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West v. West

Court of Appeals of Louisiana, Second Circuit

November 15, 2017

KIM RUTH TRIPLETT WEST Plaintiff-Appellant
DENNIS ROY WEST Defendant-Appellee

         Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 57, 519 Honorable Thomas W. Rogers, Judge

          CODY W. RIALS, APLC for Appellant

          GOFF AND GOFF ATTORNEYS Shelley A. Goff for Appellee

          Before MOORE, PITMAN, and GARRETT, JJ.

          PITMAN, J.

         Plaintiff-Appellant Kim Ruth Triplett West appeals the trial court's judgment in favor of Defendant-Appellee Dennis Roy West. For the following reasons, we affirm.


         On March 13, 2015, Ms. West filed a petition for divorce pursuant to La. C.C. art. 102 and partition of community property. The parties married on August 22, 1980, and have one adult child. Alleging that she suffers from retinitis pigmentosa, a hereditary degenerative eye disease, Ms. West requested interim spousal support and final periodic support. She stated that she was free from fault in the dissolution of the marriage and that Mr. West has the ability to pay the requested support.

         On May 6, 2015, Mr. West filed an answer and reconventional demand. He stated that Ms. West holds a degree in accounting, is a licensed certified public accountant and is capable of self-support. He alleged that Ms. West's eye condition has not and will not in the near future interfere with her ability to be gainfully employed and self-supporting. He contended that she has or will have substantial separate property to support herself and that she cannot show that she is in need of support. On December 14, 2015, the trial court signed a judgment of divorce.

         A hearing on the issue of spousal support was held on August 26, 2016. Ms. West testified that she and Mr. West were married for 35 years and have one adult son. She submitted an affidavit of her income and expenses, which reflected that she had no income. She explained that her income previously came from DKK, a Subchapter S corporation that she established with Mr. West, that engages in government defense contracts involving systems engineering. She stated that she owns 100 percent of the stock in DKK and that she and Mr. West are its only employees. She further stated that her role in the company is administrative work and accounting, while Mr. West secures the contracts. She noted that DKK's business has declined and that without DKK she has no income. She also noted that because of the uncertainty of DKK's future due to the community property partition, she sought other employment by sending out resumes and attending interviews, but had not been offered a job. She admitted that it would make sense for Mr. West to get DKK in the partition because of his expertise in obtaining contracts. Ms. West testified that she is 56 years old and was diagnosed with retinitis pigmentosa when she was 21 years old. This condition is a degeneration of the rods and cones in the retina, there is no treatment for it and it ultimately leads to blindness. She stated that she has been instructed by a physician not to drive. She currently lives with her father, who provides her transportation. Her condition affects her on a day-to-day basis in that she lacks independence, bumps into things, does not see things, has problems reading, cannot drive and has difficultly in crowds. Her condition also affects her work in that she never knows what days she will be able to work, she suffers eye fatigue from spending too much time on the computer and she struggles to read certain numbers. She noted that she also cannot see in the dark and that her eyes strain to adjust to different lighting. She testified about the expenses listed in her affidavit. She stated that she currently lives rent-free with her father and that the house she plans to move into (the "Jonesboro house") is paid for and unencumbered. She noted monthly expenses for lawn care, a maid, food and household supplies, clothing, maintenance, gas and oil, utilities, laundry, personal grooming, health insurance, prescriptions, over-the-counter medication, routine medical exams, new prescription glasses, life insurance, gifts to others, entertainment, hobbies and charitable contributions. She stated that her father gifted her a car, so she does not have a car note. She also listed an expense of $1, 200 per month to hire a driver. She stated that she pays utilities on the Jonesboro house, but does not pay utilities at her father's house. She also testified about her standard of living during the marriage. She stated that when DKK was doing well, Mr. West allowed her and their son to buy whatever they wanted. She stated that they lived a comfortable lifestyle and that they hired people to do chores rather than do them themselves. She noted that their community property partition is still pending and that the largest cash assets are the 401(k)s.

