FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 1984-05686,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE
S. Vogeltanz LAW OFFICE OF KEVIN S. VOGELTANZ COUNSEL FOR
Gernhauser, Jr. Dan A. Robin, Jr. Erich Puderer LAW OFFICE OF
DAN A. ROBIN COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge
Tiffany G. Chase.
Rosemary Ledet Judge.
a spousal support dispute. A former wife, Anne Dickerson
(formerly Anne Dickerson Waites), filed a motion seeking
spousal support arrearages against her former husband, Dr.
Thad Waites. Dr. Waites responded with his own motion,
seeking either to terminate his obligation to pay support
based on alleged extra-judicial agreements or, in the
alternative, a $66, 000.00 credit for accelerated spousal
support payments he allegedly made between August 1993 and
May 1996 when Ms. Dickerson attended law
school. From the trial court's judgment
denying both parties' motions and granting Dr.
Waites' alternative request for a credit, Ms. Dickerson
appeals. Finding no manifest error in the trial court's
judgment, we affirm. We deny Ms. Dickerson's peremptory
exception of prescription.
AND PROCEDURAL BACKGROUND
facts in this case are undisputed with one exception-whether
Dr. Waites made the accelerated spousal support payments
between 1993 and 1996. Dr. Waites and Ms. Dickerson married
in 1971; they divorced in 1984. Ancillary to the divorce, the
parties entered into a community property settlement
agreement (the "Settlement"). The Settlement was
incorporated into their divorce decree. Included in the
Settlement was an agreement by Dr. Waites to pay Ms.
Dickerson spousal support in the amount of $1, 000.00 a month
for the rest of her life. The Settlement, however, provided that
Dr. Waite's spousal support obligation would be
terminated if any of the following three events occurred: (i)
Ms. Dickerson remarried; (ii) Dr. Waites became disabled; or
(iii) Ms. Dickerson agreed to the termination "at any
almost three decades (from June 1984 to January 2013), Dr.
Waites complied with his obligation to pay the spousal
support obligation on a monthly basis. During this time, Dr.
Waites remarried; Ms. Dickerson did not. In late December
2012, Dr. Waites' second wife, Gerry Waites ("Mrs.
Waites"), sent Ms. Dickerson an undated, handwritten
note (the "Note"), which stated as follows:
Retirement time has arrived & we are revising budget. I
am hoping you will agree to a decrease in your check to $500
a month through June 2013 & then eliminate it completely.
I know you must be planning a new lifestyle if you
haven't done so already. Time has gone by so quickly!
Hope your year has been a good one & 2013 the same.
Ms. Dickerson failed to respond to the Note, Dr. Waites
implemented the revised payment plan set forth in the Note.
Starting in January 2013, he lowered the monthly payments to
$500 per month. For six months (from January to June 2013),
he paid only $500.00 per month. Starting in July 2013, he
ceased making any spousal support payment.
September 2016, over three years after the payments ceased,
Ms. Dickerson filed a "Motion to Determine and Make
Executory Past-Due Spousal Support and Payments." In her
motion, she sought not only the past due payments but also
attorneys' fees and costs. In support of her motion, Ms.
Dickerson presented her own affidavit in which she attested
to the receipt of the Note and to Dr. Waites' unilateral
implementation of the revised payment plan set forth in the
Note. She further attested that she never agreed to Dr.
Waite's unilaterally ceasing the spousal support
response, Dr. Waites filed a "Motion to Enforce
Extrajudicial Agreement Concerning Spousal Support;
Alternatively, Motion for Credit against Future
Support." In support of his motion, Dr. Waites submitted
his own affidavit in which he attested to the following:
In 1993, Anne [Dickerson] contacted me by telephone, to
advise me of her intention to enroll in law school. At the
time of our divorce, she had expressed her intention to
become completely self-sufficient, so that she would no
longer require any support from me, and she felt that
obtaining a law degree would help her in that endeavor. At
that time, Anne [Dickerson] asked if I would be willing to
increase the alimony payments I was making to her from $1,
000.00 per month to $3, 000.00 per month for the years she
was to attend law school. In exchange, she would relieve me
of my alimony obligation once she became a self-sufficient
Based upon the cordial nature of my relationship with Anne
[Dickerson] up to that point, my desire to assist with
someone's pursuit of higher education, and in reliance
upon Anne [Dickerson]'s representations and promises that
once she completed law school with my financial assistance
and became self-sufficient she would relieve me of my future
alimony obligations, I agreed to the increase in alimony
Waites also submitted the affidavit of Mrs. Waites in which
she attested to the following:
As the family bookkeeper, I primarily wrote the monthly
alimony checks to Anne [Dickerson]. The check amount went
from $1, 000.00 per month to $3, 000.00 per month beginning
in August, 1993, and those continued until Thad [Waites]
received notice from Anne [Dickerson] of her graduation from
Loyola Law School in 1996. At that time, the amount of the
alimony checks were reduced to $1, 000.00 per month.
January 24, 2017, a hearing was held on the motions. At the
hearing, three witnesses testified-Ms. Dickerson, Mrs.
