Evans v. Evans

145 So. 3d 1093, 2014 La. App. LEXIS 2006, 2014 WL 2875068
CourtLouisiana Court of Appeal
DecidedJune 25, 2014
DocketNo. 49,160-CA
StatusPublished
Cited by8 cases

This text of 145 So. 3d 1093 (Evans v. Evans) 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
Evans v. Evans, 145 So. 3d 1093, 2014 La. App. LEXIS 2006, 2014 WL 2875068 (La. Ct. App. 2014).

Opinion

GARRETT, J.

| Mames A. Evans appeals from a trial court judgment granting his wife, Terri [1094]*1094Wilson Evans, interim spousal support of $2,800 per month. We affirm the trial court judgment.

FACTS

The parties were married in 2003. No children were born of the marriage. On June 18, 2013, Ms. Evans filed for divorce in Caldwell Parish, where she lives and the site of their last matrimonial domicile, alleging that she had recently discovered that her husband was conducting an “improper and inappropriate relationship” with another woman while working in Pennsylvania. She requested that she be awarded both interim and permanent spousal support and that she be maintained on her husband’s health and hospitalization insurance. She also requested that Mr. Evans be enjoined from alienating, encumbering, concealing, disposing of, or destroying community property; a temporary restraining order so providing was issued. A rule was set for August 14, 2013, on the request for interim spousal support and incidental matters.

Mr. Evans initially filed an answer in proper person in which he generally denied the allegations. Through counsel, he later filed a motion to continue the rule, another answer, and a reconventional demand in which he requested a restraining order to prevent his wife from selling, donating or alienating community property without court approval.

The hearing on interim spousal support was eventually held on October 2, 2013. The parties were the only witnesses to testify. At the outset, Mr. Evans tried to stipulate that he had the ability to pay $3,000 per 12month to preclude inquiry into his financial situation. However, Ms. Evans declined the stipulation due to the “great abundance of ability to pay” being a relevant factor in the matter.

Evidence was adduced that, following his recent promotion, Mr. Evans’ weekly gross pay had just risen from $4,500 as a pipeline foreman to $4,800 as an assistant superintendent. Ms. Evans produced evidence that she had monthly expenses of $2,779.45. At the conclusion of the testimony, the trial court awarded Ms. Evans interim spousal support in the amount of $2,800 per month and ordered that she be maintained on her husband’s health, hospitalization, dental and vision insurance. Additionally, the parties were mutually enjoined from alienating, encumbering, concealing, disposing of, or destroying community property. Judgment was signed on November 5, 2013.1

Mr. Evans appeals, arguing that his wife was voluntarily unemployed and that she failed to prove the standard of living during the marriage, a necessary element for establishing a spouse’s right to interim spousal support.

LAW

In a proceeding for divorce, the court may award an interim periodic support allowance to a spouse based on the needs of that spouse, the ability of the other spouse to pay, and the standard of living of the spouses during the marriage. La. C.C. arts. Ill and 113; Bickham v. Bickham, 46,264 (La.App.2d Cir.3/2/11), 58 So.3d 950; Brown v. Brown, 44,989 (La.App.2d Cir.1/27/10), 31 So.3d 532.

The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be [1095]*1095made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Bickham, supra; Gremillion v. Gremillion, 39,588 (La.App.2d Cir.4/6/05), 900 So.2d 262. A spouse’s right to claim interim periodic support is grounded in the statutorily imposed duty on spouses to support each other during marriage and thus provides for the spouse who does not have sufficient income for his or her maintenance during the period of separation. Bickham, supra; Brown, supra.

In order to demonstrate need for interim periodic spousal support, the claiming spouse has the burden of proving that he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the marriage. Brown, supra. Once the claimant spouse has established need, the court must examine the ability of the payor spouse to provide support. Bickham, supra.

The trial court is afforded much discretion in determining an award of interim spousal support, and such a finding will not be disturbed absent a clear abuse of discretion. Shirley v. Shirley, 48,635 (La.App.2d Cir.10/16/13), 127 So.3d 935; Brown, supra. An abuse of discretion will not be found if the record supports the trial court’s conclusions about the needs | ¿of the claimant spouse or the means of the payor spouse and his or her ability to pay. Bickham, supra; Brown, supra.

DISCUSSION

Mr. Evans claims that the trial court abused its discretion in finding that Ms. Evans proved a need for interim spousal support. He contends that the trial court should have found that Ms. Evans was voluntarily unemployed and that she had a demonstrated earning capacity of $15 per hour. In support of his argument, he cites Clark v. Clark, 34,314 (La.App.2d Cir.11/1/00), 779 So.2d 822, unit denied, 2000-3196 (La.1/12/01), 781 So.2d 563, and Kirkpatrick v. Kirkpatrick, 41,851 (La.App.2d Cir.1/24/07), 948 So.2d 390.

In Clark, supra, the trial court found the wife was voluntarily unemployed for purposes of child support and that she failed to prove need for interim spousal support under La. C.C. art. 113, and this court affirmed. However, in that case, the wife had both a bachelor’s degree and a master’s degree, each in a different field. In the five years before the divorce proceedings, she held several different jobs as a teacher or guidance counselor. Additionally, .she had also been offered at least three teaching jobs which she declined. Furthermore, she had been given use of a family vehicle and community property for housing, all without financial obligation on her part.

In Kirkpatrick, supra, the wife had a master’s degree in counseling. Although she had not earned a steady income or seen clients consistently during the marriage, she had an office and was a licensed professional |scounselor. The trial court found that the wife was voluntarily underemployed and imputed income to her for purposes of calculating interim spousal support and child support. We affirmed, concluding that the evidence showed that the wife had the ability to immediately secure employment.

In support of her contention that she is entitled to interim spousal support, Ms. Evans cites Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir.1980). Although rendered under the former alimony pen-dente lite law, Arrendell is mentioned favorably in the official revision comments to La. C.C. art. 113, which establishes the current interim spousal support provisions. In relevant part, Arrendell stated:

[1096]*1096The purpose of alimony pendente lite is to temporarily, pending litigation, provide for the spouse who does not have sufficient income for his or her maintenance. Alimony pendente lite is ordinarily determined initially by summary proceedings within a few days after litigation is commenced. The award is usually effective from the date suit is filed. In a sense, it is designed to preserve and continue the status quo insofar as maintenance and support are concerned.

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Bluebook (online)
145 So. 3d 1093, 2014 La. App. LEXIS 2006, 2014 WL 2875068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-evans-lactapp-2014.