CORRECTED COPY
JACK H. SHANNON * NO. 2024-CA-0140
VERSUS * COURT OF APPEAL JULIA WESTRICH SHANNON * FOURTH CIRCUIT * STATE OF LOUISIANA *******
CONSOLIDATED WITH: CONSOLIDATED WITH:
JACK H. SHANNON NO. 2024-CA-0219
VERSUS
JULIA WESTRICH SHANNON
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-13100, DIVISION “H” Honorable Jane E. Booth, Judge Pro Tempore ****** Judge Paula A. Brown ****** (Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge Karen K. Herman)
Mitchell J. Hoffman HOFFMAN NGUYEN & KUEHL 643 Magazine Street, Suite 401 New Orleans, LA 70130
Elizabeth K. Fox Fox Law Firm, LLC 23422 Cypress Cove Springfield, LA 70462
COUNSEL FOR PLAINTIFF/APPELLEE CORRECTED COPY
Christy M. Howley M. Elizabeth Bowman Jordan T. Giles BOWMAN & HOWLEY 629 Lafayette Street Gretna, LA 70053
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED OCTOBER 25, 2024 PAB SCJ KKH
This appeal involves termination of spousal support. Appellant, Julia
Westrich Shannon (“Ms. Shannon”), seeks to appeal the district court’s March 31,
2023 judgment, which denied Ms. Shannon’s peremptory exceptions, terminated
spousal support between the parties, and ordered Ms. Shannon to reimburse
Appellee, Jack Shannon (“Mr. Shannon”), for spousal support payments
retroactive to the date of judicial demand. For the reasons that follow, we affirm
the district court’s judgment.
FACTS AND PROCEDURAL HISTORY
On September 10, 1993, Ms. Shannon and Mr. Shannon married in Denver,
Colorado. On December 9, 2005, Mr. Shannon filed for divorce,1 which was
subsequently granted on September 8, 2006. The parties executed two consent
1 Mr. Shannon sought a divorce pursuant to La. C.C. art. 102, which provides:
Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.
The motion shall be a rule to show cause filed after all such delays have elapsed.
1 judgments on February 11, 2013—one regarding partition of community property
and one regarding spousal support. The Consent Judgment Regarding Spousal
Support (the “consent judgment”) provided the following pertinent provisions:
IT IS ORDERED, ADJUDGED AND DECREED that, thereafter, beginning March 1, 2013, Jack Shannon will pay rehabilitative spousal support in the amount of $4,400 per month to Julia Westrich Shannon for a period of ten (10) years, ending on February 28, 2023.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Jack Shannon will pay $5,400 in rehabilitative spousal support to Julia Westrich Shannon beginning March 1, 2023 until she reaches the age of 80 years old on August 28, 2034.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above-mentioned support payments are not subject to increase, decrease or termination for any reason whatsoever, other than the death of Jack Shannon or Julia Westrich Shannon, or as set out below.
* * *
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the above-mentioned spousal support and other payments shall not terminate upon the occurrence of Julia Westrich Shannon co- habiting with another man or her remarriage. These payments are only subject to termination upon the death of either party, or if Julia Westrich Shannon should inherit, be gifted, or in any other manner receive a sum of money equal to or in excess of $1,000,000 from any third party other than Jack Shannon within a two year period.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that other than the rehabilitative spousal support payments set out above, there will be no further support obligation owed to Julia Westrich Shannon by Jack Shannon.
Over seven years later, on July 17, 2020, Mr. Shannon filed a motion to
modify and/or terminate spousal support (“original motion to modify”) based on an
allegation of a material change in his circumstances since rendition of the consent
judgment. Specifically, Mr. Shannon alleged that he had been diagnosed with
Parkinson’s disease, which both increased his medical and household expenses and
2 forced him to retire. Additionally, Mr. Shannon alleged that Ms. Shannon had
commenced living with another man in the manner of married persons and was
benefitting financially from that relationship. In response, on September 4, 2020,
Ms. Shannon filed peremptory exceptions of no cause of action and res judicata,
which were both later denied on October 7, 2020. On December 3, 2020, Ms.
Shannon filed a motion for summary judgment, which was met with Mr.
Shannon’s cross motion for summary judgment twenty days later. The motion for
summary judgment and cross motion for summary judgment came for hearing on
April 28, 2021. Following, the district court issued a judgment on June 8, 2021,
granting Ms. Shannon’s motion and declaring the consent judgment to be valid and
enforceable according to its terms, with the clarification that “the provision of the
[c]onsent [j]udgment relating to the receipt by Ms. Shannon of [$1,000,000.00]
over a period of two years was not addressed by the Court.”
On January 12, 2022, Mr. Shannon filed an amended motion to modify
and/or terminate spousal support (“second motion to modify”),2 wherein he alleged
that “spousal support should be terminated retroactive to a date in 2013, which
ha[d] yet to be determined because [Ms. Shannon] received in excess of
[$1,000,000.00] from any third party within a two year period.” Additionally, Mr.
