Brooks E. Fontenot-Swearengin VS Issac James Swearengin
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2013 CA 0174 BROOKS E FONTENOT SWEARENGIN VERSUS ISSAC JAMES SWEARENGIN Judgment Rendered November 1 2013 x Appealed from the 21st Judicial District Court In and for the Parish of Livingston State of Louisiana Case No 131131 The Honorable Elizabeth P Wolfe Judge Presiding Marcus T Foote Baton Rouge Louisiana Sherman Q Mack Jeffery T Oglesbee Albany Louisiana Counsel for Defendant Appeilant Issac James Swearengin Counsel for Plaintiff Appellee s Brool E Fontenot Swearengin BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ 8 d a a THERIOT J In this case a former husband appeals a trial court judgment awarding his former wife final P eriodic su PP ort We affirm FACTS AND PROCEDURAL HISTORY Issac Swearengin and Brooks Fontenot Swearengin were married on May 2 2004 One child was born of the marriage on July 3 2009 The parties separated and a petition for divorce was filed in December 2010 Brooks filed an amended petition for divorce on June 9 2011 requesting child support and spousal support Pursuant to a stipulation entered in court on August 15 201 l the trial court awarded Brooks interim spousal support of 800 per month and child support of 800 per month On April 18 00 00 2012 Brooks filed a rule to extend the interim spousal support or in the alternative for permanent spousal support She also sought to have the court order the parties to pay their percentage share of the minor child s extraordinary expenses The parties were divorced by judgment dated December 3 2012 After a hearing on Brooks rule the court ordered Issac to pay s Brooks final periodic support in the amount of 750 per month 00 retroactive to the date of filing with the support obligation terminating on July 31 2014 The court further denied Brooks request to modify child s support to order Issac to pay his percentage share of the child s extraordinary expenses Issac has appealed asserting that the court erred in awarding rehabilitative support to a spouse who is not seeking any additional training or education in failing to consider two sources of Brooks income in s considering Brooks expenses for her gym membership and cable television s when calculating permanent spousal support and in awarding an amount of 2 j spousal support greater than the deficiency listed on the income and expense affidavit DISCUSSION Louisiana Civil Code article 111 provides that in a proceeding for divorce a court may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage Final support may be awarded based upon the needs of the party seeking support and the ability of the other party to pay when the spouse seeking support has not been at fault and is in need of support La C art 112 The claimant spouse has the burden of A proving insufficient means of support and until need has been demonstrated the other party financial means are irrelevant Prestenback v Prestenback s 0457 La 08 p 7 1 Cir 11 9 So 172 177 App 08 18 3d In awarding final periodic support the court shall consider all relevant factors which may include 1 The income and means of the parties including the liquidity of such means 2 The fmancial obligations of the parties 3 The eaming capacity of the parties 4 The effect of custody of children upon a party earning capacity s 5 The time necessary for the claimant to acquire appropriate education training or employment 6 The health and age of the parties 7 The duration of the marriage 8 The tax consequences to either or both parties La C art 112 B The sum awarded in final periodic support sha11 not exceed one of the third s obligor net income La C art 112 The court has great discretion in C 3 j determining awards of spousal support and these determinations will not be disturbed absent a clear abuse of that discretion Prestenback at p 5 9 So3d at 176 In Issac first assignment of error he asserts that the trial court erred s in awarding rehabilitative final spousal support to a employed 32 healthy year old who was not seeking any additional training or going back to school There is no requirement under Article 112 that a spouse be seeking additional training or going back to school in order to receive final periodic support Rather the requirements for final periodic support are that the claimant spouse is free from fault and has insufficient means to support herself The parties stipulated that Brooks was free from fault in the breakup of the marriage Brooks testified at trial that she had insufficient means for her support and had been accumulating credit card debt in order to pay her bills since Issac had stopped paying spousal support under the prior consent judgment She further testified that her car was unreliable and in need of multiple repairs and she would have to purchase a new car soon incurring an additional monthly expense for a car note Brooks testified that she was not asking for spousal support for the rest ofher life but rather for two years to give her a start and aup Based upon the evidence before head foot the court we find no abuse of discretion in the court determination that s Brooks has insufficient means to support herself The court reasons for s judgment show that the court considered all relevant factors in making the determination to award spousal support and we find no abuse of discretion in this determination In his next assignment of error Issac argues that the court erred