Opinion
No. 2007 CA 1527.
August 8, 2008.
APPEALED FROM THE 22ND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY, LOUISIANA CASE NO. 2002-15322 THE HONORABLE MARTIN E. COADY, JUDGE PRESIDING.
Harry P. Pastuszek, Jr., David S. Pittman, Mandeville, Louisiana, Counsel for Plaintiff/Appellant Kenneth D. Lobert.
Frederick S. Ellis, Elena Perez, Victoria Olson, Covington, Louisiana, Counsel for Defendant/Appellee, Kimberly Hutchison Lobert.
BEFORE: GAIDRY, McDONALD, AND McCLENDON, JJ.
NOT DESIGNATED FOR PUBLICATION
In this case involving interim spousal support and reimbursement claims in a community property partition, a husband appeals a trial court judgment interpreting a consent judgment and another judgment relating to reimbursement claims in the partition. We affirm.
FACTS AND PROCEDURAL HISTORY
Kenneth Lobert ("Ken") filed a petition for divorce from Kimberly Lobert ("Kim") on October 28, 2002. Kim filed an answer and reconventional demand seeking interim spousal support on January 24, 2003.
On April 23, 2003, the parties were in court for a hearing on various rules to show cause, including the rule for interim spousal support. The parties entered into a stipulation on the record, which was later reduced to a consent judgment signed by the court on September 22, 2003. The consent judgment read, in pertinent part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [Ken] shall pay spousal support in the amount of $4,000 per month of which he will directly pay $1,497 for the house mortgage and withhold $148 per month for homeowner's and flood insurance on the matrimonial domicile, and additionally, withhold $252 per month for real estate taxes on the home for 2003. Those moneys shall be characterized as spousal support and accordingly, [Ken] shall pay all of those obligations and additionally provide [Kim] with $2,103 per month in cash spousal support in addition to the child support and the other obligations contained herein. These obligations will commence on May 1, 2003. [Ken] hereby waives any and all entitlement to any reimbursement or rental claims he may have had regarding the matrimonial domicile or the payment of any of the expenses related thereto as long as this agreement remains in affect [ sic].
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this court specifically finds that the child support amount as delineated herein is a deviation from the guidelines that has [ sic] been stipulated to, and under the circumstances and in consideration of the allocation of the spousal support and child support, this present agreement is found to be in the best interest of the minor children.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if and when the spousal support is adjusted, the child support may be adjusted without the necessity of showing any change in circumstance whatsoever. The child support will simply be re-calculated in conjunction with any attempt to modify spousal support.
The parties were divorced on September 3, 2003. On February 5, 2004, Kim filed a rule for permanent spousal support. On March 3, 2004, six months from the date of divorce, Ken stopped paying interim spousal support to Kim as ordered by the consent judgment. Kim filed a rule for contempt and a rule to increase child support. On April 10, 2006, the court signed a judgment stating, in part:
3. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Court interprets its September 22, 2003 judgment at the third unnumbered paragraph to mean that the interim spousal support provided for therein shall continue until [Kim] is granted or denied final periodic support. Further, that the waiver by [Ken] of any reimbursement or rental claims he may have had regarding the matrimonial domicile or the payment of any expenses related thereto remains in effect until [Kim] is granted or denied final periodic support;
No appeal was taken from the April 10, 2006 judgment. On August 17, 2006, the court signed a consent judgment relating to the distribution and valuation of certain community assets. This consent judgment also stated that based on the various transfers of community property, Kim's claim for permanent spousal support was denied effective April 20, 2006. The judgment stated that Kim's right to receive interim spousal support under the September 22, 2003 judgment would terminate on April 20, 2006. In a November 3, 2006 judgment, the court found Ken in contempt of the September 22, 2003 judgment for failing to pay the cash portion of the spousal support between April 2004 and April 2006. The total arrearage of $46,312.00 was made executory, and the judgment stated that Ken could purge the contempt prior to the sentencing date set by the court by paying Kim the total amount of the arrearage.
Kim and Ken both filed motions for new trial. Both motions were denied, except that Kim's was granted for the limited purpose of correcting a typographical error as to the amount of reimbursement owed Ken for pre-divorce legal fees.
On January 23, 2007, Ken filed a motion for suspensive appeal from the November 3, 2006 judgment, as amended on January 3, 2007, and a suspensive appeal was granted from that judgment. His brief, however, states that he is appealing from the April 10, 2006, November 3, 2006, and January 23, 2007 judgments. He assigns the following trial court errors:
1. The court erred in interpreting the consent judgment in a way that results in the continuation of interim spousal support beyond 180 days from the judgment of divorce without a showing of good cause.