Waites, and Dr. Waites. The testimony of the parties at the
hearing centered on two alleged extra-judicial agreements to
terminate or modify Dr. Waites' spousal support
• An alleged 1993 agreement that Dr. Waites would pay an
extra $2, 000.00 a month during the time that Ms. Dickerson
attended law school that would eventually allow Dr. Waites to
cease payments when Ms. Dickerson became self-sufficient at
some point in the future (the "1993 Agreement");
• An alleged 2013 agreement that Dr. Waites would pay
one-half of the support obligation ($500.00) for six months
and then entirely discontinue paying it, which was the
revised payment plan set forth in the Note (the "2013
gist of Ms. Dickerson's testimony was that the parties
never entered into any extra-judicial modification of the
agreement that Dr. Waites would pay her spousal support for
the rest of her life. Ms. Dickerson confirmed that neither of
the other grounds for terminating the spousal support
obligation had occurred-she had not remarried, and Dr. Waites
had not become disabled.
Dickerson testified regarding her attending law school. In
the fall of 1993, she enrolled in Loyola Law School as a day
school student; in the spring of 1996, she graduated from law
school. In April 1997, she obtained her law license. She did
not work full time while in law school. When asked how she
afforded law school, Ms. Dickerson replied that she "had
about $20, 000 left over from the sale of [her house],"
that she "borrowed the maximum amount that was available
in student loans," and that she lived in a room at a
friend's house that she rented. At the time of the
hearing, she stated that she was still paying off her student
loans. She, however, was unable to identify any of the
lenders from whom she obtained the loans.
Dickerson denied ever seeking additional support payments
from Dr. Waites to attend law school; indeed, she testified
that "[i]f I thought [Dr. Waites] was available for
extra funds, I would have gotten him to bail me out so I
didn't have to sell my house." According to Ms.
Dickerson, during the time she was in law school, Dr. Waites
paid her only the agreed upon spousal support of $1, 000.00 a
defense counsel and the trial court judge questioned Ms.
Dickerson regarding the affidavits from Dr. Waites and Ms.
Waites stating that accelerated support payments of $2,
000.00 extra per month were made while Ms. Dickerson was in
law school. In response to defense counsel's question,
Ms. Dickerson testified that if Dr. Waites were to testify
that he paid her an additional $2, 000.00 a month between
August of 1993 and June of 1996, he would be lying.
Similarly, the trial court judge asked Ms. Dickerson the
following question: "But, as you sit here today,
you're saying that you have not received, during the time
that you were in law school, that additional $2, 000[.00] a
month?" Ms. Dickerson replied "No, Judge. I
don't-that didn't happen." Ms. Dickerson also
testified that she would be "very surprised" if Dr.
Waites made that statement. Likewise, Ms. Dickerson testified
that it would be incorrect if Mrs. Waites were to testify
that she had personal knowledge that Dr. Waites paid Ms.
Dickerson an additional $2, 000.00 a month during the time
she was in law school. According to Ms. Dickerson, the
accelerated payments were never made.
the 2013 Agreement, Ms. Dickerson identified the Note that
she received from Mrs. Waites at the end of 2012 stating that
Dr. Waites intended to stop paying spousal support because he
was retiring. Thereafter, she testified that her support
payments were reduced to $500.00 a month for six months and
then ceased. As a result, in 2013, Ms. Dickerson received a
total of $2, 500.00 in support, as indicated by the revised
payment schedule in the Note; however, under the terms of the
Settlement, she was owed $12, 000.00. At the time of the
hearing, the total amount of missed payments due under the
Settlement was calculated to be $46, 500.00.
Dr. Waites and Mrs. Waites testified, consistent with their
affidavits, that Dr. Waites agreed, pursuant to the 1993
Agreement, to pay-and actually did pay-Ms. Dickerson an extra
$2, 000.00 a month during the time that she attended law
school. Dr. Waites explained that he understood the
accelerated payments to be advance alimony payments, not
gifts. He further explained that he took a tax deduction for
the full amount of the additional support payments that he
made to Ms. Dickerson; he included the accelerated payments
on his federal tax returns for the years 1993 to 1996 as
Waites, however, acknowledged that he had no bank records,
tax returns, cancelled checks, or any other documentary
evidence to substantiate his testimony that he made the
accelerated support payments to Ms. Dickerson. Dr. Waites
described in detail his search for such records, which
included contacting the Internal Revenue Service, going to
three different banks, and talking to his accountant. None of
them retained records dating that far back. During the month
before the hearing, he also searched on a computer from the
1990's for such records. Again, however, he was unable to
find such records.
close of the hearing, the trial court ruled that Dr.
Waites' on-going obligation to pay $1, 000.00 in monthly
spousal support was not terminated by either the 1993
Agreement or the 2013 Agreement. In so ruling, the trial
court orally reasoned that "from the [Settlement]
agreement itself, particularly paragraph E,  there's no
question that the support to Ms. Dickerson was or could have
been terminated only by Ms. Dickerson;" the trial court
found that Ms. Dickerson had not agreed to terminate the
spousal support. Moreover, the trial court cited the settled
principle that "[m]ere acquiescence in the obligor's
failure to pay the full amount of support does not constitute
a waiver." Delesdernier, 12-38, p. 10, 95 So.3d
trial court, however, found Dr. Waites' testimony, which
was corroborated by Mrs. Waites' testimony, that he made
the accelerated support payments from 1993 to 1996 was
credible. The trial court thus determined that Dr. Waites was
entitled to a $66, 000.00 credit for those payments. To