Rochelle Wells VS Larry Wells (2007CU1663 Consolidated With 2007CU1664)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CU 1663 ROCHELLE WELLS VERSUS LARRY WELLS Consolidated With v6 W t I NUMBER 2007 CU 1664 y c LARRY C WELLS VERSUS ROCHELLE A WELLS Judgment Rendered Appealed from Twenty lEe 2 8 2007 the First Judicial District Court In and for the Parish of Tangipahoa Louisiana Docket Number 2006 001938 c w Honorable Robert H Morrision III 2006 002270 Judge Presiding Brenda Braud Counsel for Plaintiff Appellant Hammond LA Rochelle Wells Barbara Parsons Counsel for Defendant E Griffin Kristy LA Zachary BEFORE Larry Appellee Wells WHIPPLE GUIDRY AND HUGHES JJ A WHIPPLE J Rochelle Wells child use following a child support custody children appeals trial court judgment health insurance coverage of the matrimonial domicile reasons we that addressed issues of and For the spousal support vacate in affirm in part for the minor render in part and part amend in part FACTS AND PROCEDURAL HISTORY Larry and Rochelle Wells have parties born on two April 23 2003 divorce and for A children a hearing parties stipulated children p born September on conducted on 7 and m on daughter petition for 2006 28 at which time the domiciliary parent of the minor Saturdays from 10 00 a m to of the Chevrolet Tahoe child support 8 00 p as the m specified to Larry and extended family and Larry would have facilitate visitation with were a a The 1 restraining orders obtained by the parties would be modified use 1997 matters August that Rochelle would be the 6 1996 and 2006 Rochelle filed On June 13 determination of incidental was September on Larry would exercise visitation on Mondays and Fridays from 6 00 8 00 p to m a son married were Thus the spousal support remaining issues before the use of the court family home and rental reimbursement Following the hearing the trial which dated March 26 was paliies as to the comi that monthly lOne dated July s rendered implementing a the written judgment stipulations domiciliary parent and the visitation schedule judgment the Larry 2007 court further decreed that month later income 13 2006 July 27 2006 these matters were was 2 184 00 was on Larry Larry filed a not In the underemployed The petition judgment for divorce consolidated in the trial court 2 of the and further By order attributed income an to Rochelle based upon minimum wage for forty hour a work week With not set regard forth a to any specific provided that Larry child support The patiies actual child support guideline on was children to on ordered to the provide to use use rental reimbursement show cause one half the fifteenth of on of the matrimonial domicile Additionally Furthermore the spousal support Larry was to pay was all exempt from the obligation of 2 From this judgment Rochelle lodging the appeal this judgment half payment make to make through his employment and Rochelle notes directing the parties or to health insurance coverage for the minor in lieu of judgment provided that monthly mortgage one to the of the family home the judgment ordered that Rochelle have exclusive 26 2007 appropriate earnings attributed filing of the original petition when it becomes available Also after the the first of each month the first of the month and Regarding was on the set at judgment fmiher provided that Larry had the option the month retroactive Larry based amount judgment did Rather the judgment shall be obligation child support s the child support payments payment of child support due amount the obligation to show was a order before cause proper appeals listing court ex six proprio assignments of error motu issued by briefs whether the trial appealable judgment court an s order March We will address the addressing the remaining issues raised on appeal SHOW CAUSE ORDER The September 2Thereafter differs from the rendition of this 14 2007 show order questioned whether the judgment on Aplil 26 oliginal judgment The propliety of the the tlial court rendered language of the second judgment cause a second is addressed in number six 3 our discussion of 2007 which tlial court assignment of s error trial court the lack of decretal given be March 26 2007 s paid by Larry the was a this Specifically that Larry child support s the actual to as attributed or to be earnings of the parties render may visitation A family home and LSA R S party has However Vanderbrook 10 5 any 02 a incidental see 818 So contingency 2d 533 purports to also Martello 2d 906 913 Drury the determinable from the If the amount be must v of child proceeding for a such as custody and occupancy of the court has jurisdiction to See LSA C C P 3943 art La Martello 2006 0594 v 2001 0809 a judgment La judgment based amount of the recovery and to Fontelieu certain 1 App must not a it is 116 La 866 881 4 not by a a on be stated in the to amount an future 120 extrinsic source at contingency 125 be should valid and proper 41 So Cir be based for judgment Vanderbrook 818 So 2d be determinable st demand for money must the judgment without reference La and App 1st Cir 8 21 02 upon a or reasons remains definite precise Inc Moreover otherwise indefinite and uncertain Fontelieu use Drury 2001 0877 v If 538 be final pleadings in matters matters judgment with certainty and precision as s 960 So 2d 186 189 judgment a incidental