Shannon averred that Ms. Shannon had “intentionally withheld, failed to reveal, or
failed to disclose” the material facts related to her alleged receipt of these sums of
2 Although Mr. Shannon styled his motion as an “amended” motion to modify, the original
motion to modify had been resolved via the granting of Ms. Shannon’s motion for summary judgment. The original motion to modify sought modification based on the default rule found in the La. C.C. art. 114—a material change in circumstances. However, by granting Ms. Shannon’s motion—which specifically prayed for the dismissal of Mr. Shannon’s motion to modify—and finding that the consent judgment’s terms governed, the district court effectively resolved all issues raised in the original motion to modify. As such, we will refer to Mr. Shannon’s amended motion to modify as his second motion to modify.
3 money.3 One day later, Mr. Shannon filed a motion to suspend spousal support
with incorporated memorandum, wherein he alleged that Ms. Shannon had
received over $1,000,000.00 in satisfaction of the consent judgment condition as
follows: “on April 25, 2013, [Ms. Shannon] received $1,650,000.00. Also in 2013,
she received $350,000.00, and on November 25, 2014, [Ms. Shannon] received an
inheritance of $212,183.57 along with other amounts.” Through discovery, it was
learned that the $1,650,000.00 was transferred to Mr. Shannon from an individual
named Chad Emmett (“Mr. Emmett”).4
Mr. Shannon’s second motion to modify came for hearing over three non-
consecutive days—June 2, 2022, October 25, 2022, and November 29, 2022. After
the close of the first day to testimony, on June 2, 2022 at 3:20 p.m., Ms. Shannon
filed six peremptory exceptions: two for prescription, three for no cause of action
and/or no right of action, and one for res judicata.5 In response to these exceptions,
Mr. Shannon filed an opposition on October 17, 2022, wherein he alleged that the
exceptions were untimely. On the second day of trial, the district court noted that
it would delay ruling on Ms. Shannon’s exceptions until the hearing on Mr.
Shannon’s second motion to modify was completed. After the conclusion of the
hearing and oral argument on November 29, 2022, the district court took the matter
under advisement. On December 5, 2022, the parties entered into a joint motion for
judgment on the pleadings, memoranda, and evidence adduced at trial related to
the six exceptions filed by Ms. Shannon on June 6, 2022. The district court
3 We note, at this point, that the allegations as to the sources of money were very broad and
attributed to inheritance and gifts received. 4 Ms. Shannon and Mr. Emmett have cohabited together since 2006.
5 See more detailed discussion, infra.
4 rendered its ruling and reasons for judgment in writing on March 31, 2023,
dismissing all of Ms. Shannon’s peremptory exceptions as untimely and granting
Mr. Shannon’s request to terminate spousal support with such termination
retroactive to January 12, 2022—the date of judicial demand—with Ms. Shannon
owing $20,296.80 in reimbursement. This appeal followed.
Mr. Shannon responded with an answer, seeking a retroactive termination
date of April 25, 2013, and reimbursement in the amount of $511,323.00.
STANDARD OF REVIEW
“When reviewing questions of fact as determined by the factfinder, be it a
jury or a judge, appellate courts utilize the manifest error or clearly wrong standard
of review.” Veazey v. Johnson, 21-0639, p. 8 (La. App. 4 Cir. 2/15/23), 358 So.3d
186, 191 (quoting Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La. App. 4
Cir. 4/10/13), 116 So.3d 720, 723). Additionally, “[t]he manifest error standard of
review also applies to mixed questions of law and fact.” Id. (citing Davis v. Nola
Home Constr., L.L.C., 16-1274, p. 6 (La. App. 4 Cir. 6/14/17), 222 So.3d 822,
840). When an appellate court reviews questions of law, the de novo standard of
review applies. Id. (citing Bradix v. Advance Stores Co., Inc., 17-0166, p. 3 (La.
App. 4 Cir. 8/16/17), 226 So.3d 523, 527). Further, “[i]n the interpretation of
contracts, the trial court’s interpretation of the contract is a finding of fact subject
to the manifest error rule.” French Quarter Realty v. Gambel, 05-0933, p. 3 (La.
App. 4 Cir. 12/28/05), 921 So.2d 1025, 1027-28 (quoting Genghis Kahn, Inc. v.
Formosa Hotel, Inc., 03-1218, p. 4 (La. App. 4 Cir. 6/2/04), 876 So.2d 923, 925).
DISCUSSION
Ms. Shannon essentially raises three assignments of error: (1) the district
erred in summarily dismissing Ms. Shannon’s peremptory exceptions; (2) the
5 district court erred in finding that the $1,650,000.00 payment to Ms. Shannon was
a transfer from a third party that satisfied the termination clause in the consent
judgment; and (3) the district court erred in terminating spousal support without
first making a finding as to the current necessitous circumstances of Ms. Shannon.
