testified plaintiff drank to drunkenness more than twice a week. He also testified that plaintiff was drunk when he came home from work more than four times a week. According to defendant, he objected to her drinking while she was taking the drugs for her psychiatric disorders. He claimed her behavior caused problems in their marriage and with their children. Defendant testified he would return home from work sometimes to find plaintiff in bed without a meal prepared or laundry done and without any homework supervision for Harrison. He also stated that she had difficulty getting Harrison ready for school in the morning when defendant was at work. However, defendant admitted on questioning that he stopped to purchase alcohol for himself and plaintiff to drink on the way home from work. He later explained he believed she would obtain the alcohol anyway and she had promised to stop drinking at some point.
After reviewing the testimony and evidence, we find no error in the trial court's determination that plaintiff was free from fault in the dissolution of the marriage. The only testimony that plaintiff was habitually intemperate was defendant's and it was contradicted by the testimony of plaintiff, the parties' daughter, and two other witnesses. Moreover, the trial court in reviewing the testimony at the hearing emphasized that, while defendant complained about plaintiff's drinking, he regularly purchased alcohol for her.
Defendant contends the trial court erred in the amount of permanent spousal support awarded plaintiff. He asserts that plaintiff's estimated, not actual, expenses on her affidavit totaled $1,400.00 per month with a claimed income of $180.00 per month, so at most her award should have been $1,020.00. Defendant states he agreed to pay $1,600.00 in interim spousal support when he was living with his parents and did not have a mortgage payment.
Plaintiff listed the following living expenses: rent, S100.00; food. $200.00; household supplies, S50.00; clothing. $100.00; transportation/fuel cost, $200.00; medical. $.100.00; dental, $50.00; prescriptions, $50.00; electricity, $150.00: water. $25.00; telephone, $75.06; bandry, $50.00; persons! and grooming, $100.00; student loan as an educational expense, $50.00; and insurance $108.60.
Plaintiff argues defendant makes $100,000.00 yearly. She correctly points out she did not include any amount for income taxes or child support on her expense sheet and she did not receive any substantial assets in the partition. Plaintiff asserts she has debts of $57,000.00. She had been supported by her family but claims she has made a. good faith effort to support herself and applied for Social Security disability benefits.
It is within the sound discretion of the district court to allow and fix the amount of alimony, to be exercised not arbitrarily or willfully but with regard to what is just and proper under the facts of the case. Prestenback v. Prestenback, 2008-0457 p. 5 (La. App. 1st Cir. 11/18/08), 9 So.3d 172, 176. Such awards should not be disturbed absent a clear abuse of that discretion. Prestenback, 2008-0457 at p. 5, 9 So.3d at 176. The factors set forth in La. C.C. art. 112(B) to be considered in determining the amount and duration of final support are as follows:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(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.
A claim for spousal support is governed by La. C.C. arts 111 and 112. "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. Prestenback, 2008-0457 at p. 8, 9 So.3d at 178. This includes mortgage payments, utilities, and other related expenses. Prestenback, 2008-0457 at p. 8, 9 So.3d at 178. Expenditures for newspapers, gifts, recreation, vacation, and church tithes are not to be considered in awarding permanent, alimony, Prestenback, 2008-0457 at p. 8, 9 So.3d at 178. Similarly, expenses attributable to entertainment, including cable television service, are not necessary for a spouse's maintenance and should not be considered in fixing permanent alimony. Prestenback, 2008-0457 at p. 8, 9 So.3d at 178. The term "maintenance", while meaning [p]rimarily food, clothing and shelter, does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses, and the income tax liability generated by the alimony payments made to the former wife. Prestenback, 2008-0457 at p. 8 fn. 4, 9 So.3d at 178 fn. 4. Social security disability benefits are income for purposes of computing spousal support. Prestenback, 2008-0457 at p. 13, 9 So.3d at 181.