on Coachmen Industries v 835 So such court However the exact amount court right of appeal and this on 13 4232 B App 1st Cir 3 23 07 trial a spousal support and judgment a 105 art judgment child support review such set paid by Larry Pursuant to LSA C C divorce the on to 2007 obligation shall be based amount judgment lacked decretal language specifying the support of child support noted that the March 26 court appropriate child support guideline findings appealable judgment proper language specifying the amount judgment merely provided at judgment 1906 913 or is judgment see also Russo Fidelity v and Simon 1 st 129 La 554 561 App Hulse 12 La v Co 450 450 451 Deposit 56 So 506 508 1911 124 So 845 846 La App Cir 1929 As stated above the March 26 2007 Lany guideline this based amount parties but did such obligation shall be child support s not portion on the specifically of the court set s judgment merely provided set at the findings appropriate as the child suppOli judgment is clearly based makes it unenforceable i the e to the child suppOli earnings of the awarded amount upon that As contingency that a performance of the actual calculation of support due in accordance with the guidelines Thus this portion of the judgment lacks certainty rendering it invalid for purposes of immediate review on appeal It is clear that in the absence of appellate jurisdiction review the to Safe Harbor 2002 0045 However show cause matters pointed as La out order other a valid final matter judgment this Laird St v App 1st Cir 12 20 02 court lacks Tammany Parish 836 So 2d 364 366 by Rochelle in her brief in response to this court portions of the judgment at s issue herein decided ancillimy to this divorce proceeding with precision definiteness and certainty and thus are subject to appellate review pursuant to LSA C C art 3943 Accordingly obligation the to may not be proceedings amount Guillot s to court review this issue in Larry we elect s child support to exercise our keeping with the Louisiana dictate that the paramount consideration in child suppOli is the best interest of the child and in consideration of the of time this v that the issue of properly before this supervisory jurisdiction Civil Code extent case Munn 99 2132 has already spent in the judicial system La 3 24 00 5 756 So 2d 290 301 See For these reasons we recall the show order and address the issues raised cause by Rochelle LARRY S CHILD SUPPORT OBLIGATION Assignments of Error In these refusal of assignments Larry the failure of the trial imputation of that finding that this a a minimum wage Larry court imputing was for salary to her and in support due and the date on As discussed above render a to be made a precise and certain regard we to Rochelle the trial she argues on Revised Statute 9 315 11 A Rochelle requests on a was erred in court not voluntarily matter to of the trial monthly child amount failing to of child support owed by conclude that the judgment should have set court s appeal imputation due or in a Thus minimum wage pertinent pmi underemployed determination of his or of under the age of five years provides party is physically were we salary that the trial court erred because she is was party is voluntarily unemployed unless the s of error caring for the parties child who calculated based or s agree that the trial court erred in we assignments to certain the trial amount forth the precise date of each month that such paYments With paid by which such paYment is due same reasons find merit in these s court further remand this court a court and the trial court Rochelle finding that Larry judgment setting forth the specific F or the must be to in the judgment review the record and conclude that the trial determination of a salary challenges the trial voluntarily underemployed not underemployed and that this Larry specify court to 4 of child support amount date when child support paYments exact court Rochelle error specify in the judgment the to Nos 1 2 3 or follows If a child support shall be her income mentally incapacitated 6 as Louisiana earning potential or is caring for a child of the clear under the age of five years parties ofLSA R S 9 meaning 11 315 Emphasis added is that the income party who is voluntarily unemployed earning potential underemployed will or considered in the calculation of child support if that party is child of the parties under the App 1st Cir 2 23 Romanowski 2003 0124 La In the instant Rochelle portion case of five years age the parties were of the judgment setting forth Larry work week with the exception normal business hours Rochelle of the child for caring a v with joint custody Moreover a review of the visitation establishes that the actual the trial be not Romanowski custody during the entire of four hours of visitation Accordingly for purposes s s of a 873 So 2d 656 662 awarded being designated the domiciliary parent child under five years of age is in Rochelle to 04 The court erred in occurring imputing support determination a after wage This assignment of error also has merit With to regard the trial court underemployed Rochelle contends discretion in per hour finding that Larry s on appeal that the trial making this determination with a substantial amount as not voluntarily court abused its was Larry had been earning of overtime pay 16 09 