In addition, and as a preemptive strike, Ms. Shannon contends that the district
court did not err in terminating spousal support to the date of judicial demand. We
will address each of these errors in turn.
Exceptions
Ms. Shannon filed six peremptory exceptions6 to Mr. Shannon’s second
motion to modify. First, Ms. Shannon argued that Mr. Shannon’s claim for
termination of spousal support was subject to res judicata7 due to her successful
motion for summary judgment. Second, Ms. Shannon contended that Mr. Shannon
6 Louisiana Code of Civil Procedure Article 927 provides:
A. The objections that may be raised through the peremptory exception include but are not limited to the following: (1) Prescription. (2) Peremption. (3) Res judicata. (4) Nonjoinder of a party under Articles 641 and 642. (5) No cause of action. (6) No right of action, or no interest in the plaintiff to institute the suit. (7) Discharge in bankruptcy. (8) The court’s lack of jurisdiction over the subject matter of the action. 7 Louisiana Revised Statutes 13:4231, entitled “Res judicata,” provides:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent: (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action. (3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
6 did not state a cause of action for fraud or misrepresentation because Mr. Shannon
voluntarily signed the consent judgment.8 Third, Ms. Shannon, relying on La.
C.C.P. art. 2004, urged that even if there was a viable claim for fraud, that claim
had prescribed as claims for fraud or ill practices must be brought within one year
of discovery.9 Fourth, Ms. Shannon argued that, in accordance with La. C.C.P. art.
1151, by failing to obtain leave of court or consent of Ms. Shannon prior to filing
the second motion to modify, Mr. Shannon’s motion should be dismissed for no
right of action and/or no cause of action.10 Fifth, Ms. Shannon asserted that Mr.
Shannon failed to state a cause of action entitling him to relief sought because he
sought retroactivity to a date prior to judicial demand in contravention to La. R.S.
9:321.11 Sixth, and lastly, Ms. Shannon argued that pursuant to La. C.C. art. 3490,
Mr. Shannon’s request for relief seeking reimbursement prescribed.12 After
8 Louisiana Code of Civil Procedure Article 856 provides, in pertinent part, that “[i]n pleading
fraud . . . the circumstances constituting fraud . . . shall be alleged with particularity.” 9 Louisiana Code of Civil Procedure Article 2004 provides in pertinent part:
(A) A final judgment obtained by fraud or ill practices may be annulled. (B) An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. 10 Louisiana Code of Civil Procedure Article 1151 provides:
A plaintiff may amend his petition without leave of court at any time before the answer thereto is served. He may be ordered to amend his petition under Articles 932 through 934. A defendant may amend his answer once without leave of court at any time within ten days after it has been served. Otherwise, the petition and answer may be amended only by leave of court or by written consent of the adverse party. 11 Louisiana Revised Statutes 9:321 provides in pertinent part:
C. Except for good cause shown, a judgment modifying or revoking a final spousal support judgment shall be retroactive to the date of judicial demand. 12 Louisiana Civil Code Article 3490 provides:
One who has possessed a movable as owner, in good faith, under an act sufficient to transfer ownership, and without interruption for three years, acquires ownership by prescription.
7 considering Ms. Shannon’s exceptions on the pleadings, the district court
dismissed the exceptions as untimely. On appeal, Ms. Shannon contends that the
district court erred in summarily dismissing her exceptions because, pursuant to
La. C.C.P. art. 928, peremptory exceptions can be brought at any stage of the trial
proceeding.
In opposition, Mr. Shannon argues that his second motion to modify is a
summary proceeding governed by La. C.C.P. art. 2592. As such, the applicable
article for the time delay in which to file exceptions in a summary proceeding is
La. C.C.P. art. 2593, which mandates that the exceptions be filed before the trial
begins. Mr. Shannon posits that, because the contradictory hearing on his second
motion to modify began at 9:30 a.m. on June 2, 2022, Ms. Shannon was untimely
in filing her exceptions at 3:20 p.m.—more than five hours after the trial
commenced. We agree.
Louisiana Code of Civil Procedure Article 2592 provides, in part, that
“[s]ummary proceedings may be used for trial or disposition” of matters involving:
(8) The original granting of, subsequent change in, or termination of custody, visitation, and support for a child; support for a spouse; injunctive relief; support between ascendants and descendants; use and occupancy of the family home or use of community movables or immovables; or use of personal property.
The succeeding article explains that “[e]xceptions to a contradictory motion, rule
to show cause, opposition, or petition in a summary proceeding shall be filed prior
to the time assigned for, and shall be disposed of at, the trial.” La. C.C.P. art.
