Dunn v. Dunn

546 So. 2d 819, 1989 WL 62504
CourtLouisiana Court of Appeal
DecidedJune 7, 1989
Docket89-CA-76
StatusPublished
Cited by10 cases

This text of 546 So. 2d 819 (Dunn v. Dunn) 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
Dunn v. Dunn, 546 So. 2d 819, 1989 WL 62504 (La. Ct. App. 1989).

Opinion

546 So.2d 819 (1989)

Myra Ungar Dunn, Wife of Thomas E. DUNN
v.
Thomas E. DUNN.

No. 89-CA-76.

Court of Appeal of Louisiana, Fifth Circuit.

June 7, 1989.

*821 Caren M. Morgan, Morgan & Kissel, Gretna, for plaintiff-appellee.

Gibson Tucker, Jr., New Orleans, for defendant-appellant.

Before KLIEBERT, DUFRESNE and WICKER, JJ.

DUFRESNE, Judge.

Thomas E. Dunn appeals a judgment which awarded his former wife, Myra Ungar Dunn, child support and alimony arrearages in the amount of $25,663.70, held him to be in contempt for failure to pay, and sentenced him to thirty days' imprisonment. We affirm in part, reverse in part, and render.

Myra obtained a separation from Thomas by consent judgment decreeing her free of fault on January 29, 1985. That judgment stipulated that Thomas would pay Myra $256.00 per week in alimony pendente lite and $400.00 per week in child support. It also stipulated that Thomas would pay certain debts, including tuition, school expenses, summer camp fees, and camp expenses for the two minor children, and that Myra would pay certain other debts. In the judgment there are certain of the debts which are qualified by the phrase "out-standing as of the date of the signing of this judgment." The school and camp obligations are not so qualified. The judgment stipulated that Thomas would maintain health and life insurance in force and transfer the ownership of the life insurance to Myra. (See Appendix.)

Myra obtained a divorce by default on August 26, 1985. The judgment was silent on the issue of support for either Myra or the children, but the parties apparently continued to abide by the obligations in the separation judgment.

Thomas filed a rule to decrease on April 28, 1987, alleging a change in circumstances. That rule resulted in another consent judgment, dated June 16, 1987, awarding Myra $100.00 per week in alimony and $200.00 per week in child support. There is no provision in the judgment for payment of school, camp, or health insurance expenses.

Myra filed a rule for contempt on June 9, 1988, alleging arrearages of $12,600.00. Her pleading refers only to the provisions of the June 16, 1987, judgment and not to any previous judgment. In response, Thomas filed a rule to decrease, which was met by Myra's rule to increase.

On July 18, 1987, the parties first met with the hearing officer. At trial they advised the judge that the officer had recommended the rule for contempt be satisfied by an immediate payment of $5,000.00. Myra had agreed to accept $5,000.00 for what she then claimed was an approximately $7,000.00 arrearage. Thomas did not agree with the $7,000.00 allegation but could not provide an alternative figure on arrearages; he was willing to stipulate what he had paid. The issues between the parties were whether the obligation to pay school and camp expenses was a continuing one and whether Thomas was entitled to certain credits against his obligation to pay.

Thomas' attorney then objected to going forward with the hearing and requested a continuance. One of the grounds was Myra's alleged failure to comply with the court rules. After the judge ruled against the continuance, Myra put on the record her response to Thomas' argument in favor of the continuance, alleging that in her deposition shortly before the rule she gave Thomas her income and expense sheet.

When Thomas, an attorney, was called to the stand for cross-examination, he would not answer questions with a simple yes or no answer, repeatedly trying to qualify or explain his answer. He was allowed to *822 explain how he contended he had complied with the terms of the consent judgment: although he had not made some payments directly to Myra and the children, he had made them "on behalf of Myra and the children." He considered himself entitled to credit for those payments; and he conceded that, if you do not take into consideration those payments, there was an arrearage on the weekly payments. Those payments at issue consisted of tuition paid at the request of Myra and the school administration, a payment of one of the debts Myra had assumed under the original consent separation judgment, and two payments to their son. Thomas referred Myra and the court to the detailed list of payments he'd already submitted and to which Myra stipulated. While Myra's counsel was cross-examining Thomas on his list of uncontested payments, the court interrupted and stated

... it's not fair for the Court or the other parties that are involved in the Proceedings to have to go individually through all the items, where Mr. Dunn is trying to be as difficult as he can be, in order to determine what the amounts are.

At this point the trial judge ordered the appointment of a C.P.A. to go through the records "to find out what has been paid...." He interrupted Thomas' attorney to remark, "If Mr. Dunn wants to see how difficult he can be in the Court, and I'll help him." Myra's attorney again stated that the only dispute was not with Thomas' figures but with what "he's entitled to credit for." When Thomas objected to being cast for costs of the audit, since he had provided an uncontested record of the payments he'd made, the trial judge stated

He's the one that's being difficult on it. So, we'll find out where it is. He wants to try to give evasive answers and he wants to try to do things that show how he can evade it. He thinks he's playing a game or something....

Myra filed another rule for contempt against Thomas, this time alleging his failure to turn over to the accountant certain documents alleged to be needed for the audit.

The hearing resumed seven weeks later on September 20, 1988, in effect giving Thomas the continuance he had originally asked for and giving him time for additional discovery. Myra at that point furnished Thomas with a list "of charges and credits" showing Thomas' total delinquency to be about $26,000.00. The trial judge sent the parties once again to the hearing officer, who recommended payment of arrearages totaling almost $26,000.00, including amounts for tuition, camp, and medical expenses. Myra then amended her demand from $12,600.00 to $26,182.00 over Thomas' objection that he was now being faced with a different theory of recovery without notice or opportunity to prepare a defense. Myra responded that, while the total amounts might be a surprise, Thomas knew all along that she was claiming amounts due for school and medical expenses.

Myra testified that Thomas was behind on his cash payments by $10,576.98. She added to that tuition arrearages of $4,592.61, medical insurance costs and medical expenses of $7,484.12, and out of pocket school and camp expenses of $3,529.00, totalling $26,182.61. She testified that Thomas had not paid anything in child support since the previous hearing and that the last child support payment of $100.00 was made in March. On cross-examination, she said that every time the question of tuition payments came up, she referred the school administration to Thomas. Although she sometimes paid the school bills, she always referred them to Thomas first, feeling it was his obligation under the original judgment.

The business manager for the children's private school testified that on all contracts but the one in 1985 Myra signed as the person responsible for tuition. On the 1985 contract, the responsible party was listed as Thomas. He testified that financial aid was granted the children but that it would not have been had the school known of the existence of a court document stating that Thomas was responsible for tuition.

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Cite This Page — Counsel Stack

Bluebook (online)
546 So. 2d 819, 1989 WL 62504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-dunn-lactapp-1989.