2. The court erred in declining to award Ken reimbursement for payment of community debts with his separate funds between March 2, 2004 and April 20, 2006.
3. The court erred in declining to award Ken rental value for Kim's occupancy of the family home between March 2, 2004 and April 20, 2006.
4. The court erred in declining to award Ken reimbursement, in accordance with La.C.C. art. 2365, of the net proceeds of the sale of his separate property which was ultimately used to purchase the family home, although the home was allocated to Kim in the community partition.
5. The court erred in awarding Kim reimbursement of $5,755.00 for the use of community property to satisfy Ken's separate obligation.
DISCUSSION
We will first address Ken's assignments of error stemming from the court's April 10, 2006 judgment. A judgment awarding support must be appealed within thirty days. La.C.C.P. arts. 3942 and 3943. However, we find that this judgment of the court, although phrased as a judgment and ordering Ken to pay support under the September 22, 2003 judgment, is actually only an expression of the court's interpretation and how the court planned to rule on an issue at a later date. The court actually made the arrearages executory in a later judgment. We believe that this April 10, 2006 judgment of the court is more akin to an interlocutory judgment, which is defined by Louisiana Code of Civil Procedure article 1841 as one "that does not determine the merits but only preliminary matters in the course of the action." Interlocutory judgments are only immediately appealable when expressly provided by law. La.C.C.P. art. 2083. As such, and because appeals are favored, we will consider the assignments of error stemming from this judgment, even though it was not appealed until more than nine months after it was signed.
According to the terms of the September 22, 2003 judgment, Ken will pay Kim spousal support. There is no termination date in the judgment. The amount of child support awarded in the consent judgment is a deviation from the guidelines, and the consent judgment states that if spousal support is adjusted, then child support will also be adjusted, without the necessity of showing a change in circumstances. Furthermore, the judgment states that Ken's rental and reimbursement claims are waived as long as the agreement remains in effect. It is clear that no specific termination date is intended by this agreement. Under the terms of the agreement, either Ken or Kim could seek to terminate the agreement and seek modifications in spousal or child support; however, as long as the agreement remained in effect, those payments were due and reimbursement and rental claims were waived. It does not appear from the record that Ken sought to have the judgment modified by the court, and the judgment of the court was still in effect when Ken unilaterally stopped payment. Ken argues on appeal that interim spousal support automatically terminates one hundred eighty days from the rendition of the judgment of divorce. However, interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, for good cause shown. La.C.C. art. 113. The fact that the parties entered into a consent agreement providing for payment of spousal support in connection with a number of other provisions, including child support, constitutes good cause for extending interim spousal support. We find no error in the trial court's finding that the judgment called for Ken to continue to pay spousal support beyond one hundred eighty days from the date of divorce.
Turning to Ken's final two assignments of error, Ken asserts that the trial court erred in refusing his claim for reimbursement of the net proceeds of the sale of his separate property which were later used to purchase a community-owned house, and also erred in awarding Kim reimbursement for community funds spent to pay the mortgage on that same separate property of Ken's. Ken asserts that the court cannot both find the evidence insufficient to support his claim and sufficient to support Kim's. We disagree.
The burden of proof is on the spouse claiming reimbursement of the separate funds which he contends were used for the benefit of the community. Rogers v. Rogers, 649 So.2d 7 (La.App. 4 Cir. 1994). Louisiana Civil Code article 2340 creates a presumption in favor of the community. Thus, the burden in this case is on Ken to provide proof, rebutting the presumption in favor of the community and establishing that his separate funds were used for the acquisition of a community asset. To do this, Ken must present evidence showing that the separate funds were in fact used to purchase the community residence. Ken introduced evidence of the sale of the Arkansas house, which was undisputedly his separate property, and receipt of the proceeds of that sale during the existence of the community property regime, but he failed to introduce any evidence that the proceeds of the sale were used to purchase a community residence. Although the evidence shows that Ken received $36,818.75 as the proceeds of the sale of his Arkansas house, and the settlement statement for the purchase of the community home in Texas shows a down payment from the buyer in the amount of $38,305.67, Ken introduced no evidence showing that the $36,818.75 was put towards the down payment on the Texas house or that the proceeds of the sale of the Texas house were put towards the down payment on the parties' community residence in Mandeville. Thus, he failed to prove his entitlement to reimbursement and the trial court was not manifestly erroneous in denying his claim.
Regarding Kim's reimbursement claim, Ken admitted that community funds were used to pay the mortgage on the Arkansas house and that she was due reimbursement for half of those amounts. This claim was not contested at trial. Thus, the trial court did not err in granting her claim for reimbursement.
DECREE
The judgment of the trial court is affirmed. Costs of this appeal are to be borne by appellant, Ken Lobert.