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Waites v. Waites

Court of Appeals of Louisiana, Fourth Circuit

October 10, 2018

ANNE DICKERSON WAITES
v.
THAD FULTON WAITES

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 1984-05686, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE

          Kevin S. Vogeltanz LAW OFFICE OF KEVIN S. VOGELTANZ COUNSEL FOR PLAINTIFF/APPELLANT

          David Gernhauser, Jr. Dan A. Robin, Jr. Erich Puderer LAW OFFICE OF DAN A. ROBIN COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase.

          Rosemary Ledet Judge.

         This is 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.[1] 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.[2] 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         The 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.[3] 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.[4] 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 time."[5]

         For 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.

         Although 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.

         In 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 payments.

         In 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 practicing attorney.
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 payments.

         Dr. 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.

         On 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 obligation:[6]

• 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"); and
• 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 Agreement").

         The 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.

         Ms. 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.

         Ms. 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 month.

         Both 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.

         As to 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.

         Both 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 alimony payments.

         Dr. 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.

         At the 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, [7] 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 at 595.

         The 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 ...


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