Delesdernier v. Delesdernier

95 So. 3d 588, 12 La.App. 5 Cir. 38, 2012 WL 1957632, 2012 La. App. LEXIS 777
CourtLouisiana Court of Appeal
DecidedMay 31, 2012
DocketNo. 12-CA-38
StatusPublished
Cited by2 cases

This text of 95 So. 3d 588 (Delesdernier v. Delesdernier) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delesdernier v. Delesdernier, 95 So. 3d 588, 12 La.App. 5 Cir. 38, 2012 WL 1957632, 2012 La. App. LEXIS 777 (La. Ct. App. 2012).

Opinion

MARC E. JOHNSON, Judge.

li>This lawsuit involves past due spousal support and the supplemental partition of community property. Marc Delesdernier, Jr. appeals a judgment of the trial court awarding Vinca Carevich Delesdernier past due spousal support, and Ms. Deles-dernier appeals a judgment of the trial court denying her Petition for Supplemental Partition of Community Property.1 For the reason that follow, we amend the judgment of past due spousal support and affirm it as amended, and affirm the judgment denying the supplemental partition of community property.

FACTS & PROCEDURAL HISTORY

The parties were married in June 1956 and had three children. In October 1982, Mr. Delesdernier filed a Petition for Divorce based on the parties living separate and apart for one year. A judgment of divorce was rendered on June 25, |a1984. In the judgment of divorce, Mr. Delesder-nier was ordered to pay $2,700 per month in alimony and to maintain a $250,000 life insurance policy on his life payable to Ms. Delesdernier. He was also ordered to provide Ms. Delesdernier with a replacement vehicle every five years beginning two years from the date of the judgment.2 On the same day of the divorce judgment, the parties entered into a community property settlement.

Thereafter, Mr. Delesdernier paid $2,700 per month from the date of the divorce judgment through the end of 1986. According to Ms. Delesdernier, Mr. Deles-dernier reduced the monthly payment to $1,000 in 1987 and paid the reduced monthly payment through August 1998. In August 1998, Mr. Delesdernier increased the monthly payment to $1,500, which he continued to pay through the time the rule was filed. Mr. Delesdernier admitted reducing the monthly payment at some point, but testified he did not recall ever paying less than $1,500 per month. There was no documentary evidence regarding the monthly payments despite Ms. Delesdernier’s claim that she kept a ledger of all payments. She indicated during her November 22, 2010 deposition that she was unable to find the ledger but had seen it two months earlier.3 Mr. Delesdernier stated his records from 1986-2005 were destroyed as a result of Hurricane Katrina.

Contrary to the requirements of the 1984 divorce judgment, Mr. Delesdernier did not provide Ms. Delesdernier a replacement vehicle every five years. However, he did buy her a Mercury Grand Marquis in 1998. According to Mr. Deles-dernier, Ms. Delesdernier never asked for a car until 1998. Although the divorce judgment stated the car was to be financed over 60 months with the car |4note constituting alimony, Mr. Delesdernier could not recall anything about how the car was paid for. Ms. Delesdernier indicated that the car was financed for 60 months with a [592]*592monthly note of $534. She stated she paid the monthly car note because she was worried about what would happen if Mr. Delesdernier failed to pay the note. She explained that Mr. Delesdernier increased monthly spousal support from $1,000 to $1,500 after the purchase of the car.

On March 25, 2010, Ms. Delesdernier filed a Rule for Contempt and Arrearages seeking past due spousal support for the amount Mr. Delesdernier underpaid. In an Amended Rule for Contempt and Ar-rearages, Ms. Delesdernier indicated that she sought past due spousal support for the underpayment from 1986 through the date of filing. She also sought monthly car payments from 1986 through the date of filing claiming Mr. Delesdernier failed to provide her with a new car every five years as required by the divorce judgment.

On the same day, Ms. Delesdernier also filed a Petition for Supplemental Partition of Community Property seeking the partition of the community’s interest in Mr. Delesdernier’s Crescent River Port Pilots’ Association Pension Plan (“CRPPA Pension”). She alleged the CRPPA Pension had not been partitioned in the 1984 community property agreement.

Mr. Delesdernier responded to the filings by filing a Rule to Enforce ExtraJudicial Modification of Spousal Support and to Terminate or Reduce Spousal Support. He also asserted various affirmative defenses including equitable estoppel and laches. He subsequently filed an exception of prescription on the arrearages, which was denied after a hearing.

On June 30, 2011, the parties proceeded to a hearing on the spousal support issues. The trial court took the matter under advisement and rendered a judgment, without reasons, on August 31, 2011. In its judgment, the trial court found Mr. | ^Delesdernier owed $596,168 in spousal support arrearages plus interest from the date each payment was due. The trial court specifically found there was no extrajudicial modification or mutual agreement between the parties to reduce the spousal support ordered in the 1984 divorce judgment. The trial court further granted Mr. Delesdernier’s rule to terminate spousal support, with the exception of the life insurance policy which it ordered Mr. Deles-dernier continue to maintain. Mr. Deles-dernier timely filed a suspensive appeal.

Thereafter, on October 6, 2011, the parties proceeded to a traversal on the community property for a determination of whether the CRPPA Pension was separate or community property for purposes of Ms. Delesdernier’s Petition for Supplemental Partition. The trial court rendered judgment on October 12, 2011 denying Ms. Delesdernier’s Motion to Traverse finding that the 1984 community property agreement acknowledged complete liquidation of community assets and released Mr. Deles-dernier from further community property claims. The trial court also found that Ms. Delesdernier waived her interest in the CRPPA Pension in exchange for the $250,000 life insurance policy Mr. Deles-dernier was ordered to maintain in the 1984 divorce judgment. Ms. Delesdernier timely appealed this judgment.

ISSUES

Each party raises several issues in connection with the judgment each challenges. In his appeal, Mr. Delesdernier raises four issues relating to the judgment for arrear-ages: (1) the trial court erred in finding Ms. Delesdernier’s claim for arrearages was not prescribed; (2) the trial court erred in concluding he and Ms. Delesdernier did not confect an extrajudicial modification of the 1984 spousal support award wherein they agreed he would reduce spousal support to $1,500 per month; (3) the trial court erred in refusing to consider [593]*593his affirmative | fidefenses; and (4) the trial court erred in its calculation of arrearages relating to the replacement automobile.

In her appeal, Ms. Delesdernier raises the following issues relating to the judgment involving the CRPPA Pension: (1) the trial court erred in finding the divestiture language contained in the community property settlement agreement precluded the partition of the CRPPA Pension; (2) the trial court erred in finding she waived her interest in the CRPPA Pension in exchange for the $250,000 life insurance policy considering the language of the community property settlement agreement and even the inadmissible extrinsic evidence; and (3) the trial court erred in allowing parole evidence to determine the intent of the parties regarding the CRPPA Pension and the life insurance policy.

MOTION TO DISMISS ISSUES

After Ms. Delesdernier filed her appel-lee brief in response to his appeal, Mr. Delesdernier filed a Motion to Dismiss with this Court seeking to dismiss two issues raised by Ms. Delesdernier in her appellee brief.

In her appellee brief, Ms.

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Bluebook (online)
95 So. 3d 588, 12 La.App. 5 Cir. 38, 2012 WL 1957632, 2012 La. App. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delesdernier-v-delesdernier-lactapp-2012.