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Hight v. Hight

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

RODNEY P. HIGHT
v.
LISA LYNN MCKENZIE HIGHT

         APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 62-194, DIVISION "B" Honorable Michael D. Clement.

          Wiley J. Beevers Shayna Beevers Morvant Steven Michael Mauterer BEEVERS & BEEVERS, L.L.P. Wiley J. Beevers Shayna Beevers Morvant Steven Michael Mauterer BEEVERS & BEEVERS, L.L.P.

          David M. Prados Robert C. Lowe LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P. COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore

          Tiffany G. Chase Judge.

         Plaintiff/Appellant, Lisa Lynn McKenzie Hight (hereinafter "Mrs. Hight") seeks review of the trial court's judgment awarding her interim spousal support and Defendant/Appellee, Rodney P. Hight's, (hereinafter "Mr. Hight") rule for rental reimbursement for Mrs. Hight's use and occupancy of the matrimonial domicile. Specifically, Mrs. Hight lists the following assignments of error on appeal: (1) The trial court failed to award the full amount requested for interim spousal support using Mrs. Hight's income and expense sheet; (2) excluded her expert from testifying at the hearing for interim spousal support; (3) failed to first provide a monetary amount on the spousal support due to Mrs. Hight and then failed to calculate the monetary amount of credits due to Mr. Hight; (4) failed to award legal interest on interim spousal support; (5) failed to deny Mr. Hight's request for rent and failing to rule on the request for rent contemporaneously with the use and occupancy; (6) and failed to find Mr. Hight did not prove a rental value at trial. For the reasons set forth below, we amend the judgment as to the issue of legal interest and in all other respects, we find the trial court did not abuse its discretion and affirm.

         Facts and Procedural History

         The Hights were married on November 2, 1990. Mr. Hight filed for divorce on May 14, 2015. On August 19, 2015, he filed a supplemental petition for divorce pursuant to La. Civ. Code art. 103. Mrs. Hight answered the petition and filed a reconventional demand in which she sought interim spousal support, use and occupancy of the matrimonial domicile, or, alternatively, rental reimbursement. Mr. Hight answered Mrs. Hight's reconventional demand on May 29, 2015, and sought rental reimbursement for the first time. The trial court granted the divorce on October 6, 2015.

         On January 29, 2016, Mrs. Hight's request for interim spousal support and use and occupancy of the former matrimonial domicile were partially tried. The trial resumed to conclusion on October 31, 2016, with Mr. Hight's rule to establish rental factor being set for trial on the same date.

         During the trial, the parties presented conflicting testimony regarding Mrs. Hight's monthly expenses in support of her interim spousal support claim.[1] For example, Mrs. Hight listed expenses for her gasoline bill at $400.00 a month. At trial, she testified that during the marriage she did not generally drive far, even when she worked, as her office was nearby. However, Mrs. Hight has not worked since January 2015. While there were some months Mrs. Hight would drive to their vacation home in Alabama, she acknowledged that she did not routinely drive thousands of miles a month.

         Regarding her vacation expenses, Mrs. Hight testified that over the last three years of the marriage, she and Mr. Hight, along with their children and sometimes friends, would take vacations to locations such as London and Paris. She arrived at the amount of her portion of those vacations by dividing the total amount of the vacation costs of her portion (twenty five percent) by twelve months to arrive at $563.00 per month for vacation expenses. She testified that while she also claims $867.00 per month on restaurants, she does not usually dine alone. Mrs. Hight stated that she and her mother take turns paying for the restaurant bill when they dine together. Likewise, while she claimed $200.00 per month in maintenance costs for her vehicle, she acknowledged she had no receipts or credit card charges to specifically support that monthly estimate. The trial court declined to award support for these expenses.

         In contrast, while Mrs. Hight acknowledged that she would prepare food for her adult children on occasion or send food back with them to school, she testified that she spent $867.00 a month on groceries for herself. The trial court accepted this testimony and awarded this expense [food] in the judgment, along with her expenses for rent, lawn care, electricity, gas, water, cable television, phone, and cell phone.

         As to the credit awarded to Mr. Hight, testimony was presented at trial that he paid numerous expenses. Mr. Hight testified that he would deposit money into their joint checking account; then, Mrs. Hight would write checks to herself for cash. Mr. Hight maintained that he continued to deposit money into the joint checking account in the months after filing for divorce. At some point during their separation, Mr. Hight submitted that he opened a separate account to pay those same bills because the joint account was continually overdrawn due to actions by Mrs. Hight.

         The trial court allowed the parties to file post-trial briefs and issued the judgment on March 15, 2017. The trial court determined that Mrs. Hight failed to satisfy her burden of proof on entitlement to all the categories listed on her income and expense sheet for interim spousal support. Specifically, the court found no merit to Mrs. Hight's claims for restaurants, gas [gasoline], clothing, grooming, household supplies, recreation, vacation and health insurance, except as to an award of $2, 568.00 to Mrs. Hight for six months of COBRA insurance payments. The trial court awarded interim spousal support to Mrs. Hight from May 15, 2015 to April 3, 2016 for the following monthly expenses: rent, lawn care, electricity, gas, water, cable television, phone, cell phone and food and found that Mr. Hight was entitled to receive a credit for the prior payment of these expenses. The judgment did not provide a monetary award amount for Mrs. Hight's interim spousal support award, or for Mr. Hight's credit. The trial court found, based on testimony and evidence, that Mr. Hight continued to pay for some of Mrs. Hight's expenses after filing for divorce, including the mortgage payment for the matrimonial domicile, along with various other expenses, including utilities, taxes, groceries, cell phone bills and Mrs. Hight's credit card bills.

         This appeal from Mrs. Hight follows.

         Interim Spousal Support

         A trial court's determination of an interim spousal support award will not be disturbed unless there is a clear abuse of discretion.[2] If the trial court record supports the trial court's reasoning and conclusions regarding the means of the payor spouse and his or her ability to pay, no abuse of discretion will be found.[3]Factual findings by the trial court will not be set aside unless there is manifest error.[4]

         La. Civ. Code art. 113 provides for interim spousal support "based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage." The purpose behind interim spousal support is to ensure that the parties maintain the status quo enjoyed during the marriage while the divorce is pending.[5]The spouse seeking interim spousal support bears the burden of proving his or her entitlement to such support.[6] In order to establish that need, it must be shown that the requesting spouse lacks sufficient income to preserve the standard of living they ...


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