2593. In contrast, La. C.C.P. art. 928 states, in pertinent part, that “[t]he
peremptory exception may be pleaded at any stage of the proceeding in the trial
prior to a submission of the case for a decision . . . .” We note that “[a]s a general
rule of statutory construction, a specific statute controls over a broader, more
8 general statute.” Treas v. Koerner, 20-0050, p. 8 (La. App. 4 Cir. 7/15/20), 364
So.3d 285, 290 (quoting Channelside Serv., LLC v. Chrysochoos Group, Inc., 15-
0064, p. 17 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 761). Thus, “where two
statutes deal with the same subject matter, in the event of a conflict, the specific
statute prevails over the statute more general in nature.” Id. (citing Channelside,
15-0064, pp. 17-18, 194 So.3d at 761).
In Gilkes v. Bower, the underlying action was a request for a preliminary
injunction, which is a summary proceeding as defined by La. C.C.P. art. 2592(8).
99-0574, p. 1 (La. App. 4 Cir. 4/1/99), 734 So.2d 98, 99. On the morning of the
hearing for the injunction, the defendant filed a peremptory exception of lack of
subject matter jurisdiction and a declinatory exception of lack of personal
jurisdiction. In those exceptions, the defendant requested that the district court
delay the hearing on the preliminary injunction in order to first rule on the
exceptions. However, the district court refused and proceeded with the preliminary
injunction hearing. After the district court granted the preliminary injunction, the
defendant appealed the matter, specifically seeking review of the failure to hear his
exceptions. On appeal, while the time of the hearing is not explicitly provided, this
Court noted that defendant’s exceptions were filed “at 9:37 a.m. on 22 January
1999, minutes before the hearing on the preliminary injunction began.” Id. at p. 4,
734 So.2d at 101. Thus, because “he filed these pleadings before the time of the
scheduled trial […] the [district] court should have considered them on the trial on
the preliminary injunction.” Id. at p. 5, 734 So.2d at 101 (citing Sizeler v. Sizeler,
375 So.2d at 123-24 (La. App. 4 Cir. 1979)).
In Sizeler, the underlying action centered on alimony payments between
husband and wife, which is a summary proceeding as defined by La. C.C.P. art.
9 2592(8). 375 So.2d 122, 123 (La. App. 4 Cir. 1979). On the day of the hearing, the
husband filed an exception to the wife’s use of summary proceedings in the matter.
The hearing was set to begin at 10:00 a.m., and the husband filed his exception at
11:20 a.m. However, the hearing did not begin as scheduled, and did not actually
commence until an undisclosed time in the afternoon after the exception had been
filed. Nonetheless, the district court denied the exception as untimely based on the
original starting time for the hearing. On appeal, this Court disagreed with the
district court and explained:
The obvious reasoning behind the adoption of [La. C.C.P. art.] 2593 is to afford an opportunity for the court to consider, in limine, the question of whether or not the matter before the court can properly be heard in a summary proceeding. Because an exception filed prior to the commencement of the actual hearing (as distinguished from the time the matter is set or scheduled for hearing) affords the in limine opportunity to the trial judge, we conclude that the exception filed in this case was timely.
Id. at 123-24.
In the case sub judice, the underlying issue in the second motion to modify is
spousal support, making this motion triable by summary proceeding in accordance
with La. C.C.P. art. 2592(8). Ms. Shannon’s exceptions were filed in response to
this motion. Because La. C.C.P. arts. 2592 and 2593 are more specific than the
general rules provided under La. C.C.P. art. 928, we find that the timing
requirements in the more specific articles prevail. Thus—in keeping with La.
C.C.P. art. 2593—in order for the exceptions to be timely, they needed to be filed
before 9:30 a.m. on June 2, 2022, the time and date of which the hearing on Mr.
Shannon’s second motion to modify commenced. As Ms. Shannon did not file
until 3:20 p.m. later that day, the exceptions were untimely. This assignment of
error is not persuasive.
10 Termination of Spousal Support
This assignment of error centers on whether or not the $1,650,000.00
transferred from Mr. Emmett to Ms. Shannon satisfied a condition in the consent
judgment, such that Mr. Shannon’s obligation of spousal support terminated. Three
witnesses testified at the hearing: Ms. Shannon; Mr. Emmett; and Jeffrey Meyers
(“Mr. Meyers”), an expert in financial forensics, forensic accounting, and a
Certified Fraud Examiner. The relevant testimony centered on the sale of an
immovable property in Wainscott, New York (the “Wainscott property”). The
Wainscott property was owned by Mr. Emmett, but he and Ms. Shannon alleged
that she had purchased a one-half interest in 2011, such that the subsequent sale of
the property in 2013 resulted in her receiving a return on her investment in the
amount of $1,650,000.00. Mr. Shannon argued that Ms. Shannon’s receipt of the
$1,650,000.00 was nothing more than a gift exchanged between Mr. Emmett and
Ms. Shannon, such that it violated the terms of the consent judgment, thus
terminating his spousal support obligation. A more detailed account of each
witness’s testimony follows.
