Briggitte Yvette Ardoin v. Brian Craig Ardoin

• Court: Louisiana Court of Appeal
• Decided: June 28, 2006
• Docket: CA-0006-0245
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

06-245

BRIGGITTE YVETTE ARDOIN

VERSUS

BRIAN CRAIG ARDOIN

********** APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, DOCKET NO. 66079 HONORABLE J. LARRY VIDRINE, DISTRICT JUDGE **********

SYLVIA R. COOKS JUDGE

**********

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and Billy H. Ezell, Judges.

Peters, J., concurring in part and dissenting in part and assigns written reasons.

AFFIRMED.

Shelley A. DeVille P.O. Box 716 Ville Platte, LA 70586 (337) 363-0707 COUNSEL FOR PLAINTIFF/APPELLEE: Briggitte Yvette Ardoin

Alisa Ardoin Gothreaux 2311 W. St. Mary Blvd. Lafayette, LA 70506 (337) 654-0935 COUNSEL FOR DEFENDANT/APPELLANT: Brian Craig Ardoin COOKS, Judge.

This appeal involves the trial court’s award of $250.00 to the ex-wife in

permanent spousal support. Finding no abuse of discretion in the trial court’s award,

we affirm.

FACTS AND PROCEDURAL HISTORY

Briggitte Yvette Ardoin and Brian Craig Ardoin were married on March 10,

1989. One child, Jenna Paige Ardoin, was born during the marriage. The marriage

was terminated by a judgment of divorce rendered in the district court on March 4,

2005. Prior to the judgment of divorce, Briggitte and Brian entered into a consent

judgment in November 2004. The consent judgment provided for joint custody of the

minor child, with Briggitte designated domiciliary parent and Brian granted visitation

on alternating weekends and certain specified periods during the summer. Brian was

to provide Briggitte at least seventy-two hours advance notice if he was unable to

exercise his visitation privileges.

Brian also was ordered in the consent judgment to pay Briggitte $685.15 for

child support and an additional $234.55 per month in temporary spousal support.

Further, Brian consented to pay for and attend two counseling sessions with a

licensed professional counselor. The parties were to maintain health insurance on the

minor child, with Brian responsible for seventy-one percent and Briggitte twenty-nine

percent of the cost of insurance and non-covered medical expenses. The consent

judgment also ordered the parties to refrain from speaking derogatorily about the

other in the presence of the minor child.

The parties also agreed to a community property partition. In the partition,

Briggitte received the community home, Chrysler Sebring automobile and household

furnishings. Briggitte assumed the debt for the house, car, community loans and

-1- credit cards. Brian received the Chevrolet pickup, a boat, a four-wheeler, a hunting

collection and a computer. Brian assumed the note on the boat, four-wheeler, truck

and computer.

Briggitte subsequently filed a motion before the district court seeking an

increase in child support, permanent spousal support, and that Brian be held in

contempt for not complying with various provisions of the consent judgment.

After a hearing on the motion, the trial court found both parties received

increases in their monthly compensation since the consent judgment. Calculating the

increases under the guidelines for Louisiana child support, the trial court ordered

Brian to pay $705.00 a month in child support. The trial court also found Briggitte

“free of significant fault” in causing the breakup of the marriage and awarded her

$250.00 per month as permanent spousal support. The trial court did not find Brian

in contempt of the consent judgment but did place him on notice that the court would

“not tolerate non compliance with the provisions of the Consent or Stipulated

Judgment.” Brian appealed the portion of the trial court’s judgment awarding

Briggitte permanent spousal support.

ANALYSIS

The award of alimony after divorce is governed by La.Civ.Code articles 111

and 112, which provide in pertinent part:

Art. 111. Spousal support; authority of court

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles.

Art. 112. Determination of final periodic support

A. The court must consider all relevant factors in determining the

-2- entitlement, amount, and duration of final support. Those factors may include:

(1) The needs of the parties.

(2) The income and means of the parties, including the liquidity of such means.

(3) The financial obligations of the parties.

(4) The earning capacity of the parties.

(5) The effect of custody of children upon a party’s earning capacity.

(6) The time necessary for the claimant to acquire appropriate education, training, or employment.

(7) The health and age of the parties.

(8) The duration of the marriage.

(9) The tax consequences to either or both parties.

B. The sum awarded under this Article shall not exceed one-third of the obligor’s net income.

The initial consideration in determining if a claimant is entitled to permanent

spousal support is whether he or she is free from fault in causing the breakup of the

marriage. La.Civ.Code art. 111. Brian does not argue in his brief that the trial court

erred in finding Briggitte free from fault; therefore that issue is not before us. Once

the lack of fault is established, the basic tests for the amount of spousal support are

the needs of that spouse and the ability of the other spouse to pay. Knowles v.

Knowles, 02-331 (La.App. 3 Cir. 10/2/02), 827 So.2d 642.

In his brief, Brian argues that permanent spousal support is “simply not

warranted by the numbers.” He contends the evidence produced at the hearing

indicates Briggitte makes an income, when combined with the child support, that is

“more than sufficient to meet both she [sic] and the child’s needs.” The evidence

submitted at trial does not support Brian’s contention.

-3- Briggitte’s W-2 statement was entered into evidence, which showed she earned

a net pay of $1,508.98 per month. Briggitte testified and produced monthly

statements that established she incurred $1,755.63 in monthly expenses. This results

in a deficit of $246.65 between Briggitte’s earnings and expenses. This evidence is

undoubtedly what the trial court relied upon in rendering its award of $250.00 in

permanent spousal support.

