Eugene John Terry v. Wilma Jane Terry, Born Jones

• Court: Louisiana Court of Appeal
• Decided: May 6, 2009
• Docket: CA-0008-1573
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-1573

EUGENE JOHN TERRY

VERSUS

WILMA JANE TERRY, BORN JONES

**********

APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-461-04 HONORABLE CRAIG GUNNELL, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Shannon J. Gremillion, Judges.

AFFIRMED.

M. Keith Prudhomme Mudd & Bruchhaus, L.L.C. 410 E. College Street Lake Charles, LA 70605 (337) 562-2327 Counsel for Plaintiff/Appellee: Eugene John Terry

Anne E. Watson Dupre & Watson, L.L.C. 232 N. Liberty Street Opelousas, LA 70570 (337) 942-9790 Counsel for Defendant/Appellant: Wilma Jane Terry, Born Jones DECUIR, Judge.

Wilma Jones Terry (hereinafter “Jones”) appeals a judgment denying her

request for final periodic spousal support. For the following reasons, we affirm.

Jones married Eugene John Terry in 1987. No children were born of the

marriage. The parties separated seventeen years later and divorced in 2005. Shortly

after the divorce, Jones lost her job with Southside Development Corporation, a

nonprofit organization founded by her husband where she worked first as an

administrative assistant and then later as CEO. In the last year of her employment

there, she earned an annual salary of $84,000.00. Subsequent to losing her job with

Southside, Jones petitioned the court for periodic spousal support. The trial court

denied Jones’ petition, holding that she failed to prove freedom from fault in the

dissolution of the marriage. This court reversed on the issue of fault and remanded

for a determination of Jones’ need for support and Terry’s ability to pay. See Terry

v. Terry, 06-1406 (La.App. 3 Cir. 3/28/07), 954 So.2d 790, writ not considered, 07-

928 (La. 6/22/07), 959 So.2d 486.

On remand, the trial court again ruled against Jones, finding her to be

voluntarily underemployed. The court held “JONES has the abilities, training,

education, and experience that would permit her to obtain a job in which she could

earn a salary of what her skills accurately reflect. While JONES may not be able to

earn a salary of $84,000.00 per year, she has the capacity and ability to earn more

than her current job affords her which would meet her basic needs.” In this appeal,

Jones contends the trial court erred in considering the issue of underemployment, as

that question was decided in the first trial prior to remand by the appellate court. She

further argues that the determination that she is underemployed is erroneous. At the time of trial, Terry was 52 years old and had worked for Entergy as a

service man for nearly thirty years. In some years he earned as much as $100,000.00,

depending on overtime and other factors. Terry testified that he has a girlfriend

whose father he supports and acknowledged that he has provided no support to Jones

since the time of their separation.

Jones was 57 years old at the time of the second trial. She has five years of

college education but never obtained a degree. She served in the United States Air

Force, worked for the Department of Agriculture, and then worked for Southside

Development Corporation. Jones described Southside as a nonprofit community

development and social services agency. Once she lost her job with Southside, Jones

applied for and received six months of unemployment benefits and filed for

bankruptcy in July of 2005. She testified that she applied for numerous positions

between Lafayette and Lake Charles, finally finding work in March of 2007 with the

Calcasieu Parish School Board at $9.00 per hour. Although she still had the job at

the time of trial, Jones testified that she was unable to work and received no pay for

a two month period in 2007 because of medical problems.

The evidence in the record showed Jones’ monthly net income to be $1,137.78

and her monthly living expenses to be $2,218.04. With five years of college

education, she has good credentials. She has varied, well-paying work experience.

She lives in Jennings in a house belonging to her mother, although she testified that

she pays the mortgage note. During the time of her unemployment, Jones declared

bankruptcy and borrowed nearly $100,000.00 from friends for living expenses,

medical bills, charges for her father’s funeral, and other costs. One friend, who

testified at trial that he has loaned Jones over $60,000.00, lives with his family in a

2 mobile home on Jones’ mother’s property rent free, although he pays the water bill

for the property and maintains the yard.

Louisiana Civil Code Article 112(A) provides that for a spouse to receive

permanent alimony, he or she must lack sufficient means for support and not be at

fault. “Unlike alimony pendente lite, permanent alimony is not meant to support a

divorced spouse in the manner to which he or she was accustomed while married.

Post-divorce alimony is in the nature of a pension meant to cover the basic necessities

of life. Preis v. Preis, 631 So.2d 1349, 1353 (La.App. 3d Cir.1994).” January v.

January, 94-882, p. 5 (La.App. 3 Cir. 2/1/95), 649 So.2d 1133, 1137. For Jones to

be awarded permanent alimony in this case, her means must be inadequate to provide

basic support.

In determining an award of support, the court must consider all relevant factors.

“Difficulty in finding employment suitable for the spouse’s age, training, and ability

is a proper consideration in determining whether a claimant is voluntarily

underemployed.” Patton v. Patton, 37,401, p. 4 (La.App. 2 Cir. 9/24/03), 856 So.2d

56, 60. The trial court’s ruling on a request for periodic spousal support will not be

disturbed on appeal absent a clear showing of manifest error. Coco v. Coco, 95-1106

(La.App. 3 Cir. 1/31/96), 670 So.2d 354, writ denied, 96-531 (La. 4/8/96), 671 So.2d

341.

The trial court in the instant case was apparently swayed by Jones’

“extravagant lifestyle” prior to her divorce and her lengthy period of unemployment.

She lived on borrowed funds, yet allowed friends to live rent free on her mother’s

property. She paid her parents’ mortgage note and phone bill and let her mother use

an extra car she had for which Jones paid the monthly note of $600.00 until she

3 declared bankruptcy. She had two cell phone lines. While Jones testified as to the

numerous job applications she made, she stated that she would prefer to finish college

in the hopes of getting a better paying job.

Jones is earning far less than she did at Southside Development. The trial court

considered many factors including her age, community, and lack of a college degree

in the denial of spousal support in this case. The record is clear that Terry has the

ability to pay support to his former wife. We also find the record clearly shows Jones

has the experience, education, and credentials to support herself. We find no manifest

error in the trial court’s factual finding that Jones has sufficient means to provide for

her own basic needs.

For the above and foregoing reasons, the judgment of the trial court is affirmed

Costs of this appeal are assessed to Wilma Jones Terry.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.