Dufresne v. Dufresne

65 So. 3d 749, 10 La.App. 5 Cir. 963, 2011 La. App. LEXIS 547, 2011 WL 1775890
CourtLouisiana Court of Appeal
DecidedMay 10, 2011
DocketNo. 10-CA-963
StatusPublished
Cited by25 cases

This text of 65 So. 3d 749 (Dufresne v. Dufresne) 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
Dufresne v. Dufresne, 65 So. 3d 749, 10 La.App. 5 Cir. 963, 2011 La. App. LEXIS 547, 2011 WL 1775890 (La. Ct. App. 2011).

Opinion

FREDERICKA HOMBERG WICKER, Judge.

lijThis is the second appeal in a domestic matter in which the former spouse, Mark Dufresne, appellant, now appeals the April 16, 2010 judgment that followed this Court’s remand. Mr. Dufresne specifies as errors the trial court’s ordering Mr. Dufresne to pay final child support in the amount of $3000 per month; the trial court’s alleged noncompliance with this Court’s remand order; the trial court’s denying his request that tuition expenses be paid by Mr. Dufresne directly; and, the trial court’s awarding final periodic spousal support to Ms. Dufresne, appellee, in the amount of $1025 per month for a term of 60 months. Mr. Dufresne also asks this court to reverse the portion of the judgment that requires the parties to exchange income information on a yearly basis. For the reasons that follow, we affirm.

Facts

Mark Dufresne and Cindy M. Dufresne were divorced in 2006. One child was born of this marriage, namely, Mia Dufresne, on April 10, 1996. In 2007, the trial court rendered judgment in pertinent part awarding sole custody to Ms. | ¡¡Dufresne, ordering supervised visitation to Mr. Du-fresne until he completed a treatment program pursuant to domestic abuse statutes, child support in the amount of $2,240.00 per month, interim spousal support in the amount of $3,500.00 per month, final spousal support in the amount of $1,000.00 per month for 60 months, and attorney’s fees, court costs, and all other necessary counseling costs for the minor child pursuant to the domestic abuse statutes. On June 18, 2007, the trial judge granted Ms. Dufresne’s Motion for New Trial and amended the judgment, with among other things to provide that all supervised visitation take place in the New Orleans metropolitan area, to make the child support award interim, and to make the final spousal support award interim. In a separate judgment, the court awarded retroactive interim spousal support and child support. Dufresne v. Dufresne, 08-215, pp. 2-3 (La.App. 5 Cir. 9/16/08), 992 So.2d 579, 583, writ denied, 08-2843 (La.12/17/08), 996 So.2d 1123.

This Court affirmed the judgment in part, vacated it in part, and remanded the matter with instructions. We found no error in the trial court’s determinations in the following respects: (1) the award of sole custody to Ms. Dufresne with supervised visitation to Mr. Dufresne in New Orleans; (2) the award of interim spousal support in the amount of $3,500 per month given the lifestyle of the parties during the marriage and the disparity in earning capacity of the parties; (3) the finding that Ms. Dufresne was free from fault; (4) the finding that Ms. Dufresne was not in contempt of court; and, (5) the refusal to credit Mr. Dufresne for payment of private school tuition. However, we vacated the portions of the trial court’s judgment which awarded attorney’s fees and costs, child support, and final spousal support. We remanded the matter with instructions as to the vacated portions of the judgment. Dufresne, supra at 17, 992 So.2d at 590.

| ¿Pertinently, we ordered the trial court to make an award of child support based on a determination of the parties’ combined income or to provide reasons for deviating from the guidelines as provided for in La.R.S. 9:315.1. We also remanded the matter for a determination of an award of final periodic spousal support considering all relevant factors, including Ms. Dufresne’s need. Dufresne, supra, at 14-15, 992 So.2d at 589.

Upon remand, the former trial judge signed a pleading styled “REASONS FOR [753]*753DEVIATION FROM GUIDELINES.”1 Thereafter, the parties filed various motions. These, along with the remand matters, were heard at an evidentiary hearing before the current judge on September 29, 2009.

On April 16, 2010, the trial judge rendered judgment and provided extensive reasons. On appeal, Mr. Dufresne challenges those portions of the judgment awarding final child support to Ms. Du-fresne in the amount of $8000 per month, the yearly exchange of financial information, the denial of his rule to reduce child support or alternatively to pay expenses directly, the award of final spousal support to Ms. Dufresne in the amount of $1025 per month payable for a term of 60 months, and the trial judge’s decree that the court satisfied this Court’s remand on the issue of child support when the prior judge rendered his reasons for deviating from the guidelines.

Manifest Error

Appellant argues that the trial judge was manifestly erroneous in various respects, asking this court to reverse the award of child support and calculate an award based upon the evidence.

| sMr. Dufresne argues that the trial judge erred by undertaking a post-trial independent investigation, when the trial judge indicated that she was taking judicial notice of alleged real estate transactions involving Mr. Dufresne.

In separate reasons for judgment, the trial judge gave numerous reasons for deviating from the child support guidelines and awarding child support in the amount of $3000 per month. Mr. Dufresne complains about two footnotes in that discussion. Both footnotes state in part that the court took “judicial notice from public, governmental deed and assessment records readily available from reliable sources” that Mr. Dufresne recently purchased property in Texas and property in New Orleans; the 2009 assessment of the Texas property was almost $2 million; and the New Orleans property possibly generated rental income given that Mr. Dufresne resided in Texas and had a vacation home in Florida.

Mr. Dufresne asserts that the trial judge erred by taking judicial notice of alleged real estate transactions that were not in evidence and for which judicial notice was inappropriate. Furthermore, he contends that the trial judge took notice of the alleged facts without notice to either party and without even identifying the source of the information or otherwise establishing its reliability. We agree.

In order for the trial court to take judicial notice of an adjudicative fact, such as those set out as purported facts or conclusions in the footnotes, the fact must be “one not subject to reasonable dispute in that it is either ... [generally known within the territorial jurisdiction of the trial court; or ... [cjapable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” La.C.E. art. 201(B)(1) and (2). Courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. State Block, Inc. v. Poche, 444 So.2d 680, 684 (La.App. 5 Cir. 1984). Accordingly, the | ^alleged real estate transactions and values as well as the potential that a New Orleans property could be used for rental income are not [754]*754matters about which judicial notice may be taken.

However, reasons for judgment by a trial judge are not controlling and do not constitute the judgment of the court. The trial court’s reliance on “evidence” that was not introduced at trial does not preclude our finding that there is no abuse of discretion in deviating from the guidelines and awarding final child support in the amount of $3000. A judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art. 1918. Appeals are taken from the judgment, not the written reasons for judgment. See: La.C.C.P. arts. 2082, 2083; Greater New Orleans Expressway Com’n v. Olivier, 02-2795, pp.

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Bluebook (online)
65 So. 3d 749, 10 La.App. 5 Cir. 963, 2011 La. App. LEXIS 547, 2011 WL 1775890, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dufresne-v-dufresne-lactapp-2011.