Ms. Shannon
Ms. Shannon was the first witness called to testify at the hearing. She
relayed that since at least 2005, Mr. Shannon had paid her between $4,000.00 and
$5,000.00 per month for spousal support. Ms. Shannon then testified to having
received several different sums of money from different sources. In 2013, she
signed a promissory note and mortgage in favor of a “Marie Miggy Monroe” for
$350,000.00. Mr. Emmett then paid this $350,000.00 back to Ms. Monroe in full
later in 2013. Ms. Shannon acknowledged that she received $10,688.00 in 2014 as
an advance on inheritance from her mother and an additional $212,183.57 from her
11 mother’s succession later that same year. Ms. Shannon further acknowledged that
on April 25, 2013, the sum of $1,650,000.00 had been transferred into one of her
accounts.13 When asked if the funds came from Mr. Emmett, Ms. Shannon
responded that “[t]his money came from the sale of a property in Wainscott, New
York.” According to Ms. Shannon, in 2011, she transferred $1,000,000.00 to Mr.
Emmett in exchange for a one-half interest in the Wainscott property, where she
and Mr. Emmett resided. After being shown a copy of her Fidelity statement
evidencing the $1,650,000.00 transfer, Ms. Shannon insisted that her own
handwriting appeared on the document, which read “[p]urchase of one half interest
in 128 [sic] Sayres Path Wainscott, New York.” However, she admitted that her
name was not on the title of this property, nor did she pay property taxes on this
property. When probed whether there was any type of agreement between Ms.
Shannon and Mr. Emmett memorializing the alleged sale, the following exchange
occurred:
A. We had a verbal agreement. Q. Okay. Describe the verbal agreement that you and Mr. Emmett had in 2011 for the Court please. A. It was really simple. We were, originally I was going to own the whole house. I thought that was a little bit much, but I was advised that I would own half of an interest in the Wainscott property. Q. Okay. And you ended up with half interest? A. Yes. Q. Was any agreement reached with respect to what would happen if the property were sold? A. The way we’d split the proceeds of the sale 50/50. Q. You would split proceeds of the sale 50/50? A. Yes.
13 Although several different amounts of money were discussed at the hearing, Ms. Shannon’s
assignment of errors in the instant appeal only calls into question the $1,650,000.00. As such, we pretermit discussion of any other amounts.
12 Ms. Shannon’s counsel then introduced an unsigned written residential contract of
sale. The contract was drafted to reflect the sale of the entire Wainscott property,
and while not executed by Ms. Shannon and Mr. Emmett, Ms. Shannon said that
she and Mr. Emmett had discussed the contract with an attorney prior to agreeing
for Ms. Shannon to purchase only a one-half interest in the property. Ms. Shannon
testified that the Wainscott property was sold in 2013 for $3,475,000.00 and, after
closing costs, she received one-half of the sales price in the amount of
$1,650,000.00—which she later admitted that she did not report as a gain on her
2013 taxes.
Mr. Emmett
When the hearing resumed on October 25, 2022, Mr. Emmett was called to
the stand. With regard to the Wainscott property, Mr. Emmett testified the
following:
Q. Okay. Now, it’s been alleged that in 2011 Julie purchased a one-half interest in the Wainscott home from you. You’re familiar with that allegation? A. I am. Q. But she didn’t do that, did she? A. Could you repeat the question? Q. She didn’t purchase a one-half interest from you in the Wainscott property in 2011, did she? A. Of course she did.
According to Mr. Emmett, it was his intention for Ms. Shannon have a one-half
interest in Wainscott to either keep or sell. Once the property sold, he and Ms.
Shannon each received $1,650,000.00. However, Mr. Emmett admitted that he did
not possess any documents confirming that Ms. Shannon had purchased the
property. Further, when looking at Mr. Emmett’s 2011 tax return, there was no
reference to the sale of the one-half interest to Ms. Shannon, and his 2013 tax
return reported one hundred percent of the sale of the Wainscott property.
13 Additionally, Mr. Emmett testified that he transferred one hundred percent of the
ownership to the buyer as the house was in his name alone, and he did not recall if
a conversation about Ms. Shannon owning a one-half interest in the property ever
arose between him and the buyer.
Mr. Meyers
Mr. Meyers, a Certified Fraud Examiner, was called to give expert testimony
regarding the sale of the Wainscott property. Mr. Meyers disputed Mr. Emmett’s
testimony that Ms. Shannon paid him in exchange for a one-half interest in the
Wainscott property. To form his opinion, Mr. Meyers reviewed pages of
documents, including the individual tax returns and bank statements from Ms.
