ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 522-207, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.
ROBERT C. LOWE, DAVID M. PRADOS, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
MARC D. WINSBERG, ROBIN PENZATO ARNOLD, JONATHAN D. GAMBLE, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg.
JUDE G. GRAVOIS, J.
[14-670 La.App. 5 Cir. 2] In this domestic matter, both parties, former spouses Susan Folse McClanahan (" Ms. Folse" ) and Jack McClanahan (" Mr. McClanahan" ), have appealed the trial court's judgment ordering Mr. McClanahan to pay Ms. Folse child support in the amount of $4,350.00 per month and final periodic spousal support in the amount of $2,275.00 per month. The judgment was rendered on June 20, 2007, but was made retroactive to March 28, 2003. Both parties timely filed motions for a new trial, which were not ruled upon until May 28, 2013. Ms. Folse's motion for a new trial was granted in part (ordering Mr. McClanahan to pay Ms. Folse's medical costs and prescription medication costs not covered by insurance, in addition to the monthly final periodic spousal support payment and the costs of her medical insurance); otherwise, both motions for a new trial were denied. These timely appeals followed.
After thorough review of the extensive record of this proceeding, for the following reasons, we find that the trial court's award of child support is not an abuse of discretion, as it is clearly supported by the evidence, and is therefore [14-670 La.App. 5 Cir. 3] affirmed. We further find that the trial court did not err in finding that Ms. Folse is entitled to final periodic spousal support, and that the amount awarded is not an abuse of discretion, as it is clearly supported by the evidence, and is therefore affirmed. However, we find that the trial court erred in making these awards retroactive, and thus amend the judgment to make the awards effective as of June 20, 2007, the date the judgment was rendered and signed. As amended, we affirm.
This case has a very long and contentious history. The parties were married on January 23, 1988. Their daughter,
Elizabeth, was born on June 1, 1989. Ms. Folse filed for divorce on March 25, 1998. A judgment of divorce was rendered on January 21, 1999.
On April 30, 1998, shortly after Ms. Folse filed for divorce, by letter executed by their counsel, the parties entered into an " interim agreement" regarding interim child support, temporary spousal support, and other expenses. The " interim agreement," which was not entered as a judgment of the court, stated that it would " remain in place until we either reach an agreement or have the matter determined by the court." On February 4, 1999, Mr. McClanahan filed a motion to establish permanent child support and determine Ms. Folse's entitlement to permanent alimony (now known as final periodic spousal support). The parties agreed, however, to litigate their community property partition proceeding prior to litigating their support issues.
The parties' community property partition proceeding was duly litigated and a judgment was rendered therein on March 5, 2002. That judgment was appealed [14-670 La.App. 5 Cir. 4] to this Court, which affirmed in part, reversed in part, amended in part, and rendered. See McClanahan v. McClanahan, 03-1178 (La.App. 5 Cir. 4/14/04), 868 So.2d 844 (on rehearing), writs denied, 04-1175 (La. 9/3/04), 882 So.2d 609.
In the meantime, after the community property partition judgment was rendered, but prior to the finality of the appeal thereon, trial on the support issues was conducted over the course of several days in 2002 and 2003. Post-trial briefs were filed on September 5, 2003, after which the matter was submitted for judgment and taken under advisement. Judgment was not rendered until June 20, 2007. The judgment ordered Mr. McClanahan to pay Ms. Folse $4,350.00 per month in child support, plus the continued direct payment of Elizabeth's school tuition and the costs of any of Elizabeth's uncovered health and dental expenses. The judgment also ordered Mr. McClanahan to pay final periodic spousal support to Ms. Folse in the amount of $2,275.00 per month, plus the costs of her health insurance. Both awards were made retroactive to March 28, 2003.