The trial court also noted in its reasons for judgment that Brian received an

increase in pay. Although Brian argues in brief that he will only gross $49,000.00 in

2005, that figure is not supported by the payroll records submitted into evidence. For

the first three months of 2005, the payroll records from Brian’s employer demonstrate

that he earned $15,436.00 in gross income. As Brian testified he expected he would

continue to make the same amount of money for the remainder of 2005, this projects

to a yearly salary of $61,744.00. After his child support obligation is deducted,

Brian’s monthly net income is in excess of $3,000.00. The record indicates Brian’s

monthly expenses amount to approximately $2,500.00, which includes the payment

of notes on a boat and a four-wheeler. The record does not support Brian’s argument

that he has greater expenses than income.

We also note the parties agreed in the consent judgment that Briggitte was

entitled to $234.55 in temporary spousal support to satisfy her basic household

expenses and monthly recurring debts. Now on appeal, Brian asserts Briggitte is not

in need of any spousal support. However, Brian has not alleged any change in

circumstances since the consent judgment that would indicate Briggitte is no longer

in need of spousal support other than his insistence that his child support payment

should be used as a dollar-for-dollar setoff against Briggitte’s entitlement to spousal

support. The trial judge obviously refused to employ Brian’s rigid setoff formula.

-4- “The trial court is vested with great discretion in making alimony

determinations, and its judgment will not be disturbed absent a manifest abuse of

discretion.” Goodnight v. Goodnight, 98-1892 p. 7 (La.App. 3 Cir. 5/5/99), 735

So.2d 809, 814. We find nothing in the record to indicate the trial court’s award of

$250.00 per month in permanent alimony was an abuse of its discretion.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed to appellant, Brian Craig Ardoin.

-5- NUMBER 06-245

PETERS, J., concurring in part and dissenting in part.

While I concur in the majority’s affirmation of the trial court’s award of

permanent spousal support, I respectfully disagree with the majority’s affirmation of

the amount of the award, $250.00, to Mrs. Ardoin. My review of the record causes

me to conclude that Mr. Ardoin’s request for a decrease has merit.

As pointed out by the majority, Mrs. Ardoin’s net monthly income from her

employment was found by the trial court to be $1,508.98, and she testified to total

monthly expenses of $1,755.63. Were that the end of the inquiry, I would agree that

the trial court award should be upheld. However, the trial court also awarded Mrs.

Ardoin $705.00 per month as support for the minor child born of the marriage. Thus,

the combined trial court awards gave Mrs. Ardoin $2,213.98 in total available

monthly income for her support and the support of her child.

The child support award was decided strictly on La.R.S. 9:315.19 and, based

on the table found in that statute, represents seventy-one percent of the monthly cost

of raising the child. Absent extraordinary expenses, use of the table to set child

support requires nothing more than evidence of the combined adjusted monthly gross

income of the parents. That is to say, issues such as cost of housing, clothing,

transportation, and education are simply incorporated into the calculations which

comprise the table. The problem I find with the award to Mrs. Ardoin is that the expenses she presented to the trial court in support of the permanent spousal support

award overlap with the expenses already incorporated into the child support award.

These expenses include specifically maintaining a home for the child ($546.65, which

includes house note, telephone, water, and electricity), transportation costs ($611.16,

which includes the car note, insurance, and gas), and health insurance for the child

($123.07).

The majority places significant emphasis on the fact that the parties had

previously entered into a consent decree wherein Mr. Ardoin agreed to pay $234.55

in interim spousal support. However, the award at issue is not interim spousal

support, but permanent spousal support. The trial court may award interim spousal

support “based on the needs of that party, the ability of the other party to pay, and the

standard of living of the parties during the marriage.” La.Civ.Code art. 113

(emphasis added). The “standard of living” criterion does not apply to permanent

spousal support. Rather, permanent spousal support is strictly “based on the needs

of that party and the ability of the other party to pay.” La.Civ.Code art. 111.

The trial court award allows Mrs. Ardoin double recovery and provides for an

award that exceeds her “needs.” Thus, in my opinion, the trial court abused its

discretion in awarding Mrs. Ardoin $250.00 per month. To prevent this double

recovery, I believe we must consider and deduct from Mrs. Ardoin’s total expenses

the proportionate cost of those expenses covered by the child support award. Neither

litigant made any effort to do so. However, the complete record is before us, and I

would reduce the award to correspond with the evidence presented.

Even assuming that housing and transportation expenses were divided such that

seventy-five percent of the amount paid monthly in these categories was credited to

2 Mrs. Ardoin, her share of those expenses would be $952.30 [(0.75 x $1,157.81) +

(0.29 x 0.25 x 1,157.81)]. That would reduce her direct personal expenses to

$1,550.12. Additionally, the daughter’s health insurance is definitely factored into

the child support. Thus, she is responsible for only $35.69 of that amount (0.29 x

123.07). This would reduce her personal expenses to $1,514.43, to be balanced

against her net income of $1,508.98. The record is not clear whether the other basic

monthly expenses for items such as groceries and clothing include costs for the child,

but giving Mrs. Ardoin the benefit of the doubt, her personal expenses barely exceed

her monthly income.

Given the record before me, I would find that any spousal support award

exceeding $75.00 per month would be an abuse of discretion. This does not leave

Mrs. Ardoin without a remedy when the child reaches the age of majority, as she can

avail herself of the provisions of La.Civ.Code art. 114 and seek an increase based on

the material change of circumstances.

I would affirm the judgment awarding spousal support, but would amend the

award by reducing it to $75.00 month.