Shannon and Mr. Emmett. According to Mr. Meyers, based on the information
presented to him for review and the lack of any transactional documents
identifying Ms. Shannon as an owner of the Wainscott property, there was nothing
to suggest that the $1,650,000.00 was Ms. Shannon’s share of proceeds from the
sale of the Wainscott property. Instead, he concluded that the evidence presented
contradicted that suggestion. Mr. Meyers opined that the simplest explanation was
that “the transfer of the [$1,650,000.00] from Mr. Emmett to [Ms. Shannon] would
have been a payment from a third point. It would have been a gift.” Mr. Meyers
further opined that the evidence suggested that there were misrepresentations made
by Ms. Shannon with regard to the $1,650,000.00 transfer.
After taking the matter under advisement, the district court, relying on the
testimony of the witnesses, bank statements, tax returns, and an unexecuted written
residential contract of sale, found that the monies received by Ms. Shannon
triggered the termination clause in the consent judgment. Specifically, the district
court determined that:
14 The Court is not persuaded and the evidence does not support her assertion that the monies received from Mr. Emmett upon the sale of the Wainscot[t] property was a return of funds she invested in the property along with the realization of a gain on that investment. Collateral documents related to the ownership of the property belie her assertions as to her interest in the property.
Going even further, the district court reasoned that even in considering the
contradicting testimony and introduced exhibits, because the consent judgment
bound Mr. Shannon and Ms. Shannon, the district court was not required “to
inquire into the reason or intention behind the transfer of the funds.”14 Because
Ms. Shannon received monies in excess of $1,000,000.00 within a two-year period,
which the district court concluded she did, the spousal support obligations created
by the consent judgment terminated.
It is well-settled law that “[w]hen findings are based on determinations
regarding the credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the factfinder can
be aware of the variations in demeanor and tone of voice that bear so heavily on
the listener’s understanding and belief in what is said.” Braud v. Bernstein, 23-
0332, p. 4 (La. App. 4 Cir. 12/20/23), 381 So.3d 58, 62 (quoting Rosell v. ESCO,
549 So.2d 840, 844 (La. 1989)). It is equally well-settled law that when applying
the manifest error standard of review to the trial court’s interpretation of the
contract, an appellate court “may not simply substitute its own view of the
evidence for the trial court’s view, nor may it disturb the trial court’s finding of
fact so long as it is reasonable.” Bartlett Constr. Co., Inc. v. St. Bernard Parish
14 We note that “a trial court’s reasons for judgment are not part of the judgment and that
appellate courts review judgments, not reasons for judgment. But, appellate courts may consider a trial court’s reasons for judgment to obtain insight into the trial court's judgment.” Heard, McElroy & Vestal, L.L.C. v. Schmidt, 22-0221, p. 16 (La. App. 4 Cir. 9/21/22), 349 So.3d 663, 673 (citing Bruno v. CDC Auto Transp., Inc., 2019-1065, p. 9 (La. App. 4 Cir. 6/3/20), 302 So.3d 8, n. 11) (internal citations omitted).
15 Council, 99-1186, pp. 4-5 (La. App. 4 Cir. 5/31/00), 763 So.2d 94, 97 (citing Syrie
v. Schilhab, 96–1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176).
Upon review of the record, we do not find that the district court erred in
finding that the testimony of Mr. Meyers, along with any exhibits relied upon, to
be more credible and persuasive than that of Ms. Shannon and Mr. Emmett. Ms.
Shannon and Mr. Emmett testified that they had participated in a sale in 2011,
whereby Ms. Shannon purchased a one-half interest in the Wainscott property for
$1,000,000.00 from Mr. Emmett. After the Wainscott property sold in 2013, they
each testified, the $1,650,000.00 transferred to Ms. Shannon was merely a return
on her 2011 investment. On the other hand, Mr. Meyers testified that based on the
financial documents he had reviewed and the lack of any transactional documents
identifying Ms. Shannon as an owner of the Wainscott property, the $1,650,000.00
was nothing more than a gift. In hearing the above evidence, and in considering
the language of the consent judgment itself, we find that the district court
reasonably interpreted the consent judgment such that the $1,650,000.00 payment
constituted monies received by Ms. Shannon, which acted to render Mr. Shannon’s
obligation to pay spousal support subject to termination.
This assignment of error is unpersuasive.
Hearing on Necessitous Circumstances
This assignment of error focuses on another crossroads between default
Civil Code articles and the presence of a consent judgment. Ms. Shannon asserts
that, based on the mandate of La. C.C.P. art. 112, she was entitled to a hearing with
evidence on her current necessitous circumstances prior to termination of spousal
16 support.15 Additionally, Ms. Shannon argues that, in order for Mr. Shannon to
prevail on termination of spousal support, he must prove that, under a totality of
the circumstances, Ms. Shannon is no longer in need. However, Ms. Shannon fails
to consider that the instant matter involves a consent judgment, which dictates the
terms of the agreement between the parties.