The trial court did not simply award the amount of the deficiency shown on plaintiff's income/expense affidavit, but awarded plaintiff a greater amount. The court apparently considered additional items in calculating the parties' needs and means: the $160.65 child support obligation and a $30,456.00 portion of plaintiff's fixed debt of $57,000.00. Moreover, because plaintiff did not include her income tax liability based on alimony payments, the court apparently included support for that liability. Defendant's income tax return shows income of $102,076.00 in 2009 and total gross monthly income on his affidavit of July 23, 2012 of $7,400.00 per month. Based upon all of the factors considered by the court, we cannot say the court abused its discretion in awarding this amount of spousal support. This assignment of error is without merit.
Plaintiff listed fixed debt owed to Bill Mims (her brother-in-law) as $9,361.00, $21,095.00 to Don Kilcrease (her father), $1,730.00 for her student ioan, and $25,000.00 for a judgment on her Discover credit card. The record contains a March 19, 2009 judgment by Discover Bank, issuer of the Discover Card, against plaintiff for $16,421.34 together with legal interest from December 10, 2008, together with twenty-five percent of the amount of principal and interest as attorney's fees and costs. We note that the Discover card debt and the student loan debt were included in the partition judgment.
Defendant claims the court should have found plaintiff was unable to work or order the support to be periodic pending a possible award of Social Security disability benefits. Defendant asserts that the trial judge's assessment of plaintiff's income for child support purposes at minimum wage shows he believed she was able to work. Defendant also contends Dr. Moturu testified plaintiff would have difficulty holding a job, not that plaintiff was totally unable to work. The medical records showed plaintiff applied for disability benefits in October 2011. There is no evidence in the record that plaintiff was receiving social security benefits at that time. Defendant's contention is without merit because if plaintiff is awarded Social Security disability benefits, he can then file a motion to modify or terminate spousal support pursuant to La. C.C. art. 114.
Plaintiff's attorney commented that her claim to Social Security benefits, was denied. but her appeal of the denial was pending.
CHILD SUPPORT
Defendant contends the trial court erred in failing to reduce or terminate child support when plaintiff was living in Georgia. Defendant asserts that after he filed his motion to terminate in December 2010. Harrison was clearly living with him full-time.
La. R.S. 9:311(A)(1) provides, "An award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award." To obtain a reduction in support, the change in circumstances must be material, defined as a change in circumstances having real importance or great; consequences for the needs of the child or the ability to pay of either party. La. R.S. 9:311, comment (a) What constitutes a change in circumstances is determined on a case-by-case basis and falls within the great discretion of the trial court. Folse v. False, 2001-0946 p. 3 (La. App. 1st Cir.5/10/02), 818 So.2d 923, 925 On appeal a trial court's child support order will not be reversed except for abuse of discretion. However, as in any other case, on appellate review of a trial court's factual findings, those findings of fact are subject to the manifest error standard of review. Harang v. Ponder, 2009-2182, p. 20 (La. App. 1st Cir.3/26/10), 36 So.3d 954, 967, writ denied, 2010-0926 (La.5/19/10), 36 So.3d 219.
Plaintiff testified she was returning to Louisiana from Georgia with Harrison during Christmas 2010 when defendant told her he would not let Harrison move to Georgia with her. According to plaintiff; she then returned to Baton Rouge and attempted to find a job. She testified she lived with her aunt and uncle in Baton Rouge in January and had no records of any housing or bills in Louisiana for that time. She then moved in with her cousin in Walker during February. However, defendant testified he had custody of Harrison in December 2010, and when plaintiff moved back from Georgia in March 2011 they started equal shared custody.
We cannot say the trial court abused its discretion in denying defendant's motion to reduce or terminate child support. We cannot say defendant met his burden of proving a material change in circumstances because the trial judge apparently believed plaintiff's testimony that she returned to Louisiana in January 2011 and discredited defendant's testimony that plaintiff returned in March 2011, such that plaintiff would have exercised custody over Harrison during those two months. Moreover, defendant never affirmatively testified Harrison was living with him full-time. Rather, defendant testified he had custody of Harrison in December 2010 and in March 2011, he and plaintiff began sharing equal custody. While defendant contends plaintiff presented no evidence of full custody of Harrison in January and February, defendant had the burden of proving the circumstances had materially changed. Defendant's assignment of error regarding child support has no merit.