         On cross-examination, Ms. West discussed her duties at DKK and that she earned $60, 000 per year for 2013, 2014 and 2015. She stated that she has lived rent-free with her father on and off since 2012 and that he pays for utilities, but she pays for her groceries. She admitted that she could rent out the Jonesboro house, which would remove expenses like utilities and lawn care, but explained that she did not intend to always live with her father. She discussed the difference between the amount of charitable donations listed on her tax returns (e.g., $2, 400 in 2014) and the $600 per month she listed on her affidavit, noting that she sometimes paid in cash and did not write off every contribution.

         The parties stipulated to the submission of the deposition of Dr. Gary Avallone, an optometrist, who testified that Ms. West has been his patient since 2002. He stated that she has been diagnosed with retinitis pigmentosa, an inherited degenerative disease wherein the retina gradually ceases to function in affected areas. He stated that at her examination in March 2015, her visual acuity was measured at 20/40 in each eye, but that the visual fields were very constricted, exhibiting 10 to 15 degrees of complete visual field in each eye. The typical visual field will range from 70 degrees to the nasal side to 90 degrees on the temporal side. He testified that if an object is not directly in front of Ms. West, she will have great difficulty seeing it. He further testified that her future experiences with this condition will vary. Most patients with retinitis pigmentosa completely lose their sight, but some maintain a limited visual field. Ms. West may need some help to do general day-to-day tasks and may need low vision aids. He stated that she should not be driving. On cross-examination, he testified that Ms. West can work depending on the types of tasks required. There are aids available, specifically magnification, to assist her in using a computer.

         On cross-examination, Mr. West testified that he now lives in Arizona and is married to Debbie Ocasio. He stated that he and Ms. West incorporated DKK in 2000 and that he was responsible for obtaining contracts for the business. He discussed his employment with Syndetics and that he deposited his payments from Syndetics into a separate account. He noted that he formed an LLC after his divorce from Ms. West. He discussed his income and expense affidavit, stating that he lives in a house owned by Ms. Ocasio and that he pays half of the monthly mortgage. He has paid no spousal support to Ms. West, but opined that she has been "very liberal" with the amount of money she spends. He further stated that they lived a comfortable lifestyle from 2000 until their separation. He testified that he is a pilot and that DKK owns an airplane. On direct examination, he indicated that his monthly income is $9, 421, which he calculated by averaging his monthly income from the preceding 19 months.

         On November 4, 2016, the trial court filed its judgment and reasons for judgment. It detailed Ms. West's income and concluded that her income will remain at $5, 000 per month for 2016. It considered her eye condition and determined that it does not currently preclude her ability to earn a living working for DKK. It noted that the total loss of eyesight is a possibility for Ms. West, but was presently only conjecture. It also considered her needs as set forth in her affidavit of income and expenses. It found that her listed housing and utility expenses do not constitute living expenses to be considered for spousal support because she lives with her father. It further found that her transportation expenses should not be considered because her father drives her and the driving service expense she listed is too speculative. It determined that $600 per month, rather than $800, is a more reasonable amount for entertainment and gifts to others based on the parties' pre-divorce lifestyle and the evidence presented at trial. It found that $300 per month, rather than $600, was a more reasonable amount for charitable giving based on the contributions documented in her tax returns for 2012, 2013 and 2014. It further found other listed expenses to be reasonable and determined that her monthly expenses total $2, 560. It also considered Ms. West's standard of living, noting that since 2012, she lived with her father out of choice, not necessity. It stated that she enjoyed a very modest lifestyle while living with her father as he provides a home, utilities and transportation. Although testimony was provided that the Wests owned an airplane, an airplane hangar and other items that suggest an expensive lifestyle, there was no evidence that this was the standard of living Ms. West chose while living with her father. It noted that she had access to community funds and could have lived a more expensive lifestyle had she so chosen. It determined that Ms. West is not entitled to interim spousal support because her income exceeds her expenses without any effect on the lifestyle she enjoyed since 2012 and that she is not entitled to final periodic support at this time. It stated that she has an income from DKK of $5, ...

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