“A consent judgment is a bilateral contract which is voluntarily signed by
the parties and accepted by the court.” Gebhard v. Gebhard, 10-1412, p. 6 (La.
App. 4 Cir. 2/16/11), 60 So.3d 717, 721 (quoting Durfee v. Durfee, 44,281, p. 4
(La. App. 2 Cir. 5/13/09), 12 So.3d 984, 987-88). “It has binding force from the
voluntary acquiescence of the parties.” Id. (citing Durfee, 44,281, p. 4, 12 So.3d at
988). When parties enter into a consent judgment, the terms of the contract are
paramount such that “[t]he right to modify the amount of spousal support awarded
through a consent judgment depends upon the specific terms of the consent
judgment.” Williams v. Poore, 10-1087, p. 9 (La. App. 4 Cir. 1/12/11), 55 So.3d
953, 958 (citing Aufrichtig v. Aufrichtig, 34,909, p. 6 (La. App. 2 Cir. 8/22/01),
15 Louisiana Civil Code Article 112 provides, in pertinent part:
A. When a spouse has not been at fault prior to the filing of a petition for divorce and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article. B. The court shall consider all relevant factors in determining the amount and duration of final support, including: (1) The income and means of the parties, including the liquidity of such means. (2) The financial obligations of the parties, including any interim allowance or final child support obligation. (3) The earning capacity of the parties. (4) The effect of custody of children upon a party’s earning capacity. (5) The time necessary for the claimant to acquire appropriate education, training, or employment. (6) The health and age of the parties. (7) The duration of the marriage. (8) The tax consequences to either or both parties. (9) The existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of domestic violence.
17 796 So.2d 57, 62). “To bar modification of the duration and/or amount of spousal
support, the consent judgment must evidence the intent of the parties to do so.”
Gebhard, 10-1412, p. 6, 60 So.3d at 721 (citing Ray v. Ray, 05-0873, p. 5 (La.
App. 1 Cir. 3/23/07), 960 So.2d 174, 178). It is then incumbent upon the district
court to “interpret the disputed provision[s] of the contract according to its text
without reference to what might have been the result had the parties agreed to be
governed by the applicable code articles.” Romero v. Romero, 509 So.2d 681, 684
(La. App. 3 Cir. 1987).
Because this matter involves a consent judgment, the terms of the contract
prevail over the default rules provided by the Civil Code for termination of spousal
support. While we note that “the mere listing of events which will terminate
spousal support does not evidence a clear intent that that amount of spousal support
can never be changed,” that is not the case here. Williams, 10-1087, p. 9, 55 So.3d
at 958 (quoting Ray, 05-0873, p. 6, 960 So.2d at 178). The consent judgment in
this matter explicitly provides that the “support payments are not subject to
increase, decrease, or termination for any reason whatsoever, other than the death
of [Mr. Shannon] or [Ms. Shannon], or as set out below.” This term of the contract
not only describes situations that will terminate the payments, but it also clearly
states that there shall be no modifications such that no increases or decreases are
allowed. Because the terms of the consent judgment govern and the terms directly
address a potential modification, Ms. Shannon is not entitled to the hearing with
evidence as would occur under default procedures for termination of spousal
support found within the Civil Code.
Retroactivity/Mr. Shannon’s Answer to Appeal
18 The final issue on appeal focuses on the date of retroactivity for the
termination of spousal support. Ms. Shannon argues that the district court was
correct in finding that, pursuant to La. R.S. 9:321(C), the proper date for
retroactivity was the date of judicial demand, January 12, 2022. In response, Mr.
Shannon contends that, because a consent judgment is a contract, the general rules
governing contracts prevail over La. R.S. 9:321(C), cited by Ms. Shannon. Mr.
Shannon likewise raises the issue of retroactivity in his Answer. In essence, he
argues that: (1) the district erred court erred in applying La. R.S. 9:321(C) and
finding that the date of judicial demand was January 12, 2022, rather than February
11, 2013—the day of the $1,650,000.00 payment; and (2) in the alternative, if La.
R.S. 9:321(C) applies, the district court erred in finding the date of judicial demand
was January 12, 2022, rather than July 17, 2020.16 Because Ms. Shannon’s third
assignment of error and the errors raised by Mr. Shannon in his Answer are
intertwined, we will address them together.
The termination clause in the consent judgment provides:
These payments are only subject to termination upon the death of either party, or if Julia Westrich Shannon should inherit, be gifted, or in any other manner receive a sum of money equal to or in excess of $1,000,000 from any third party other than Jack Shannon within a two year period.
