Fontana v. Fontana

136 So. 3d 173, 2013 La.App. 4 Cir. 0916, 2014 WL 700614, 2014 La. App. LEXIS 363
CourtLouisiana Court of Appeal
DecidedFebruary 12, 2014
DocketNo. 2013-CA-0916
StatusPublished
Cited by6 cases

This text of 136 So. 3d 173 (Fontana v. Fontana) 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
Fontana v. Fontana, 136 So. 3d 173, 2013 La.App. 4 Cir. 0916, 2014 WL 700614, 2014 La. App. LEXIS 363 (La. Ct. App. 2014).

Opinions

ROSEMARY LEDET, Judge.

11 This is a post-divorce matter. Jules A. Fontana, III, the former husband, appeals the trial court’s February 25, 2013 judg[176]*176ment in favor of his former wife, Mary D. Fontana. In its judgment, the trial court makes the following five rulings: (i) awards Mrs. Fontana $3,369.50 per month for three years in rehabilitative spousal support; (ii) awards Mrs. Fontana $4,176.59 per month in child support for the two minor children;1 (iii) makes $3,940.00 arrearages of support executory; and (iv) finds Mr. Fontana in contempt for failure to pay support; and (v) awards Mrs. Fontana $1,500.00 in attorneys’ fees and $87.00 in court costs based -on the contempt finding. Mr. Fontana contends that all five rulings are erroneous.

For the reasons that follow, we amend the spousal support award to $2,990.77 and affirm the amended award; affirm the child support award; and reverse the making arrearages executory, the finding of contempt, and the associated attorneys’ fees and court costs awards.

| .FACTUAL AND PROCEDURAL BACKGROUND

On March 20,1992, Mr. and Mrs. Fonta-na were married in Orleans Parish and established their matrimonial domicile there. Four children were born of the marriage: Claire Fontana (born January 11, 1993), Margaux Fontana (born April 10, 1994), Harrison Fontana (born August 25, 2000), and Wyatt Fontana (born November 14, 2007).

On January 4, 2011, Mrs. Fontana filed a petition for divorce pursuant to La. C.C. art. 102. In her petition, she requested, among other things, joint custody,' child support, and interim spousal support. On March 2, 2011, Mr. Fontana reconvened and sought relief including custodial time with his minor children. On March 15, 2011, the parties executed an interim consent judgment. In the consent judgment, the parties agreed that Mr. Fontana would pay a monthly lump sum of interim spousal support and child support, which had two components: payments of a multiple enumerated direct expenses and a monthly cash payment of $2,750.00.2 The consent judgment stated that it was understood any ultimate award would be retroactive to January 4, 2011, subject to any credits. The consent judgment also provided for shared physical custody of the minor children, Harrison and Wyatt Fontana, on an alternating weekly basis.

On March 20, 2011, Mrs. Fontana filed an amended and supplemental amended petition for divorce to add the following allegation:

Petitioner is free from fault and is without sufficient means for her support and defendant is gainfully employed with substantial | fincóme and should be ordered to pay to petitioner final spousal support to be determined by the court in accordance with law.

On May 20, 2011, the trial court judge signed the consent judgment.

On April 30, 2012, Mr. Fontana filed a Motion for Delineation and Determination of Child Support and Interim Spousal Support, Fault, Final Spousal Support, and Termination of Interim Spousal Support.

On June 14, 2012, a final judgment of divorce was entered.

On November 20, 2012, Mrs. Fontana filed a Motion for Contempt, to Accumu[177]*177late and Make Executory Past Due Support, with Interest, Attorneys’ Fees, Costs. In her contempt motion, Mrs. Fontana averred that Mr. Fontana has “failed to pay interim spousal support in the sum of $3,940.00 in reimbursement expenses, and has not paid the cash amount which is due for the month of November, 2012.”

On November 27, 2012, the trial court considered the three pending motions— Mrs. Fontana’s motion for permanent spousal support, Mr. Fontana’s motion that the amount of child support be delineated and that Mrs. Fontana’s request for permanent spousal support be denied, and Mrs. Fontana’s rule to make past-due support amounts executory and motion for contempt for failure to pay past-due support and reimbursements.

At the hearing on that date, three witnesses testified: (i) Mr. Fontana; (ii) Mrs. Fontana; and (iii) John F. Maggiore, Jr., CPA. To provide a background for analyzing the issues raised on appeal, we briefly outline the evidence presented at the hearing.

(i) Mr. Fontana

Mr. Fontana testified that he has been an attorney for almost twenty years. He eo-owns a law firm, Fontana & Fontana, with his brother; they, are equal 1^partners. He described his annual income from the law firm over the prior three years as “pretty consistent;” his annual income for each of those years was over $300,000. Although he received over $300,000 in draws from his law firm in 2010, Mr. Fontana conceded that he paid no taxes to the Internal Revenue Service (“IRS”) for that year. As a result, the community has an outstanding tax liability to the IRS of about $130,000, including penalties and interest. Mr. Fontana testified that in 2011 he made $80,000 in deposits with the IRS for his 2011 federal taxes. He explained that he made the deposits for the 2011 tax year because Mrs. Fontana had filed for divorce in January 2011.3

Mr. Fontana testified that in the beginning of the marriage he did not want Mrs. Fontana to work; however, she has worked at different jobs at different times throughout the marriage. Mr. Fontana acknowledged that the parties’ joint return for 2008 reflected that Mrs. Fontana’s only income was a $280 profit from her catering business, Creole Festival Services. Mr. Fontana testified that Mrs. Fontana’s “income was not a big factor to [him] in the marriage because it wasn’t enough.”

(ii) Mrs. Fontana

[ fiMrs. Fontana testified that she graduated from Loyola University in 1988 with an undergraduate degree in advertising and a minor in religious studies. She has never worked in either field. After graduating from college, she worked for the State of Louisiana in the office of family support. In 1992, she married Mr. Fonta-na. In January 1993, their first child was born. Thereafter, she worked on a part-time basis. Her work history included “a [178]*178little landscaping;” working for Rehage Entertainment (“Rehage”) doing athletic events, such as “walk/runs;” and bookkeeping. She testified that she stopped working after their third child was born in 2000 because Mr. Fontana did not want her to work.

In July 2011, Mrs. Fontana’s mother died, leaving a substantial estate valued at approximately $4.5 million. Mrs. Fonta-na’s share • of the estate included' $600,000.00 in Merrill Lynch accounts, which were broken down as follows: $400,000.00 in an IRA account and $200,000.00 in a cash management account (“CMA”). Mrs. Fontana also received money from the 2011 estate sale of her mother’s house (between $20,000 and $25,000) and a mandatory distribution from her mother’s life insurance policy. Mrs. Fontana testified that “it was this bulk [of money] and the other amounts that went into one kitty” that she used to purchase a new house in Lakeview for $250,000 in cash. She also spent another $200,000 on renovating the house. She explained that the renovations were not luxury items, but rather necessities given the dilapidated condition of the house. She further explained that the reason she purchased the new house was because she was worried about where she and her children were going to end up after the divorce. She still further explained that her family lives in Lakeview and that she wanted to be close to her family.

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Bluebook (online)
136 So. 3d 173, 2013 La.App. 4 Cir. 0916, 2014 WL 700614, 2014 La. App. LEXIS 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontana-v-fontana-lactapp-2014.