ARREARAGES
Defendant contends the trial court erred in failing to give him credit for mortgage payments he made while plaintiff was occupying the former matrimonial residence. Defendant claims only payments from May 2010 through January 2012 were included in the partition process. However, while the January 25, 2012 detailed descriptive list submitted by defendant showed mortgage payments by defendant of $27,736.50 from May 2010 through January 2012, at the July 24, 2012 hearing on the partition, defense counsel asserted that defendant had paid $35,047.20 as of that time. The judge stated if the parties could not agree on the amount defendant paid, he was inclined to split the difference. The partition judgment shows mortgage payments of $31,000.00, and the parties did agree to "split the difference" between the $27,736.50 amount and the $35,047.20 amount to cover mortgage payments from May 2010 through July 2012. Because the debt was a community debt, defendant was credited with half of $31,000.00. Therefore, defendant already received credit for the mortgage payments he made in the community property partition proceeding. This assignment of error has no merit.
VISITATION
Defendant contends the court'erred in awarding plaintiff visitation every other weekend from 6:00 p.m. on Friday until 6:00 p.m. Sunday because she lives in Georgia. The plan requires plaintiff to give defendant seven days' notice if she will not exercise her visitation. Defendant asserts that the court should have used the plan fashioned by this Court in Trahan v. Kingrey, 2011-1900 p. 1 (La. App. 1st Cir.5/4/12), 98 So.3d 347, 363-364 writ denied, 2012-1586 (La.8/1/12), 92 So.3d 351, wherein the out-of-state mother was entitled to visit with the child outside of Louisiana once a month while he was not in school for thirty consecutive hours scheduled at least ten days in advance. The mother in Trahan was entitled to visit in the state on any Saturday and/or Sunday and/or school holiday she chose if she gave the father written notice at least ten days in advance, returned the child to the father at least twelve hours before he was to report to school and did not interfere with the father's Christmas- and/or New Year's holiday visitation period and summer school vacation. Trahan 2011 - 1900 at p. 1.98 So.3d at 363-364.
Every child custody case must be viewed in light of its own particular set of facts and circumstances. Elliott v. Elliott, 2010-0755 p. 6 (La. App. 1st Cir. 9/10/10), 49 So.3d 407, 411, writ denied, (La. 10/27/10), 2005-1547 (La. 7/12/05), 905 So.2d 293. The trial court is in the best position to ascertain the best interest of the child given each unique set. of circumstances. Elliott, 2010-0755 at p. 7, 49 So.3d at 411-412. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Elliott, 2010-0755 at p. 7, 49 So.3d at 412.
When parents share joint custody of children, La. R.S. 9:335 requires an implementation order to be rendered (except for good cause shown), which allocates each party's physical custodial time periods, as well as the legal authority and responsibility of the parents. Elliott, 2010-0755 at p. 15, 49 So.3d at 416-417. Louisiana Revised Statute 9:335(A)(2)(a) and (b) requires frequent and continuing contact with both parents, and to the extent that it is feasible and in the best interest of the children, that physical custody of the children be shared equally. The trial court is imbued with much discretion in the determination of what constitutes feasible, reasonable time periods of physical custody of the children. Elliott, 201.00755 at p. 15.49 So.3dat417.
Plaintiff's address on her in forma pauperis form filed in the record on February 1, 2013 is listed as Hephzibah, Georgia, which is a suburb of Augusta, Georgia; however, plaintiff testified that she lived in Calhoun, Georgia, so she could take care of her sick mother. (Plaintiff's sister testified that. Calhoun is forty-five minutes to an hour north of Atlanta and three and a half hours from Augusta.) While it is unclear whether plaintiff is in Hephzibah or Calhoun or alternating between both, she is outside the state of Louisiana. However, she could engage in visitation with Harrison by staying in Louisiana with relatives, and she is able to cancel her visitation with reasonable notice to defendant. We cannot say the trial court abused its discretion in allowing plaintiff the opportunity to visit her fourteen year old son twice a month and on alternating holidays where she could exercise her visitation within the state of Louisiana. Therefore, defendant's assignment of error concerning visitation has no merit.
