Lori Stevens Franks VS Jack Franks

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NOT DESTGNATED FOR PUBLICATION STATE OF LOUISIANA URT C UF AI PEAL FIRST C UIT IRC 20l CA 0843 LURI ST FRANKS NS VE VERSUS JACK FKANKS Judgment Rendered SEP 0 2012 i ALED ROM I APPE 1 TH IRSTJUDICIAL DISrT Y WEN TCOURT RIC IN 1NU I OR rI POF 1 HE IRISH ANGINAHOA r A I S OF LUUISIANA KET DOC NUMBER 2006 0003744 DIVISI4N F E TF IIONORABLE ELIZABET P WOLFE JUDGE PRO TEMPORE Lila Tritico a Hoga F Ott Attorneys for Plaintift Appellec Carolyn am Den Springs Louisiana Lori Stevens Franks Jack L Fra iiks Appellailt Defendant Pittsburg Penrlsylvania ro l Se BFFORE GAIDRY McDONALD ANU HUGHES JJ 1 I McDONALD J This is an appeal by Jack L Franks from a judgment re child support arding d ar custody Lori Stevens l ranks Ms Stevens tiled a peremptory exception of s r judicata and a inotion tor sanctions which were k referred to this panel to be otla decided along with the appeal I histoiy of the parties and their litigation is set he out by this court ir a previous opinion Franks v Jack Franks 2010 1 14Q 201 l WL379325 La f1pp l Cir 2 1 1 unpublished 57 So 60 table and 7 3d will not be x he epeated ein Mr Franks is appEaling th district court judgment si on January 19 ned 201 l which ranted M Stevens Ku1e for Sanctions fled S on A p ril 29 2010 finding tl certain pleadings tiled by Mr Franks were frivolous and k in at arassing violation of La C art 63 specifically a Motion for Rc filed on P consideration April 21 2010 a Respoi to Opposition to Motion tor Reconsideration rled on se April 28 2 10 a Motion to Vacate D 7 2009 Order Iil on April 2g cember d 2010 ar r Motion to Vacate Motion to Supplement Record on Appeal filed on d April 28 2010 The district cour ther granied the Rule for Sanctions tiled by tfu Ms Steveils on May 21 2 found tlaat three differ pleadings fil by Mr 10 ent d Franks were frivolous ordered tlaat Mr Franks pay to Ms Stevens 5 as 75 684 ey attor fees and court costs for his violations of La C art 863 continued P Ms Stevens Rule for Contempt Iiled on 1 29 2010 subject to reassi pri1 nment issed disn the Motion for Appeal iled by Mr I December 14 20Q9 for ranks on failure to pay the appeal costs and aba the appeal ordered that child ldoning support be tixed according to tl ouisiana Child Suppoi Guidelines and decz e t that Ma Franks gross monthly incozne be set at I 3 pu to the 33 38 f rsuant Pennsylvania Labor Wage Survey decreed that no incorYlG be imputed tc Ms Stevens as the cl were under the age of five yeai ordered that Mr Franks en ildr s pay Ms Stevens c 5upport of 2 per month begini lugust 3 2009 lild 05 537 ing 2 I and ordered that the retroactive i11ou of 4less 4paid by Mr t 92 28 39 982 Ftc M5 Stev froin Au 3 2009 through December h 2010 for a total ns uSt of 37 be made executory together with legal i 89 945 aterest from December 6 201Q until paid in full ry Mr Frank a PP eal i cluded Final Jud g en t ndered on r December 13 c 2010 On December 13 2010 the district c denied a motion to dismiss filed aurt by Mr Franks askin that Plaintiff Motion to Dismiss Appeal anci Rule to Set s Child Support be ciismissed for failure to provide notice to the Defendant with le t district court notirlg that a contradict ryhearing with notice to defendant was held c D 6 2010 a motion by Mr F rec telephonic n cember anks uesting participation 111 thc Dcceznber 6 2009 hearirlg noting that Mr Franks could contact the judge ecrctary to set up a status call with the attarneys and the judge S axad Mr T answ rEquesting the dismissal of Plaintift Rule to Show rank5 r s Cause and Foi Sanctions and Rule Fior Contempt was denied as moot with the district court noting that a contradictory heax was held on December C 2010 ing Mr 1 ranks made the following assignments of error l Whc the trial court erred in not utilizing the Pennsylvania support thcr guidGlines in a child support calculation as required by the parties narital setticment agreement l 2 Wllether tl trial court eri in utilizin hypothetical income in a child e support calculati nwhen actual income had been pi 3 Whether the trial court erred in permitting the utili of a child ation support calculatic devoid of any credit for income taxes incurred on the n I Cl CO CTl 4 Whether the ti court erred in imposing sanctions agairist the detendant Appellant 5 Whether the t court erred in permitting the plaintiff to ial Appcllee introduce ill and improp gal revidence as a basis fo judgmerits against the clefendant llant App 6 Whetlier the trial imposirlg sanctions against the t Appellai dant defe for is objecting to the pennitting of plaintiff l ppel lee tc7 not comply with the May l 7 2010 order oi court court rred 3 in 7 Whether the tria court erred in not permittin telephonic testimony by the Defendant Appellant A court of appeal may not set aside a firial court or a jury findings of fact s s in the absence of manifest error or unless it is clearly The issue to be wrong resolved by a reviewing court is nnt whether the trier of fact was right or wrong but whether the facttind conclusion s r was a reasonable one Stobart v State Through Department of Transportation and Develapment 617 So 8 882 2d 0 a L 1993 After a thorough review of the record we find no manifest error or abuse of tion discr in the district court judgm and affirm the judgments nts THE MOTION FOR SANCTI4NS Ms Stevens asserts that Mr Franks assignments of error are frivolous and that Mr Franks continues to file pleadings in the district court and in the appellate I caurt for the sole purpnse of requiring her to pay g harassia Ms Stevens requiring her ey atton Fees to litigate and Ms Stevens asks that Mr Franks be a sessed with costs and be ordered to pay her 4 in attarneys fees additional damages 000 in the amount of 10 plus le interest from date ofjudicial demand Af a 0U0 al r t thorough review of the record we find Ms Stcvens rcquest for 4 in attorney 000 fees is well and we order Mr Franks to pay Ms Stevens 4 in grounded 000 attorney fees We declin to award additiona dama es For the foregoing reasons the district court judgment is affrrmed and we order Mr franks to pay Ms Stevens 4 in attorney fees Costs of this appcal p O are assessed against Mr Franks ENTS JUDGM AFFIRMED EXCEPTION OF RES JUDICATA NQT CONSIDERED MOTION FOR SANCTIONS GRANTED TO AWARD ATTORNEY TEES Having i no merit in Mr Franks assignrnents of error we find it unnecessary to address the peremptory exception 1Gading the abjection of res judicata urged by Ms Stevens 4

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