Anna Joyce Rumsower Williams VS William Daymond Williams
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA i COURT OF APPEAL FIRST CIRCUIT 7 f NLIMBER 2012 CA 0281 ANNA JOYCE RUMSOWER WILLIAMS VERSUS WILLIAM DAYMOND WILLIAMS Judgment Rendered NOV 1 4 2012 Appealed from the 21 Judicial District Court In and far the Parish of Livingston Louisiana Trial Court Number 92291 Honorable Robert H Morrison III Judge Jason L Melancon Robert C Rimes Baton Rouge LA Steve LeBlanc Baton Rouge LA Attorneys for Appellant Plaintiff Anna Joyce Rumsower Williams Attorney for Appellee Defendant William Daymond Williams BEFORE PARRO HUGHES AND WELCH JJ WELCH J Anna Joyce Rumsower Williams appeals a trial court judgment finding that a monthly monetary obligation owed to her by her ex William Daymond husband Williams was spousal support and terminating that obiigation Additionally Anna has filed a peremptory exception raising the objection of res judicata with this court For reasons that follow we set aside the order dismissing the appeal affirm the judgment of the trial court and decline to consider the objection of res judicata FACTUAL AND PROCEDURAL HISTORY Anna and William were married on July 17 1959 in Reno Nevada and subsequently established their matrimoniai domicile in Tallahassee Florida where it remained until the parties physically separated on June 8 2000 Following the separation of the parties William moved to Evansville Indiana and Anna moved to Denham Springs Louisiana On May 9 2001 Anna filed a petition for divorce based on Louisiana Civil Code article 103 In Anna petition she requested that William continue to pay s the pension of 846 per month and that he should be ardered to pay her health 93 care insurance payments of 131 per month In response William filed an 00 acceptance of service and waiver of citation and appearance providing that he formally and expressly acknowledge accept and agree to the provisions d ed d alleged in the petition specifically fJor an order condemning him to pay the pension of 846 per month and to pay Anna health care insurance 93 s payments of 131 per month 00 He also filed an answer admitting all the allegations of the petition for divorce and praying for a divorce and for an order condemning him to pay the pension of 846 per month and to pay Anna 93 s Anna also filed an affidavit attesting to the truth of the facts in support of her petition for divorce requesting the same relief 2 health care insurance payments of 131 per month 00 On August 7 2001 the trial court rendered and signed a judgment granting Anna a divorce from William and ordering William to pay the pension of 846 per month and to pay her 93 health care insurance payments of 131 per month 00 On March 4 2010 William filed a motion to reduce or eliminate spousal support In this rule Williani alleged that at the time of the divorce he agreed to pay Anna spousal support in the monthly sum of 846 and her health insurance 93 premium of 131 per month because he was financially able to pay such sums 00 and because Anna was needy He also alleged that since the rendition of the judgment of divarce circumstances had changed that warranted a reduction or elimination of spousal support Specifically he claimed that his circumstances had materially changed for the worse as his income was insufficient to support all of his needs He also claimed that Anna circumstances had materially improved s because of a personal injury lawsuit she had against Wal Stores Inc far Mart which she had received the sum of 769 plus interest such that she was no 63 418 longer in need ofthe support that was being provided In response Anna filed a rule to show cause why William should not be held in contempt of court because he had failed to continuously pay her the monthly obligation of 846 and the health insurance premium of 131 in accardance 93 00 with the August 7 2001 judgment After a hearing the trial court rendered and signed a judgment on November 3 2010 classifying the monetary obligation set forth in the August 7 2001 judgment as spousal support and terminating William obligation to pay that s spousal support retroactive to March 4 2010 the date that he filed his motion to reduce or eliminate that support z The trial court judgment was silent with respect to the rule for contempt of court filed by s Anna Silence in a judgment as to any issue that was placed before the trial court is deemed a rejection of that demand or issue Hayes v Louisiana State Penitentiary 2006 La App 0553 3 Anna filed a timely motion to suspensively appeal that judgment which was granted on December 7 2010 however on April 6 2011 on motion of the Livingston Parish Clerk of Court office the trial court dismissed the appeal due s to non of appeal costs and filing fees payment Anna then filed a motion to devolutively appeal the April 6 2011 dismissal of her appeal claiming that the dismissal was absolutely null and further seeking to appeal the November 3 2010 judgment ASSIGNMENTS OF