CONTEMPT
Defendant contends the court erred in finding him in contempt for failure to pay child support and spousal support because he did not willfully violate any court order. He admits he failed to make some support payments, but claims he did so after plaintiff moved to Georgia and he filed his motion to terminate or reduce his support payments. He asserts that when plaintiff began assuming custody of Harrison, he resumed making child support payments. Defendant thought the household expenses he paid plaintiff for the children were sufficient to cover his support payments. He also believed spousal support payments would cease after one year and plaintiff had a job and a free place to stay in Georgia.
A constructive civil contempt of court includes the "[w]illful disobedience of any lawful judgment, order, mandate, writ, or process of the court." La. C.C.P. art. 224(2). A finding that a person willfully disobeyed a court order in violation of article 224(2) must be based on a finding that the person violated an order of the court intentionally, knowingly, and purposefully, without justifiable excuse. Carollo v. Carollo, 2013-0010 p. 15 (La. App. 1st Cir. 5/31/13), 118 So.3d 53, 64. The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order, and the court's decision should be reversed only when the appellate court discerns an abuse of that discretion. Boyd v. Boyd, 2010-1369. p. 14 (La.App. 1st Cir. 2/11/11), 57 So.3d 1169, 1178. However, the trial court's predicate factual determinations are reviewed under the manifest error standard of review, Boyd, 2010-1369 at p. 15, 57 So.3d at 1178.
Defendant filed his motion to reduce or terminate support in December 2010 and failed to pay child support for January 2011, February 2011, half of March 2011 (when he had Harrison), and half of August 2011; he previously failed to pay January and February 2010 and half of April 2010. He failed to pay spousal support from December 2010 through December 2012. Plaintiff testified that in December 2010, she had a conversation with defendant about why he was not paying her support. According to plaintiff, defendant said he had no money to pay her, he did not care if he was put in jail, and he was not giving her any more money.
The trial court did not abuse its discretion in finding that defendant intentionally, knowingly and purposefully, without justifiable excuse, violated the court's order to pay support. We find no merit in this assignment of error.
CONCLUSION
For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed to defendant, William Bond.
JUDGMENT AFFIRMED.
RHONDA KAY KILCREASE BOND
VERSUS
WILLIAM KEITH BOND
2013 CA 1733
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J., DISSENTS IN PART AND ASSIGNS REASONS.
HIGGINBOTHAM, J.
I respectfully dissent in part from the decision of the majority. Louisiana Civil Code article 112 A provides, when a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support. (Emphasis added.) Mr. Bond introduced into evidence a "Financial Affidavit" demonstrating that after subtracting his monthly expenses from his net income, he had $46.75 per month remaining.
During cross examination, Mr. Bond was briefly questioned about his expenses. First, Mr. Bond was asked why his transportation and gas costs were so expensive, and he testified that it was because he lived thirty miles from work. Second, Mr. Bond was asked if the amount he claimed he paid for insurance was correct and Mr. Bond testified that it was. Otherwise, his expenses were not disputed.
The trial court made no specific findings regarding the parties' financial situation and awarded the same amount Mr. Bond stipulated to pay for interim spousal support. The trial court failed to consider Mr. Bond's means when determining the award. The record simply does not support the trial court's conclusion that Mr. Bond has the "ability to pay" $1600.00 per month in final spousal support. Thus, such an award is an abuse of discretion. For these reasons, I respectfully dissent from the majority opinion affirming the trial court's award of final spousal support.
Mr. Bond agreed to pay Ms. Bond $1600.00 a month in interim spousal support, however, at that time; he did not have a mortgage payment, was living with his parent and the parties' son was not living primarily with him.
--------
Further, Mr. Bond should have been given a credit toward the arrearages for child support. Ms. Bond voluntarily placed custody of Harrison with Mr. Bond for three months, and Mr. Bond provided full support for him at that time. Therefore, Mr. Bond should have been given a credit for that three month period against the arrearages. See Palmer v. Palmer, 95-0608 (La. App. 1st Cir. 11/9/95), 665 So.2d 48, 51.
In all other respects, I concur with the decision of the majority.