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Morgan v. Morgan

Court of Appeal of Louisiana, Second Circuit

November 19, 2014

MARGIE B. MORGAN, Plaintiff-Appellant
v.
JAMES STUART MORGAN, Defendant-Appellee

Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana. Trial Court No. 99339. Honorable Michael E. Lancaster, Judge.

S. DOUGLAS BUSARI & ASSOCIATES, By: S. Douglas Busari, Counsel for Appellant.

MULHEARN & SMITH, By: LeRoy Smith, Jr., Counsel for Appellee.

Before BROWN, STEWART and CARAWAY, JJ.

OPINION

Page 558

[49,476 La.App. 2 Cir. 1] STEWART, J.

The plaintiff, Margie B. Morgan (" Margie" ), appeals a judgment granting the

Page 559

peremptory exceptions of prescription and no cause of action filed by the defendant, James Stuart Morgan (" James" ), in response to her rule to collect alleged past due payments of child support and expenses. For the reasons set forth in this opinion, we find that the trial court erred in sustaining the exception of no cause of action, and we remand for a rehearing of the exception of prescription.

FACTS

On October 18, 2013, Margie filed a rule for contempt in which she alleged that on October 18, 1999, the district court ordered James to pay child support in the amount of $450 per month beginning that date and further ordered him to pay half of the costs of their children's extracurricular activities and automobile expenses. Two children were born of the marriage, and both are now adults. Margie alleged that James was in arrears for child support in the amount of $43,620 and for expenses in the amount of $47,574. To satisfy the alleged delinquency, she requested attachment of James's share of the proceeds from a proposed sale of real estate owned by his family. She attached a copy of the October 18, 1999, divorce judgment to her petition.

The divorce judgment did not include a fixed amount for child support. Instead, it provided that " all agreements of the parties as to child support are herewith approved, recognized, and rendered executory." The divorce judgment ordered James to pay half the costs related to the children's extracurricular activities " on a month to month basis upon [49,476 La.App. 2 Cir. 2] presentation of an itemization of such expenses." Lastly, the divorce judgment ordered James to pay half the purchase price and upkeep of any automobile bought for the children's use and all of the automobile insurance.

James responded to the rule for contempt by filing exceptions of prescription, no cause of action, and no right of action. He argued that part of the claim for child support arrearages had prescribed under La. C. C. art. 3501.1 and that Margie had not submitted bills for payment of expenses as required by the divorce judgment.

In opposition to the exception, Margie argued that prescription did not begin to run until the last payment made by James pursuant to the judgment. She further argued that prescription was interrupted by his sporadic payments and by his acknowledgment of the child support and expenses owed. She referred to an exhibit " M1," ...


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