ERROR On appeal Anna contends that the trial court legally erred in 1 dismissing her appeal for non of costs without conducting the necessary hearing as payment required by La C art 2126 2 classifying the retirement pension benefit P E as final spousal support without factual or jurisprudential support 3 eliminating her spousal support based upon her receipt of settlement proceeds for damages arising from personal injuries and 4 eliminating her spousal support by examining her prior monetary expenditures as opposed to her current income means and expenses as of the time of the hearing LAW AND DISCUSSION Dismissal ofAppeal We will first address the propriety of the trial court dismissal of Anna s s appeal On Apri16 2011 pursuant to a motion filed by the clerk of court the trial court signed an order dismissing Anna suspensive appeal due to her failure to pay s appeal costs and filing fees Louisiana Code of Civil Procedure article 2126 provides E If the appellant fails to pay the estimated costs or the difference between the estimated costs and the actual costs within the time specified the trial judge on his own motion or upon motion by the clerk or by any party and after a hearing shall lCir 8 970 So 547 554 n writ denied 2007 La 1 973 So 758 07 15 2d 9 2258 08 25 2d Thus the silence in the judgment as to Anna rule for contempt is deemed a denial of that s request for relief 4 1 Enter a formal order of dismissal on the grounds of abandonment ar 2 Grant a ten day period within which costs must be paid in full in default of which the appeal is dismissed as abandoned Emphasis added The record which includes the minutes of the court does not reflect that the trial court conducted the requisite hearing prior to dismissing Anna appeal The s trial court should have held a hearing to allow Anna the opportunity to show why costs had not been paid and the trial court failure to do so constituted error s Because the trial court erred in dismissing Anna appeal without holding a s hearing regarding the failure to pay costs we set aside the trial court arder s dismissing the appeal We will therefore consider the assignments of error urged by Anna on appeal Classification of Obligation as Spousal Support Anna contends that the trial court ened in classifying William obligation to s pay his pension to Anna as spousal support Instead she claims that she was legally entitled to one of that pension benefit because it was community half property and that William sagreement to pay her the monthly pension of 846 93 constituted a voluntary partition of that community asset William contends that it was not a partition of a community asset because Anna is receiving 100 of the pension and because the judgment does not reflect that it is a partition of community property First and foremost we recognize that the provision contained in the August 7 2001 judgment relative to the payment of the pension to Anna was not a judicial decree but rather a consent judgment by the parties A consent judgment is a bilateral contract between the parties by which the parties adjust their differences by mutual consent with each party balancing his hope of gain against his fear of loss Horrigan v Horrigan 2010 IApp 1 Cir 6 70 So 111 1377 a 5i 11 14 3d 5 114 writ denied 2011 La 10 71 So 325 As a consent judgment 1596 11 7 3d is a type of contract between the parties its interpretation is governed by the determination of the common intent of the parties Id Thus when the words of a contract are clear and explicit and lead to no absurd consequences the intent ofthe parties is to be determined by the words af the contract Id See also La C art 2045 and 2046 Although extrinsic evidence is normally inadmissible to explain expand or contradict the terms of a contract where the terms of the agreement are unclear the court may consider extrinsic evidence to explain the terms of the agreement and to determine the parties intent Hulshoff v Hulshoff 2011 La App 3 C1T 1055 d 11 7 12 81 So3d 57 62 The trial court factual finding as to the intent of the s parties is a finding of fact subject to the manifest error standard ofreview Id As P reviousl Y set forth the Au g ust 7 2001 consent Jud P ent orders William to pay the pension of 846 per month and to pay Anna health care 93 s insurance payments of 131 per month The terms of this provision do not 00 clearly and explicitly provide that the payment of this monthly sum is either spousal support or a voluntary partition of that asset Thus extrinsic evidence was necessary to explain the terms of the agreement and to determine the parties intent with regard to that monetary obligation In its reasons for judgment the trial court made the following observations and findings William agreed in the pleadings he filed to pay the pension of 846 per month and to pay her health care insurance 93 payments of 131 per month which is reflected in the judgment 00 of divorce However there is no specific designation that these sums are to be considered