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Gilardi v. Gilardi

Court of Appeals of Louisiana, First Circuit

August 16, 2017

LORRAINE GILARDI
v.
BENNY P. GILARDI, SR.

         On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana No. 2002-12211, Honorable Dawn Amacker, Judge Presiding.

          Nelson Rivers Covington, Louisiana, Counsel for Plaintiff/Appellant Lorraine Gilardi.

          Roy K. Burns, Jr. Covington, Louisiana, Counsel for Defendant/Appellee Benny P. Gilardi, Sr.

          BEFORE: WHIPPLE, CJ., GUIDRY, AND McCLENDON, JJ.

          McCLENDON, J.

         A former spouse seeks review of a trial court judgment that ordered her ex-husband to pay spousal support arrearages, but limited the arrearages sought because the trial court concluded that the former spouses had compromised all arrearages allegedly due prior to February 2015. For the following reasons, we amend the trial court's judgment and affirm, as amended.

         FACTS AND PROCEDURAL HISTORY

         Lorraine Gilardi and Benny P. Gilardi, Sr., who were married for 43 years, divorced in 2002. In accordance with a consent judgment signed in 2002, the parties agreed that Benny would pay Lorraine an award of final spousal support in the amount of $150.00 per month, plus the premiums of Lorraine's automobile and homeowner's insurance policies. The judgment did not specify the costs of Lorraine's automobile insurance and homeowner's insurance, given that these premiums could change over time. Benny paid Lorraine's automobile insurance directly to the insurance carrier each month, and Benny paid Lorraine directly each month for the monthly pro rata share of the annual homeowner's insurance premium.

         In May 2016, Lorraine filed a "Rule to Compel and for Contempt." The rule to compel concerned certain discovery Lorraine sent to Benny arising from issues related to a supplemental partition.[1] Regarding the rule for contempt, Lorraine asserted that Benny, despite being repeatedly advised that Lorraine's homeowner's insurance had increased, had failed to pay a sufficient amount to cover the increased homeowner's insurance, beginning in 2010. Lorraine alleged that if Benny continued to pay the amount he was paying at the time the rule was filed, Benny would owe a balance of $5, 205.55 by February 2017.[2] Lorraine prayed that the amount sought be made executory, and sought attorney's fees and court costs for preparation and prosecution of the rule.

         At the hearing on Lorraine's rule on September 27, 2016, the motion to compel was resolved by joint stipulation of the parties. In connection with the motion to compel, the parties also agreed that Benny would pay "fees of $500.00 plus court costs."

         At the contempt hearing held that same date, Lorraine testified that due to her strained relationship with Benny, she never discussed spousal support with him. Rather, her friend, Tammy McCauley, was the one who communicated with Benny regarding the amount due for homeowner's insurance. Tammy testified that she would meet Benny each year in February and would show him the homeowner's bill. She further indicated that when the homeowner's insurance increased, she would ask Benny to pay more, and although Benny generally did pay more, "he didn't pay enough." According to Tammy, in February 2015, when the yearly homeowner's insurance increased significantly, Benny stated that he would not pay any additional amount for the homeowner's insurance. Benny did not begin to pay the increased insurance rate of $82.00 per month until August 2016. Moreover, Lorraine admitted that prior to February 2015, she had never told Benny that he was not paying the full amount due because communications were through Tammy.

         Benny testified that he did not know how much in spousal support he had actually paid from February 2010 through February 2015. However, Benny testified that he paid whatever increase Tammy told him to pay until February 2015. When Tammy told Benny about the additional $82.00 per month increase in the homeowner's insurance in February 2015, Benny indicated he did not begin paying an additional amount because he had not been shown proof of the increased sum. Benny testified that when he was shown such proof in August 2016, he began paying the increased amount at that time.

         Following the hearing, the trial court found that Benny was not in contempt of court and that he did not owe any arrearages allegedly due prior to February 2015, insofar as those arrearages had been compromised between the parties. However, the trial court found that Benny owed $1, 558.00 to Lorraine, representing the arrearages in Benny's spousal support payments from February 2015 through the date of hearing. Specifically, the trial court reasoned, in part:

[I]t occurs to the Court that no matter what was meant for a period of time [by the 2002 consent judgment] ... that there were compromises between the parties [from February 2010 through February 2015] as to how much [Benny] was ...

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