Hester v. Hester

804 So. 2d 783, 2001 WL 1616207
CourtLouisiana Court of Appeal
DecidedDecember 12, 2001
Docket2001-CA-0380
StatusPublished
Cited by3 cases

This text of 804 So. 2d 783 (Hester v. Hester) 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
Hester v. Hester, 804 So. 2d 783, 2001 WL 1616207 (La. Ct. App. 2001).

Opinion

804 So.2d 783 (2001)

Susan Gail HESTER
v.
William Ewing HESTER, III.

No. 2001-CA-0380.

Court of Appeal of Louisiana, Fourth Circuit.

December 12, 2001.

*785 Robert C. Lowe, Ellen Widen Kessler, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA, Counsel for Plaintiff/Appellee.

Bennett Wolff, Wolff & Wolff, Metairie, LA, Counsel for Defendant/Appellant.

Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MIRIAM G. WALTZER, and Judge DENNIS R. BAGNERIS, Sr.

BYRNES, Chief Judge.

Appellant, William Ewing Hester, III, appeals a judgment of August 30, 2000, denying his Amended Rule to Revoke or Terminate Alimony, his Rules to Reduce Support for Amanda Hester, and his Amended Rule to Reduce Child Support: condemning him to reimburse the appellee, Susan Gail Hester for tuition and related expenses of their son, William E. Hester, IV, in the amount of $21,912.00 in connection with his attendance at Christ School in 1998-1999; condemning him to pay 88% of all tuition and activity fees and other payments made by Susan Gail Hester for the 1999-2000 school year to St. Martin's Episcopal School for their son, William E. Hester, IV; and further condemning him to pay $1,000.00 in attorney's fees and $2,000.00[1] in sanctions related to his notice of deposition of Amanda Hester and in connection with Mrs. Hester's Motion to Quash and for Protective Order and his Opposition thereto.

Rather than rehash once again the tortured route this much litigated case has traveled through this Circuit, for the sake of brevity we refer the reader to the most relevant of the prior published decisions[2], all bearing the same title as the instant appeal: 93-1665 (La.App. 4 Cir. 9/15/94), 643 So.2d 216, writ granted, judgment of Court of Appeal reducing alimony reversed, judgment of trial court reinstated 94-2575 (La.12/19/94), 647 So.2d 1095, and writ denied 94-2549 (La.12/19/94), 648 So.2d 404; 95-1806 (La.App.1/13/96), 666 So.2d 737; 96-0189 (La.App. 4 Cir. 9/11/96), 680 So.2d 1232, writ denied 96-2452 (12/6/96), 684 So.2d 933 and 96-2468 (La.12/6/96), 684 So.2d 934; 97-1250 (La. *786 App. 4 Cir. 9/3/97), 699 So.2d 1099, writ denied 97-2746 (La.1/30/98), 709 So.2d 705; 97-2009 (La.App. 4 Cir.6/3/98), 715 So.2d 43, writ den. 98-1797 (La.9/18/98), 724 So.2d 759; 98-0854 (La.App. 4 Cir. 5/13/98), 715 So.2d 40, writ den. 98-1561 (La.9/18/98), 724 So.2d 764; 98-2220 (La. App. 4 Cir. 1/19/00), 752 So.2d 269, writ den. XXXX-XXXX (La.5/5/00), 756 So.2d 314.

There are two overarching conclusions to be gleaned from a study of the above line of prior reported decisions in this matter: (1) All of the Hester children have had special learning and/or behavioral problems that have placed an exceptional burden on Mrs. Hester, but which Mr. Hester has refused to share physically and emotionally and has shared financially only by virtue of court order; (2) Mr. Hester, an attorney, has waged a ceaseless legal war of attrition on his former spouse; and (3) the one time early on (before Mr. Hester's tactics became obvious) when this Court went along in part with one of Mr. Hester's rules to reduce the alimony awarded by the trial court, this Court was reversed by the Supreme Court. 93-1665 (La.App. 4 Cir. 9/15/94), 643 So.2d 216, writ granted, judgment of Court of Appeal reducing alimony reversed, judgment of trial court reinstated 94-2575 (La.12/19/94), 647 So.2d 1095, and writ denied 94-2549 (La.12/19/94), 648 So.2d 404.

Among Mr. Hester's arguments to this Court, two are paramount: (1) That Mrs. Hester has failed to show that she is in necessitous circumstances; and (2) that this Court's reference in a previous decision in this matter, 98-2220 (La.App. 4 Cir. 1/19/00), 752 So.2d 269, writ den. XXXX-XXXX (La.5/5/00), 756 So.2d 314, to a "substantial change in circumstances" standard for modifying a previous alimony award was in error.

In the context of the history of this case, these issues are intertwined. As to whether Mrs. Hester is in necessitous circumstances or in such circumstances as to entitle her to alimony regardless of the label applied to those circumstances, it is significant that the one time that this Court attempted to reverse the judgment of the trial court (and then only in part), concerning the award of alimony to Mrs. Hester, as we noted above, we were reversed by the Supreme Court in a decision that reinstated the award of the trial court. 93-1665 (La.App. 4 Cir. 9/15/94), 643 So.2d 216, writ granted, judgment of Court of Appeal reducing alimony reversed, judgment of trial court reinstated 94-2575 (La.12/19/94), 647 So.2d 1095, and writ denied 94-2549 (La.12/19/94), 648 So.2d 404. Therefore, we may safely proceed from the premise that the trial court, this Court and the Supreme Court have all been made very well aware of Mrs. Hester's circumstances. It is, therefore incumbent upon Mr. Hester to demonstrate to this Court that there has been a change of circumstance of such a nature as to warrant this Court overturning the carefully reasoned decision of the trial court which is the subject of this particular appeal.

Mrs. Hester cites Hammack v. Hammack, 99-2809 (La.App. 1 Cir. 12/22/00), 778 So.2d 70, writ denied XXXX-XXXX (La.5/25/01), 793 So.2d 166, in support of her contention that the law no longer requires her to prove that she is in "necessitous circumstances":

The term "necessitous circumstances" is a carry-over from cases which applied article 112 A(1) of the Louisiana Civil Code prior to the Spousal Support Act of 1997. That Article previously read, in pertinent part, as follows:
When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic *787 alimony which shall not exceed one-third of his or her income. [Emphasis original.]
The courts recognized the requirement under the old law to prove both freedom from fault and necessitous circumstances.
* * * *
Based on the prior statutory provisions, permanent alimony was awarded to a former spouse in need, and it is limited to an amount sufficient for the former spouse's maintenance. Since the claimant spouse had the burden of proving insufficient means of support, the next inquiry after the fault issue was whether the spouse claiming support has proved insufficient means for support. However, under present law, the claimant spouse has only to prove freedom from fault in order to qualify for periodic spousal support. The requirement that the claimant spouse also prove that she has not sufficient means for support is no longer included in the statutory basis for limiting support. Hence, the statutory basis for limiting support to a spouse in necessitous circumstances no longer exists.
What then is the court required to consider, under the present law, once it has determined that the claimant spouse is free from fault? The answer is in the present language of Civil Code Articles 111 and 112. Civil Code Article 111 indicates that the court may award support "based on the needs of that party and the ability of the other party to pay, in accordance with the following Articles."

Hammack, p. 5-6, 778 So.2d at 73-74.

However, as the law of this case, as established in a long line of final decisions, has previously determined that Mrs.

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804 So. 2d 783, 2001 WL 1616207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hester-v-hester-lactapp-2001.