Kelly v. Kelly

775 So. 2d 1237, 2000 WL 1872042
CourtLouisiana Court of Appeal
DecidedDecember 22, 2000
Docket99 CA 2478
StatusPublished
Cited by7 cases

This text of 775 So. 2d 1237 (Kelly v. Kelly) 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
Kelly v. Kelly, 775 So. 2d 1237, 2000 WL 1872042 (La. Ct. App. 2000).

Opinion

775 So.2d 1237 (2000)

Bonnie Melancon KELLY
v.
John Anthony KELLY.

No. 99 CA 2478.

Court of Appeal of Louisiana, First Circuit.

December 22, 2000.

*1239 Harry P. Pastuszek, Jr., David S. Pittman, Mandeville, for Defendant-Appellant John Anthony Kelly.

Tony G. Sanders, Leigh Anne Wall, Covington, for Intervenor-Appellee State of Louisiana.

Bonnie Melancon Kelly, Mandeville, In Proper Person Plaintiff-Appellee.

Before: PARRO, GUIDRY, JJ., and SIMON,[1] Judge Pro Tem.

GUIDRY, J.

The father appeals the judgment of the trial court ordering him to pay $162.00 a month in child support for the care of his two minor children, in addition to sums received by the children from the Social Security Administration because of the father's disability, and ordering him to pay 31 percent of the children's private school tuition.

FACTS AND PROCEDURAL HISTORY

The parties to this action, John Anthony Kelly and Bonnie Melancon Kelly, were married on June 22, 1980, in Thibodaux, Louisiana. Of their marriage, two children were born, namely, Jenna Rene Kelly, born December 31, 1984, and Stephen John Kelly, born January 2, 1986.

On May 31, 1994, Ms. Kelly filed for divorce in the Seventeenth Judicial District Court in and for the Parish of Lafourche. Prior to the granting of the judgment of divorce, the parties entered into a consent judgment agreeing to share joint custody of the children with Ms. Kelly being designated as the custodial parent. Further, the parties agreed that Mr. Kelly would be obliged to pay $731.50 per month in child support and 55 percent of the registration and tuition expenses of the children to attend private school. A judgment giving effect to this agreement was signed by the trial court on September 12, 1994. A judgment of divorce was subsequently rendered on January 13, 1995, and that judgment incorporated by reference the September 12, 1994, child custody and support judgment.

Prior to and during the course of the divorce proceedings, Mr. Kelly resided in areas outside of the United States as a consequence of his employment. In January 1994, Mr. Kelly was injured while working in Nigeria. He was later transferred to Indonesia where he met his second wife, Lina, an Indonesian national whom he married in April of 1995 following his divorce. Because of the injuries suffered by Mr. Kelly, he stopped working in March of 1995, and began receiving disability benefits from his employer in the amount of $2,250.00 per month.

On December 13, 1995, Ms. Kelly filed an ex parte petition to make prior child custody and support judgments, rendered in Lafourche Parish on September 12, *1240 1994, and August 8, 1995,[2] executory in St. Tammany Parish. An order in conformity with the petition was rendered on December 19, 1995, making the judgments executory and subject to enforcement and modification in the Parish of St. Tammany. Subsequently, a judgment reducing Mr. Kelly's child support obligation was rendered on February 22, 1996, in Lafourche Parish. In that judgment, Mr. Kelly was ordered to pay the reduced sum of $460.00 a month, commencing December 11, 1995. He was also held responsible for 39 percent of all tuition expenses incurred for the private school education of the minor children.

In November of 1996, Mr. Kelly settled a personal injury suit he filed in connection with the injuries he had suffered in January 1994. As a result of the settlement, Mr. Kelly received $825,000.00 and his disability benefits were terminated. After the deduction of attorney's fees, medical costs and other expenses, Mr. Kelly was left with a net recovery of $445,527.43 from the proceeds of the settlement.

In May 1997, Ms. Kelly received a lump sum payment of $12,840 representing past due payments of Social Security benefits owed to the minor children retroactive October 1995. Thereafter, Ms. Kelly began receiving monthly Social Security payments in the amount of $658.00 per month for the two minor children.[3] Mr. Kelly also received a lump sum payment of $16,796.00 representing past due Social Security benefits owed to him. Thereafter, he began receiving monthly payments of $1,272.00, which were subsequently increased to $1,300.00 per month in January 1998.

On May 15, 1997, Ms. Kelly filed a rule to increase child support, for contempt, and for an income assignment order based on the alleged failure of Mr. Kelly to maintain dental insurance coverage for the minor children, for failure to pay his share of the children's private school tuition, and for being consistently late in making his child support payments. In response to the rule filed by Ms. Kelly, Mr. Kelly filed a motion to dismiss Ms. Kelly's rule alleging that her petition failed to conform with the formalities mandated under La. C.C.P. art. 891. Also, in that motion, Mr. Kelly requested the imposition of sanctions against Ms. Kelly for violation of La. C.C.P. art. 863, and further requested modification of the existing custody arrangements and reduction and/or abatement of his existing child support obligation.

Following a period of discovery and hearings on the reciprocal motions to compel discovery and for sanctions, a trial on this matter was held on September 16, 1998, in St. Tammany Parish. On November 6, 1998, a judgment was rendered reducing Mr. Kelly's child support payments to $162.00 per month and reducing his share of all tuition expenses to 31 percent. Mr. Kelly then filed a motion for new trial, for reargument only, which was granted by the trial court. By a judgment dated March 29, 1999, the trial court vacated the November 6, 1998 judgment and issued a new judgment in conformity with its oral reasons for judgment rendered in open court on September 16, 1998. The March 29, 1999 judgment amended the amount of arrearages Mr. Kelly was found to owe for past due child support and tuition payments. In respect to the amount of child support and percentage of tuition Mr. Kelly was ordered to pay, the judgment remained the same.

*1241 Mr. Kelly subsequently filed a motion to appeal the March 29, 1999, judgment and an order granting the appeal was signed on May 11, 1999.[4]

ASSIGNMENTS OF ERROR

Mr. Kelly alleges that the trial court erred in the following respects:

A. The trial court erred in failing to recognize John Kelly's disability and in increasing the amount of child support paid by him to Bonnie Kelly from $460.00 per month to $834.48 per month, deviating from the child support guidelines.
B. The trial court erred by not taking into account Social Security benefits paid to Bonnie each month on behalf of the minor children as a result of John Kelly's disability, when calculating the child support obligation of John Kelly, and in failing to offset John Kelly's obligation of support based upon the Social Security benefits received by Bonnie on behalf of the minor children as a result of John's disability.
C. The trial court erred in failing to properly allocate the monthly and lump sum Social Security benefits received by Bonnie Kelly on behalf of the minor children as a result of John Kelly's disability, resulting in a windfall to Bonnie Kelly of $12,800.00, and monthly child support in excess of $1,000.00 per month, in deviation from the child support guidelines at [La.] R.S. 9:315 et seq.
D.

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Cite This Page — Counsel Stack

Bluebook (online)
775 So. 2d 1237, 2000 WL 1872042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-kelly-lactapp-2000.