for the three year period immediately preceding this litigation For purposes of the determination of child actual gross income of LSA R S 9 315 C unemployed party or In such 5 a party if the party is employed If a on forth in LSA R S 9 the 11 315 Romanowski 873 So 2d at party s to means the means full the other hand the party is underemployed income a case support income capacity voluntarily potential income of gross income shall be determined See LSA R S 660 7 9 315 C the 5 b and 9 as a set 2 315 B V oluntary underemployment for purposes of is a of question where a faith parent the good faith of the obligor have courts necessitated the or employment Romanowski 873 So 2d underemployment is has wide discretion in factual determinations will manifest error income is a Thus not a grain elevator approximately employed a at as a his forty paid less significant 3We salaries tips the year as to as tractor Services 48 885 absent The tlial to was of showing be disturbed absent manifest years a on June 25 Larry testified that at 16 09 per hour earning employment with an during the company that employment was ADM healing below Larry air earning conditioning was was technician 12 00 per hour and he per week why he left parties Larry a good faith in reducing his driver for ADM as s a higher paying job for he worked for ADM of overtime which note that while the the 662 Larry explained that when as appeal At the time of the forty five hours questioned etc not employment he 3 48 900 00 amount on spouse is in income from his by Lightening When fact dliven consideration began living separate and apart Through this employment Larry worked a However he left that the time he discontinued his and that in 2005 good voluntary change in Larry testified that for three case 2006 after the parties be in to case 660 be disturbed whether parties marriage he worked operated at factual determination that will In the instant every determining the credibility of witnesses and its Romanowski 873 So 2d error virtually recognized extenuating circumstances beyond parent s control which influenced court In spouse voluntary underemployment has been found s V oluntary calculating child support prevented him from one that he worked spending a much w income tax retum lists their ages fonn from ADM lists his actual pay for 2005 W 2 2005 47 808 13 8 joint time with his children to April he worked the times work seventy five work six weeks to some days he would work there were Larry during the period from October overtime most During eighty hours a mornings when Larry would when he got off of work and he had often to leave for work when his Because of these Larry explained that he to son on long shifts the bus stop at or was about during the period from April even schedule m his see he worked considerable overtime 3 00 p Additionally already left for work October at at got home from school son Larry further testified that everyday he would period week and sometimes he would sixteen hour shift a that without any weekends off consecutively many to According find out was With required to regard phone to to his work the company his work schedule for the requirement that prevented him from being able to next day a plan activities with his children Thus he to quit his become works Larry testified after the parties began living separate and apart job a with ADM and heating and air straight days forty pretty much on to completed twenty eight day training a installer conditioning forty five hours the weekends spend time with his children a With his course new job Larry per week and is off nights and schedule that facilitates his ability to Larry also stated that his present employer informed him that he could make up 36 000 00 per year within the to next few years While Rochelle disputed Lany overtime he worked with his he worked weekends n s testimony about the extent of previous employer she did acknowledge that ine times out weekend off once every six weeks 9 of ten and that he would have a refusing In understand Larry worked with his his at 48 885 004 Larry in not a will The court and specific award court erred in found that not to be we to Because disturb the trial parties under the s to manifest no factual facilitate error in this finding that Lany of the child support agree that the trial court erred in manifestly failing to render a We likewise agree that the trial wage to Rochelle where she is court clearly was of error lacks merit However age of five years assertion that the trial find court hourly Larry had earned reduce his income we s obviously concluded that court purposes paid on a specific date imputing a the overtime he given LaITy that given of stated that it could court significant portion of those earnings assignment sum for purposes Larry change occupations given good faith in choosing This Thus in not herein the overtime work Thus the trial we to wage voluntarily underemployed for calculation the to time with his children determination was obligation previous job in 2005 to spending desire s higher a previous employment attributable was impute his child support computing wage to erred in we caring for a find no child of merit her to concluding that Larry was voluntarily underemployed given the specific circumstances of his previous employment Accordingly because