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Pellerin v. Pellerin

Court of Appeals of Louisiana, Third Circuit

June 6, 2018

JEANNE BIENVENU PELLERIN
v.
GILBERT PAUL PELLERIN, JR.

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 125541 HONORABLE LORI LANDRY, DISTRICT JUDGE

          Diane A. Sorola Attorney at Law 402 W. Convent Street Lafayette, LA COUNSEL FOR DEFENDANT/APPELLANT: Gilbert Paul Pellerin, Jr.

          Susan Theall Attorney at Law 1304 Lafayette Street Lafayette, LA COUNSEL FOR PLAINTIFF/APPELLEE: Jeanne Bienvenu Pellerin

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, Marc T. Amy, Elizabeth A. Pickett and Van H. Kyzar Judges.

          JOHN D. SAUNDERS JUDGE

         In this case, we must decide whether the retroactive date of an award of final spousal support is incorrect. We must also decide whether Defendant's rule to modify child support is frivolous and deserving of sanctions.

         FACTS AND PROCEDURAL HISTORY:

         Defendant, Gilbert Paul Pellerin, Jr. ("Mr. Pellerin"), and Plaintiff, Jeanne Bienvenue Pellerin ("Mrs. Pellerin"), married in 1994, separated in 2014, and divorced in 2016. Of their marriage, four children were born, three of whom were under the age of majority at the time of trial. The former community was terminated on December 22, 2014. La. Civ. Code. art. 159.

         The litigation between the parties continued, and on April 24, 2015, pursuant to a provisional support order, Mr. Pellerin was ordered to pay Mrs. Pellerin $4, 572.62 per month in child support effective May 1, 2015. That amount was based on Mr. Pellerin's average gross monthly income of $28, 333.00, and Mrs. Pellerin having no income. Pursuant to that order, Mr. Pellerin was also ordered to pay interim spousal support, without prejudice to either party's right to seek a different disposition of the issues by the court. In addition, a joint custody plan was signed into judgment wherein the parties were granted joint custody of their children with Mrs. Pellerin designated as the domiciliary parent.

         On September 14, 2015, Mr. Pellerin filed a motion to terminate the parties community regime and adjust support based upon the oldest child attaining the age of majority.

         On October 21, 2015, the parties stipulated, via consent judgment, to a modified child support award of $4, 150.00 per month retroactive to September 15, 2015. That amount was based on the oldest child having attained the age of majority, Mr. Pellerin's average gross monthly income of $35, 689.00, and Mrs. Pellerin's imputed monthly income of $1, 257.00. In that judgment, Mr. Pellerin agreed to the continued payments of contractual spousal support on the same terms and conditions as the provisional support order, without prejudice to either party's right to seek a different disposition of the issues by the court.

         On April 15, 2016, Mrs. Pellerin filed a rule for final spousal support. Judgment of divorce was rendered on April 20, 2016.

         On October 17, 2016, Mrs. Pellerin filed a joint motion and order to continue the rule for final spousal support, to which Mr. Pellerin had no opposition. That order states, in pertinent part, (emphasis added):

[T]he parties agree to contractual spousal support on the same terms and conditions as the current interim spousal support order, which will last up and until the issue of Final Periodic Spousal Support is decided through trial or consent judgment. This agreement is made because of extenuating circumstances, and will in no way affect the rights of either party with respect to Final Periodic Spousal Support and is agreed to, by all, in order to keep the status quo during any time after Interim Periodic Spousal Support terminates.

         On December 15, 2016, the parties stipulated, via consent judgment, to a modified child support award of $5, 455.00 per month effective on that date. That amount was based on Mr. Pellerin's average gross monthly income of $43, 960.00, and Mrs. Pellerin's imputed monthly income of $1, 200.00. In that judgment, Mr. Pellerin agreed to the continued contractual spousal support on the same terms and conditions as the current interim spousal support, without prejudice to either party's right to seek a different disposition of the issues by the court

         On January 12, 2017, Mr. Pellerin filed a rule to modify child support, wherein he alleged the following:

(1) His earnings for 2016 included additional shifts at two different hospitals with income derived therefrom totaling about one-third of his salaried earnings without bonuses;
(2) Due to changes in the staffing of the two (2) hospitals providing his extra shifts, he is no longer earning income he had earned previously;
(3) He is burdened with the payment of extraordinary community debt;
(4) His reduced income occurred through no fault of his own;
(5) His ability to earn extraordinary income is outside his normal employment, and there is no method to calculate these ...

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