Both parties timely filed motions for a new trial. On May 28, 2013, the trial court
ruled on the motions for a new trial, denying Ms. Folse's motion for a new trial in part regarding the amounts awarded for child support, granting Ms. Folse's motion for a new trial in part regarding final periodic spousal support (ordering Mr. McClanahan to additionally pay Ms. Folse's medical costs and prescription medication costs not covered by insurance), and denying both parties motion for a -5- [14-670 La.App. 5 Cir. 5] new trial regarding the issue of the effective date and/or retroactivity of the awards. Both parties thereafter timely filed motions for appeal.
On appeal, Mr. McClanahan argues that given his W-2 salary of $60,000.00 per year, the trial court erred in setting the amount of child support due Ms. Folse, and accordingly, said amount should be reduced. Regarding the final periodic spousal support award, Mr. McClanahan argues that Ms. Folse is not entitled to final periodic spousal support, and accordingly, the award therefor should be reversed. Alternatively, he argues that the amount of final periodic spousal support awarded should be reduced significantly, again given his W-2 salary. He also seeks reimbursement from Ms. Folse for the difference between the spousal support he paid to her under the " interim agreement" and the amount awarded in the June 20, 2007 judgment, which was made retroactive to March 28, 2003.
Ms. Folse argues on appeal that the award of child support was appropriate under the particular facts and circumstances of this case and should not be modified. She also contends that the award of final periodic spousal support should be increased, not reduced, and further that the trial court erred in making March 28, 2003 the effective date of support awards, instead of June 20, 2007, the date the judgment was rendered and signed.
An appellate court may not set aside a trial court's findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La. 1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989). Regarding legal issues, the appellate court gives no special weight to the findings of the trial court, but instead reviews the judgment to determine if it is legally correct or incorrect. Questions of law, therefore, are reviewed by appellate courts [14-670 La.App. 5 Cir. 6] in Louisiana under the de novo standard. Wooley v. Lucksinger, 06-1140 (La.App. 1 Cir. 12/30/08), 14 So.3d 311, 335.
A child support award is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. Dufresne v. Dufresne, 10-963 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 754; Rutland v. Rutland, 13-70 (La.App. 5 Cir. 07/30/13), 121 So.3d 776, 781. Under La. C.C. art. 227, a parent owes an obligation to support, maintain, and educate his or her children; this obligation is a matter of public policy, and the court is to fix the amount of support after considering the needs of the child, as well as the means available to the parent obligated to pay it. Singletary v. James, 02-1074 (La.App. 3 Cir. 2/5/2003), 838 So.2d 115.
Mr. McClanahan argues on appeal that the trial court erred in not applying the guidelines found in La. R.S. 9:315, et seq.,
in order to determine the parties' respective child support obligations. He argues that the trial court erred in finding that he would be able to " generate any income that is needed for the support of his minor child, Elizabeth, and for any other expenses he is ordered to pay," because his income consisted only of his W-2 salary of $60,000.00 per year from International Rental Tools, L.L.C. (" IRT" ), one of his closely-held companies. He argues that the bank that held his companies' loans required that his salary be so restricted, and that he was forced to liquidate assets in order to pay the " exorbitant" interim support amounts. He argues that the trial court erroneously considered those liquidated assets and other numerous assets as income, contrary to applicable [14-670 La.App. 5 Cir. 7] law, and that his businesses were in fact losing money. Mr. McClanahan argues, therefore, that given the meager amount of his salary, the guidelines require that his child support obligation should have been set at $652.00 per month, and that his share of other expenses (such as tuition and health insurance, which he was paying in full under the " interim agreement" ) should be set at 77%, the relative comparison between his and Ms. Folse's income.
At the time the matter was heard, La. R.S. 9:315(C)(4) set forth the definition of " gross income" for purposes of child support awards as follows:
(4) " Gross income" means:
(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, worker's compensation benefits, unemployment insurance benefits, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent's personal living expenses. Such payments include but are not limited to a company car, free housing, or reimbursed meals; and
(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. " Ordinary and necessary expenses" shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses ...