Key v. Willard

488 So. 2d 1147
CourtLouisiana Court of Appeal
DecidedMay 7, 1986
Docket17815-CA
StatusPublished
Cited by13 cases

This text of 488 So. 2d 1147 (Key v. Willard) 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
Key v. Willard, 488 So. 2d 1147 (La. Ct. App. 1986).

Opinion

488 So.2d 1147 (1986)

Dorothy W. KEY, Plaintiff-Appellee,
v.
Donald R. WILLARD, Defendant-Appellant.

No. 17815-CA.

Court of Appeal of Louisiana, Second Circuit.

May 7, 1986.
Rehearing Denied June 5, 1986.

*1148 Dimos, Brown, Erskine, Burkett & Smith by Donald R. Brown, Monroe, for defendant-appellant.

Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, Monroe, for plaintiff-appellee.

Before MARVIN, SEXTON and NORRIS, JJ.

MARVIN, Judge.

On May 28, 1985, this court increased by $85 per month the child support that had been awarded by the lower court but did not decree the date when the increased award was to be effective. Key v. Willard, unpublished opinion on rehearing, 471 So.2d 324 (La.App.2d Cir.1985).

As the sequel to that proceeding, in this appeal of a later judgment of the lower court, the father complains first that he should not have been cast for the $85 per month arrearage (totaling $1,105) for the 13 months from the mother's initial judicial demand to the date our 1985 opinion became final and definitive. CCP Art. 3943. See also LRS 9:310.[1]

The father secondly complains that the trial court should not have rejected his demands that the joint custody decree that had been in effect for three years (nine months to mother and three months to father) should be modified to achieve more equal custody, or six months to each parent. The son, whose custody and support have been at issue since 1981, is now 14 years old.

We affirm, with slight amendment to allow on the arrearage a credit stipulated in favor of the father but which was apparently overlooked by the trial court. CCP Art. 2164.

FREDERIC V. FREDERIC REVISITED

The mother's 1984 appeal of the judgment that denied her increased child support did not suspend the effect of the trial court's support judgment. CCP Art. 3943. Thus, the father's obligation, pending the appeal, was fixed solely by the trial court's judgment denying the mother a support increase until our 1985 judgment increasing the support became definitive. Frederic v. Frederic, 302 So.2d 903 (La.1974).

The courts of this state have struggled to reconcile the above rule with the general power of an appellate court to grant any relief that is just, legal and proper upon the record. CCP Art. 2164. The struggle arises when the "effectiveness" of the original judgment pending appeal is weighed against the power of the appellate court to *1149 order either payment or reimbursement of a different amount that may result from a modification of the trial court judgment by the court of appeal. See and compare Frederic, supra; Wasson v. Wasson, 439 So.2d 1208 (La.App. 1st Cir.1983), writ denied; Bruner v. Bruner, 373 So.2d 971 (La.App.2d Cir.1979); O'Brien v. O'Brien, 347 So.2d 1288 (La.App. 1st Cir.1977), and Oliver v. Oliver, 417 So.2d 1278 (La.App. 1st Cir.1982), writ denied.

Frederic held that the "effectiveness" of a judgment awarding alimony required the obligor spouse to continue paying the alimony during the interim between an appellate court judgment reversing the award of alimony and the affirming of the appellate judgment by the Louisiana Supreme Court. Under Frederic, the alimentary obligation did not terminate and the obligor spouse was not entitled to cease paying the alimony until the judgment of the appellate court reversing the award became definitive.

In Bruner, we affirmed the trial court's award of a permanent alimony arrearage where the obligor spouse had discontinued alimony payments during the period following our reversal of the award and final disposition of the obligee spouse's writ application by the supreme court. Citing CCP Art. 3943 and Frederic, Bruner also rejected the obligor spouse's contention that he was entitled to credit against permanent alimony arrearage for "overpayments" of alimony pendente lite he had made before this court's reduction of the trial court's alimony pendente lite award. We said that the amount of alimony pendente lite awarded below was "owed" until the appellate judgment reducing that alimony became final or definitive. We did not consider the effect of a modification either of pendente lite alimony against pendente alimony or of permanent alimony against permanent alimony.

Frederic was interpreted in a similar fashion in Oliver, supra, and Macip v. Wallace, 381 So.2d 869 (La.App.3d Cir.1980). In Oliver, the court denied the award of any arrearage to a claimant spouse who successfully reversed on appeal a trial court judgment that denied her alimony. Oliver reasoned that if Frederic allowed a successful claimant spouse to be paid pending the obligor spouse's appeal, then the successful obligor spouse was entitled not to pay pending the obligee spouse's appeal. Writs were denied, with comment from Justice Lemmon. See Oliver v. Oliver, 421 So.2d 1124 (La.1982).

Before Oliver, the First Circuit in O'Brien affirmed to allow an arrearage award to a claimant spouse who successfully appealed a denial of alimony. Without citing Frederic, O'Brien reasoned that appellate reversal of an alimony judgment nullifies it and leaves the case standing as if it had never been rendered. In Wasson, however, the First Circuit followed O'Brien, distinguished Frederic, and overruled Oliver, by reversing a trial court judgment that denied a support arrearage to a custodial spouse who, like the mother in this appeal, had succeeded in an appeal to increase support. Wasson interpreted CCP Art. 3943 and Frederic as governing only the obligations of the litigants pending an appeal and not the rights of the litigants to reimbursement or arrearages after definitive appellate review. Wasson emphasized that the obligor spouse in Frederic was not seeking reimbursement for sums he had already paid under the erroneous trial court judgment.

Concurring, Judge Lanier stressed that appellate courts can and should "grant the relief initially sought, rather than only prospective relief." 439 So.2d at 1213. Writs were denied in Wasson.

Like Wasson, we do not now interpret Frederic and its progeny either as limiting our discretion to fix the effective date of our judgment that modifies an alimony or support award or as limiting the power of a trial court to later award an arrearage or reimbursement in some amount that may result from appellate modification. This discretion allows courts, in retrospect, to evaluate the obligee's needs for the accrued sum and the support obligor's ability to pay the accrued sum. A *1150 support obligee's need during the period in which he or she successfully appeals a denial of support may justify an arrearage award in whole or in part in some circumstances and not in others. Similarly, a support obligor already burdened with support payments to an obligee, who is determined on appeal not to be in need, in some cases, may be entitled to reimbursement, in whole or in part, for the amount paid under a trial court judgment that is deemed erroneous on appeal.

In any event, the relative financial positions of the litigants and the duration of the appeal are factors which should be considered in determining whether and in what amount an arrearage or reimbursement should be decreed. We should not extend the interpretation of Frederic and Bruner

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Bluebook (online)
488 So. 2d 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/key-v-willard-lactapp-1986.