as spousal support The pension was the entirety of the retirement benefit William had accumulated from his past employer Anna counsel s contended that under this terminology these payments were not designated as spousal support and that William could not therefor e maintain this cause of action However the testimony established that 6 there had never been any property settlement and the ourt c concludes that the payments could only be construed as spousal support otherwise Anna would have no legal basis to enforce a claim for these payments Our review of the record supports the trial court finding that the monetary s obligation set forth in the August 7 2001 judgment was intended by the parties to be spousal support According to the testimony of both William and Anna at the time they separated William was living in Indiana and Anna was living in Louisiana and the only income that they had was the pension and social security benefits When the parties decided to divorce William did not want to come to court in Louisiana so he reached an agreement with Anna and signed the papers that she sent him Since William was receiving social security benefits in the approximate amount of 1 per month and Anna was receiving social security 600 benefits in the approximate amount of 800 per month William agreed to pay Anna all ofthe pension benefit that he received 846 so that they would each 93 have roughly the same monthly income on which to live Thus the intent of the parties agreement was to equalize their monthly income a factor considered in the determination of spousal support not to partition or equally divide that asset See La C art ll2 and La R 9 Accordingly we fmd no manifest 1 B S 2801 errar in the trial court determination that the monetary obligation set forth in the s August 7 2001 judgment was spousal support Termination ofSpousal Support Next on appeal Anna contends that the trial court erred in terminating her spousal support based upon her receipt of personal injury settlement proceeds because those proceeds are not income She also contends that the trial court erred in terminating her spousal support by examining her prior monetary expenditures as opposed to her current financial circumstances 7 Louisiana Civil Code article 114 provides in part that a award of n periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary In determining whether the support should be modified ar terminated based on the changed circumstances of either party the court should consider the relevant factors listed in La C art 112 La C art 114 comment b However a finding of a change in circumstances does not automatically result in a modification or termination of support Mizell v Mizell 40 La App 2 Cir 1 920 601 06 25 2d So 927 929 Rather the effect of a finding of a change in circumstances is to shift the burden to the party opposing the modification or termination of spousal support to prove need and the relevant La C art 112 factors Id The factors set forth in La C art 112 are as follows B 1 The income and means of the parties including the liquidity of such means 2 The financial obligations of the parties 3 The earning capacity of the parties 4 The effect of custody of children upon a party earning s capacity 5 The time necessary for the claimant to acquire appropriate education training or employment 6 The health and age of the parties 7 The durarion ofthe marriage 8 The tax consequences to either ar both parties The trial court determination of whether to reduce increase terminate or s continue the amount of spousal support should not be overturned ar modified by an appellate court absent a clear abuse of discretion Gardner v Gardner 97 0749 La App l Cir 4710 So 1153 1155 98 8 2d In this case the trial court was presented with evidence concerning the income and means financial obligations earning capacity and health and age of both William and Anna and concluded that William had satisfied his burden of establishing a material change in ciroumstances and that Anna was no longer in need of support The trial court gave the following reasons for its finding 8 The parties testified that they had very little financial wherewithal Other than the pension Anna only other income s was 813 per month in Social Security benefits William only 50 s income was 1in Social Security benefits Until June of 2008 00 741 the parties relative financial positions since the divorce were basically unchanged other than cost of living increases to their Social Security benefits In June of 2008 Anna settled a personal injury claim which after payment of attorney fees costs and znedical expenses netted s her the sum of 323 In the intervening two years she had 27 724 expended all but 40 of these proceeds which she finally 00 000 wisely had placed into an annuity These funds were used by her for such things as paying off the mortgage on her daughter shome where she was residing paying off one daughter scar loan purchasing a car for another daughter and others