the record before us is complete award of child support in favor of Rochelle and against Larry of on 558 00 per month to be paid to Rochelle the See LSA R S 9 315 2 LSA R S 9 315 8 LSA R S 9 9 19 315 This award is retroactive to the date of 20th we render in the an amount of each month 13 315 A s LSA R S filing of the original petition 4See footnote 3 above sThis award is based upon was the trial court 2 184 00 per month 10 s finding that Larry s monthly income INTERIM SPOUSAL SUPPORT of Error No 5 Assignment In this assignment of abused its discretion when In oral support continue to Larry support with the trial a reasons court determining for to pay judgment the house entitlement no Rochelle contends that the trial error the court note by Larry further stated that her entitlement to on income as rental reimbursement Larry would be not of the a recipient see and that interest 26 on DS C spousal However precluded from asserting paid by him in notes any finding that Larry which is 723 00 s a month a out she a and 8 Citing the spousal support obligation is property mortgage debt the tax deductions 6l S LSA R S mortgage payments is deductible from income if the taxpayer itemizes deductions points out court to equal s specific the house note that if Larry pays the community of his separate income he would be entitled According to Rochelle however community mortgage debt with her Consequently that the matter should be remanded for entry of to Larry is essentially separate income spousal support which she contends is improper of family home ordering appeal Rochelle notes that spousal support is the separate taxable 9 3l5 C 3 asserts was spousal community property settlement On paying interim stated that it the claim for reimbursement for the mOligage ultimate to court an ie her Rochelle appropriate award spousal support to be paid to her directly and from which she presumably could pay the note herself thus entitling her to the tax deduction Rochelle further being paid that because the with her separate income she reimbursement of these asserts at reasons the time of Rochelle not community debt is actually Larry should be entitled partition of their community property asserts that the award 11 of to For all spousal support fashioned by the trial should be reversed and the matter remanded for court proper determination of the a amount due to her specific in accordance with the dictates ofLSA C C In a proceeding for divorce the support allowance to of the other spouse the marriage final a spouse based spousal support an the same a residing with Lambert a v Absent the other to spouse assist the living pending demand for that he the LSA C C 113 ali in claimant spouse or she litigation App 15t Cir 3 23 07 Lambert 2006 2399 La during spouses pending ability spousal support allowance shall judgment of divorce standard of or periodic the needs of that spouse the award of an interim style interim 111 and 113 arts spousal support is designed sustaining an living of the terminate upon the rendition of Interim award and the standard of to pay LSA C C 113 art court may on spousal support as enjoyed while of the divorce 960 So 2d 921 928 A spouse s right to statutorily imposed duty claim interim on spouses to periodic support is grounded support each other during marriage and thus provides for the spouse who does or her maintenance 928 during the Interim support is final determination of support The spouse or to seeking interim of not separation Such a can be made at at parity in the levels of Lambert 960 So 2d spousal support bears determining an at 192 12 the burden of 192 The trial award of interim determination will not be disturbed absent Martello 960 So 2d Lambert 960 So 2d avoid unnecessary financial dislocation until her entitlement to it Martello 960 So 2d with much discretion in have sufficient income for his to preserve designed maintenance and support and a period in the a at 928 proving court his is vested spousal support clear abuse of discretion In reasoned rendering its award of interim spousal support the trial court follows as As far the claim for it gets spousal support again into a situation where it s kind of tough to divide the income that s available What Im going to do is order that as spousal as support Mr Wells continue be entitled to a the house to pay rental reimbursement for that preclude his claim in any ultimate note that he not but that does not property settlement as to any that he may be entitled to from that And I don t even get to that point this morning either because as we say amounts need to we re here not His 723 00 a on a spousal support is equal to case note which the house is month Moreover the notes due mOligage property settlement judgment provides that Larry on the matrimonial domicile shall pay all monthly and in lieu of spousal support ROCHELLE WELLS shall be exempt from the obligation of rental reimbursement mortgage notes However LARRY WELLS paid by him shall not be claim for reimbursement for precluded in any ultimate property settlement On review the record shows that the trial court found that Rochelle clearly was entitled to an award of interim possessed the requisite ability to court then found that Rochelle of the monthly mortgage determination find that by the trial the trial circumstances and its