in failing to assess some additional income to Brooks for a friend who lives with her rent Brooks testified that she does not charge her friend rent free 4 because she helps Brooks out with the minor child Issac argument in s favor of imputing rental income to Brooks seems to be that since Brooks is claiming 701 a month in daycare expenses she should not also be 00 allowed to have a friend live with her rent in exchange for child care free However Brooks testified that Issac exercises a minimal amount of physical custody of the child sometimes as little as two days a month due to his work schedule and she sometimes needs help with the baby We find no error in the trial court decision not to impute additional income to Brooks s based upon this arrangement Issac next argues that Brooks should be assessed some additional income for her share of the proceeds from the sale of a community owned business However Issac admitted that even though he had been receiving monthly payments in varying amounts from the sale of the community business Brooks had never received any of her share of the proceeds from the sa1e s Issac argument that additional income should be assessed to Brooks was simply based on the assumption that the proceeds from the sale of the business would probably eventually be declared to be community and he would have to share them with her at some point in the future Under these circumstances we cannot say that the court erred in refusing to consider the proceeds of the sale of the business when calculating Brooks s means for spousal support purposes s Issac next assignment of error is that the court erred in calculating spousal support because Brooks affidavit of income and expenses included s her gym memberhsip and cable television expense While Issac is correct that expenses attributable to entertainment such as cable television service are not necessary for a spouse maintenance and should not be considered s in calculating final periodic support see Prestenback at p 8 9 So3d at 178 5 the record does not support Issac conclusion that the court included these s items in its calculation of Brooks expenses s Although Brooks listed the gym membership and cable expense on her income and expense affidavit the trial court did not simply award the amount of the deficiency shown on the affidavit Brooks affidavit showed income of 2025 and expenses s 74 of 303933 resulting in a deficiency of 1013 However the court also 59 stated that it was considering additional items in calculating the parties needs and means the 800 monthly child support payment Brooks 00 receives from Issac Brooks prospective vehicle expenses and the cost of s the health insurance Issac provides for the child The court ultimately awarded 750 per month in final periodic support Based upon all ofthe 00 factors considered by the court we cannot say that the court abused its discretion in awarding this amount of spousal support s Issac final argument is that the court erred in awarding an amount of spousal support which is greater than the deficiency listed on the income and expense affidavit Although the amount of the court award 750 is not s 00 greater than the deficiency shown on the affidavit 1013 Issac 59 s argument that the amount awarded is greater than the deficiency is premised upon his assertions that the court should have attributed additional income to Brooks for child support received for rent foregone and for potential profits I from the sale of the community business and that the court should have reduced her expenses by removing her gym membership and cable television expenses However as previously stated the court considered additional income and expenses besides what was shown on the affidavit in calculating support and the court calculation was not an abuse of discretion s assignment of error is without merit 6 This CONCLUSION The judgment awarding final periodic support in the amount of 00 750 per month is affirmed Costs of this appeal are assessed to appellant Issac Swearengin AFFIRMED 7 SWEARENGIN BROOKS E FONTENOT STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT 2013 CA 0174 ISSAC JAMES SWEARENGIN BEFORE KUHN HIGGINBOTHAM AND THERIOT JJ HIGGINBOTHAM J DISSENTS AND ASSIGNS REASONS HIGGINBOTHAM J The purpose of final periodic support is to provide a spouse in need with sufficient means for support See La Civ Code art 112 Support means a sum sufficient for the claimant spouse maintenance which includes the allowable s expenses for food shelter clothing transportation expenses medical and drug expenses utilities and household maintenance Expenditures for gifts recreation vacation and church tithes are not to be considered in awarding permanent alimony Similarly expenses attributable to entertainment including cable television service are not necessary far a spouse maintenance and should not be s considered in fixing permanent alimony Prestenback v Prestenback 08 0457 La App 1 Cir 11 9 So3d 172 178 08 18 According to the record Ms Swearengin monthly expenses excluding s cable and gym exceed her total monthly net income by only about 250 per 00 month Therefore the 750 awarded to Ms Swearengin per month greatly 00 exceeds the allowable expenses as testified to by Ms Swearengin and was significantly more than the sum needed for her maintenance Thus the trial court abused its discretion Therefore I respectfully dissent
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