making cash gifts to various family members charitable contributions eta She testified that she felt the settlement was a and that she wanted to use it to do good for gift others While Anna spirit of charity was admirable given her age s the prior financial condition of the parties and the size of the settlement she certainly could not have at that time been considered to be in necessitous circumstances If the c were to condone ourt the expenditures she thereafter lavished on others while maintaining a claim for spousal support she would essentially be forcing William to subsidize her largesse through his payments he ourt T c will also teriaYinate William spousal support s obligation at this time The c notes that Anna testified that she ourt had previously agreed to eliminate the 131 payment for month 00 medical insurance apparently when she became covered under Medicare here T is no community property issue befare the c ourt and the action taken merely ends the requirement that the pension benefits be paid over as spousal support I Our review of the record supports the trial court finding that there had been s a material change in circumstances and that spousal support was no longer necessary Contrary to Anna argument on appeal the trial court consideration s s ofthe net sum that she received in the personal injury settlement was not improper A parties income and means including the liquidity of those means is a factor that may be considered by the court in determining whether spousal support should be reduced or terminated See La C arts 112 and 114 1 B 9 We also find no error in the trial court consideration of Anna monetary s s expenditures since receiving that personal injury settlement as those expenditures are related to whether she is in need of support Anna testimony revealed that s she received the net sum of approximately 323 from her personal injury 000 lawsuit and that she had spent almost all of those funds except for 40 over 000 the last two years She testified that the remaining 40 was invested in an 000 annuity which yielded interest of approximately 130 to 160 per month Anna also testified that she received approximately 813 per month in social security 50 benefits but that she was still dependent upon her children to support her living expenses and was still in need of support from William Although Anna used some of the funds received to pay off some of her debts she also spent approximately 66 to pay off the mortgage on the home 000 of one of her children Dayna where she now resides rent she spent 16 free 000 on a car for her daughter who was depressed she spent 20 on a car for 949 Lisa she spent 12 on a car for Nicole gave her granddaughter Lisa and 000 Dayna each the sum of 10 and gave her brother 6 Although we agree 000 000 with the trial court that Anna spirit of charitable gifts to others was admirable s her willingness to bestow such expensive gifts on others from her personal injury settlement proceeds suggests that she had more than sufficient income and means to support herself and was no longer in need of support from William Accordingly we cannot say that the trial court abused its discretion in terminating s William spousal support obligation PEREMPTORY EXCEPTION While this appeal was pending Anna filed a peremptory exception raising the objection of res judicata with this court In this exception Anna claims that the August 7 2001 judgment precluded litigation of the issues raised in William rule s to reduce or eliminate support However her entire argument is premised on her 10 contention that the stipulation set forth in the August 7 2001 judgment that William pay the pension of846 per month was a voluntary equal division of 93 the pension benefit spousal support not Louisiana Code of Civil Procedure article 2163 provides that tappellate he court may consider the peremptory exception filed for the first time in that court if pleaded prior to a submission of the case far a decision and if proof of the ground of the exception appears of record Emphasis added In light of our decision herein that the trial court did not en in determining that the monetary obligation owed pursuant to the August 7 2001 judgment was spousal support and our affirmance of the judgment of the trial court we decline to consider Anna s peremptory exception raising the objection of res judicata CONCLUSION For all of the above and foregoing reasons the April 6 2011 order dismissing this appeal is set aside and the November 3 2010 judgment which determined that the monetary obligation set forth in the August 7 2001 judgment was spousal support and terminated that obligation is affirmed We decline to consider Anna peremptory exception raising the objection of resjudicata s All costs of these proceedings are assessed to the appellant in defendant rule Anna Joyce Rumsower Williams ORDER DISMISSING APPEAL SET JUDGMENT ASIDE AFFIRMED PEREMPTORY EXCEPTION NOT CONSIDERED 11
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