determinations was note court court attempted pay i some spousal support and that Larry interim entitled to After We find no error amount in this thorough review of the record carefully considered the parties to The trial spousal support in the 723 00 e spousal support we financial balance the interests of the parties in making regarding interim spousal support To the extent however that the trial court ordered that such funds representing Rochelle s interim spousal support award be paid directly 13 to the mortgage company find that the trial we ened court Interim support constitutes the separate income of the payee spouse 9 315 C 3 Moreover a made is entitled unrestricted party in whose favor spend those paYments to right a as Seifert 374 So 2d 157 spousal support award is or he a she chooses and has the La 159 App 1st Cir 1979 see McManus 428 So 2d 854 856 La App 1st Cir 1983 Thompson 428 So 2d 858 860 La App 1st Cir 1983 amend the portion of the trial monthly mOligage LSA R S determine how the funds will be disbursed to due notes Larry is to pay directly to Rochelle interim court on s Seifert and We further vacate the v Thompson Accordingly the matrimonial domicile amount v also McManus judgment ordering Larry spousal support in the spousal to we to pay provide v all that of 723 00 per month portion of the trial court s judgment exempting Rochelle from the obligation of rental reimbursement and ordering by him was that not Larry s claim for reimbursement for mortgage precluded in rights of the parties to any ultimate paid propeliy settlement reserving the seek determination of these issues in the propeliy partition between the pmiies notes community 6 PROPRIETY OF THE APRIL 26 2007 JUDGMENT Assignment In her final ened in once the assignment of rendering a second enor judgment to execute At the time the trial on 6In doing so we 2007 contending that entered the trial court April was court rendered the second judgment the to this court recognize the light of either party may be necessary to 26 court was the second judgment We agree judgment had already been appealed as Rochelle argues that the trial April 9 2007 order of appeal without jurisdiction court of Error No 6 protect Pursuant 14 LSA C C P to seek further relief in the tlial and preserve the assets of the community property partition to original community pending a 2088 the trial art court s jurisdiction over all under the appeal is divested and that of the granting of the order of Thereafter the trial court the second 19 9 97 See Turner judgment court of case was only attaches over La the matters The second reviewable matters 96 0624 701 So 2d 236 238 writ denied 97 3034 on appeal those 2088 art reviewable divested of jurisdiction D Amico v case devolutive a clearly concerned court Thus the trial court appeal appellate LSA C C P appeal judgment issued by the trial under the in the has jurisdiction in the case reviewable under the not in the appeal matters La to render 1 App 13 2 98 st Cir 709 So 2d 750 Accordingly 2007 7 r25 94 1204 La Miley 95 the second vacate United States v App 1st Cir 16 6 La 1101 See we 7 4 95 judgment rendered Fidelity 659 So on and Guaranty April 26 Company 2d 792 799 writ denied 95 660 So 2d 436 CONCLUSION F or the above and issued 2007 be by this court on foregoing set at the each month We child suppOli appropriate first of each month are option or one to s Const art V on second judgment App 1st Cir order portions of the March 26 child support the first and cause obligation shall and that Larry amount one half on on either the the fifteenth of vacated court has the sec The guideline hereby render judgment in favor 7This recall the show make the child support payment half Larry Wells for child suppOli La we September 14 2007 judgment ordering that Larry Wells Wells shall have the So reasons 2 in the amount of 558 00 per month to against be paid any needful writ in aid ofits jurisdiction La here such jurisdiction is infringed by the trial court s authority to issue where as United States Fidelity and Guaranty Company 94 1204 16 95 660 659 So 2d 792 799 writ denied 95 1101 La 6 See Miley 7 4 95 of Rochelle Wells and v 2d 436 15 on the 20th of each month retroactive petition on June monthly mOligage Wells shall pay amount retroactive directly 723 00 per of to portion on from the to of the judgment ordering Larry Wells Rochelle Wells interim month be to paid on to provide that Larry spousal support in the 5th the of each month the date of demand that in lieu of obligation portions of the March 26 2007 judgment spousal suppOli Rochelle Wells shall be exempt of rental reimbursement and that reimbursement for mortgage ultimate filing of the original the matrimonial domicile to We further vacate the providing the date of 13 2006 We further amend the pay the to notes property settlement judgment is affirmed paid by him shall In all other We further vacate the Larry Wells claim for precluded in any the March 26 2007 not respects s be April 26 2007 judgment in its entirety Costs of this SHOW MARCH 26 appeal CAUSE 2007 assessed ORDER against Larry Wells RECALLED AFFIRMED IN RENDERED IN PART AMENDED are PART AMENDED IN PART JUDGMENT VACATED PART AND AFFIRMED AS JUDGMENT OF APRIL 26 2007 VACATED 16 IN OF

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