Relying on La. C.C. art. 1767, Mr. Shannon posits that based on the
language of the termination clause in the consent judgment, his obligation to pay
spousal support is dependent on the occurrence of an uncertain event. This clause,
he argues, operates as a resolutory condition that automatically terminated his
16 Mr. Shannon further requests that this Court find that he is entitled to reimbursement in the
amount of $511,323, not $20,296.80, because Ms. Shannon received spousal support payments that were not due to her from May 2013 to May 2022; and alternatively, that he is entitled to reimbursement in the amount of $102,872, not $20,296.80, for his payment of life insurance premiums, which terminated retroactive to the date of judicial demand, July 17, 2020.
19 obligation to pay spousal support when that uncertain event occurred. Thus, Mr.
Shannon contends, the date of retroactivity should be to the date of the occurrence
of the uncertain event, or, in this case, April 25, 2013, the date of the
$1,650,000.00 transfer. We find Mr. Shannon’s reliance on the general rules of
contract law to be misplaced.
La. C.C. art. 1767 provides that “[a] conditional obligation is one dependent
on an uncertain event” and if said “obligation may be immediately enforced but
will come to an end when the uncertain event occurs, the condition is resolutory.”
Further, La. C.C. art. 1776 provides that “[i]n a contract for continuous or periodic
performance, fulfillment of a resolutory condition does not affect the validity of
acts of performance rendered before fulfillment of the condition.” While we do
not dispute that a consent judgment is a contract, as discussed elsewhere in this
opinion, specific statutes control over more broad and general statutes. Treas, 20-
0050, p. 8, 364 So.3d at 290. Looking beyond the general rules on contracts, we
note that “[e]xcept for good cause shown, a judgment modifying or revoking a
final spousal support judgment shall be retroactive to the date of judicial demand.”
La. R.S. 9:321(C).
Although the facts of Pellerin v. Pellerin do not mirror the facts in the
present case, we find it to be instructive on the issue of whether the application of
La. R.S. 9:321(C) is applicable to consent judgments and judgments terminating
spousal support. 17-0946, (La. App. 4 Cir. 6/6/18), 249 So.3d 77. In Pellerin, the
parties separated in 2014 and, in April of 2015, Mr. Pellerin was ordered to pay
Mrs. Pellerin child support and interim spousal support. In October 2015, the
parties entered into a consent judgment, wherein Mr. Pellerin’s child support was
slightly reduced from the previous order of child support, and Mr. Pellerin agreed
20 to continue the spousal support payments in accordance with that previous order.
On April 15, 2016, Mrs. Pellerin filed a rule for final spousal support, and on April
20, 2016, the judgment of divorce was rendered. Mrs. Pellerin filed a joint motion
and order to continue the rule for final spousal support in October 2016, which
contained the following provision: “[T]he parties agree to contractual spousal
support on the same terms and conditions as the current interim spousal support
order, which will last up and until the issue of Final Periodic Spousal Support is
decided through trial or consent judgment.” Id. at p. 2, 249 So.3d at 79. On
December 15, 2016, the parties entered into a consent judgment, wherein Mr.
Pellerin would continue to pay Ms. Pellerin child support and contractual spousal
support in the same amount as the interim spousal support award. In January 2017,
Mr. Pellerin filed a motion to modify based on a change in material circumstances.
The matter came for hearing in May of the same year. The district court denied the
modification as to the child support, and further held that Mrs. Pellerin was entitled
to final spousal support payments retroactive to April 20, 2016, the date the
judgment of divorce was rendered. On appeal, this Court addressed the date of
retroactivity, laying out the law on consent judgments and La. R.S. 9:321. Under
the facts of Pellerin, this Court applied subsections (B)(1)-(2) of La. R.S. 9:321,
which provide:
B(1) A judgment that initially awards or denies final spousal support is effective as of the date of the judgment is rendered and terminates an interim spousal support allowance as of that date. (2) If an interim spousal support allowance award is not in effect on the date of the judgment awarding final spousal support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown.
In applying that law to the facts, this Court reversed the district court and found
that, because the parties entered into a consent for Mr. Pellerin to pay contractual
21 spousal support until the issue of final spousal support was determined, interim
spousal support continued to be in effect on the date the judgment for final spousal
support was rendered. Thus, this Court held that the date of retroactivity of “the
final spousal support award shall be the date upon which the trial court decided the
issue of final spousal support, and the interim spousal support allowance is
terminated as of that date.” Id. at p. 5, 249 So.3d at 81.
In the case sub judice, Mr. Shannon filed his second motion to modify on
January 12, 2022, seeking termination of spousal support based on the fulfillment
of the $1,000,000.00 gift condition. Because the judgment terminating spousal
support is in response to the second motion to modify and applying the mandates
of La. R.S. 9:321(C), we find that the district court did not err in determining that
the termination is retroactive to January 12, 2022, the date of judicial demand.
Having found that La. R.S. 9:321(C) is applicable to this case, we pretermit
discuss of the remaining assignment of errors raised by Mr. Shannon in his
Answer.
DECREE
For the aforementioned reasons, we affirm the district court’s March 31,
2023 judgment.
AFFIRMED