Kirkpatrick v. Kirkpatrick

948 So. 2d 390, 2007 WL 163251
CourtLouisiana Court of Appeal
DecidedJanuary 24, 2007
Docket41,851-CA
StatusPublished
Cited by14 cases

This text of 948 So. 2d 390 (Kirkpatrick v. Kirkpatrick) 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
Kirkpatrick v. Kirkpatrick, 948 So. 2d 390, 2007 WL 163251 (La. Ct. App. 2007).

Opinion

948 So.2d 390 (2007)

Nancy J. KIRKPATRICK, Plaintiff-Appellant,
v.
Steven Wayne KIRKPATRICK, Defendant-Appellee.

No. 41,851-CA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 2007.

*392 Sockrider, Bolin, Anglin & Batte, by H.F. Sockrider, Jr., Shreveport, for Appellant.

Blackman Law Firm, by Gordon N. Blackman, Jr., A. Richard Snell, for Appellee.

Before BROWN, MOORE & SEXTON (Pro Tempore), JJ.

SEXTON, J.

This incidental action in divorce proceedings involves challenges to the trial court's awards of interim spousal support and child support following the parties' separation. For the reasons stated herein, the judgment of the trial court is affirmed.

FACTS

Steven and Nancy Kirkpatrick were married on May 29, 1986, in Fort Worth, Texas, and resided in Bossier City. Steven is a colonel in the Air Force. Nancy received her masters in counseling and was licensed as a professional counselor during the marriage. She subsequently established a practice in Shreveport, with varying levels of effort and success. After the marriage, on March 15, 1998, the parties signed a "Declaration of Intent" pursuant to La. R.S. 9:275.1 creating a covenant marriage.

In February 2004, Steven was assigned to Carswell Air Force Base in Fort Worth. Nancy would not relocate, so the couple maintained the marriage by commuting. After learning of a coming transfer to Florida and that Nancy would not relocate there, Steven filed for divorce in Tarrant County, Texas, on November 23, 2005, alleging physical separation from October 17, 2005. The Texas court declined jurisdiction. On January 23, 2006, Steven was transferred to Patrick Air Force Base in Cocoa Beach, Florida, and, on that date, Nancy filed a rule in Bossier Parish for child custody, child support, spousal support (interim and final) and termination and partition of the community property regime. One minor child, who was 17 years old at the time of the hearing and is to graduate from high school in May 2007, lives with Nancy. Another child has reached majority.

A hearing was held on the matters of child support and interim spousal support at which both parties testified regarding their respective incomes and expenses. Testimony was also adduced regarding Nancy's work history during the marriage. After the hearing, the parties submitted various calculations to the trial judge for child support and interim spousal support. Germane to this appeal are Steven's income, both parties' expenses and the income, if any, to be attributed to Nancy. Nancy's highest earning year during the marriage yielded approximately $20,000 by providing counseling services to clients.

TRIAL COURT RULING

The trial judge held that Nancy was voluntarily underemployed and imputed to her $2,000 per month income from the date *393 of judicial demand (1/23/06) for six months, then $3,000 per month thereafter. Steven's income was set at $12,500 per month. Based on those figures, the judge set spousal support at $5,000 per month for the first six months and $4,000 per month thereafter, pending further hearings involved with terminating the covenant marriage. Child support was established at $1,217.26 for the first six months and $1,196.08 per month thereafter. Nancy was awarded occupancy of the house and was ordered to pay the first and second mortgages in addition to the note on the Cadillac Escalade she is driving. Steven was awarded use of the Suburban.

DISCUSSION

Nancy appeals, challenging the trial court's imputation of income to her, the amount of income attributed to Steven, the trial court's failure to consider Steven's food and housing allowance as income and, generally, arguing that the child support and interim spousal support awards are abusively low. Steven answered the appeal, arguing that the trial court imputed too little income to Nancy and too much income to him for purposes of both child support and interim spousal support.

Applicable legal principles—Interim Spousal Support

A spouse may be awarded an interim periodic allowance based on the needs of that spouse, the ability of the other spouse to pay and the standard of living of the spouses during the marriage. La. C.C. art. 113. The purpose of interim spousal support is to maintain the status quo without unnecessary economic dislocation until a final determination of support can be made and until a period of time of adjustment elapses that does not exceed, as a general rule, 180 days after the judgment of divorce. Hitchens v. Hitchens, 38,339 (La.App.2d Cir.5/12/04), 873 So.2d 882, citing Defatta v. Defatta, 32,636, 32,637 (La.App.2d Cir.2/1/00), 750 So.2d 503, and Reeves v. Reeves, 36,259 (La.App.2d Cir.7/24/02), 823 So.2d 1023. A spouse's right to claim interim periodic support is based on the statutorily-imposed duty of the spouses to support each other during their marriage. Id., citing McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85. The needs of the wife have been defined as the total amount sufficient to maintain her in a standard of living comparable to that enjoyed by her prior to the separation, limited only by the husband's ability to pay. Hitchens, supra.

In order to demonstrate need for interim periodic spousal support, the claiming spouse has the burden of proving that he or she lacks sufficient income, or the ability to earn a sufficient income, to maintain the standard of living that he or she enjoyed during the marriage. Clark v. Clark, 34,314 (La.App.2d Cir.11/1/00), 779 So.2d 822, writ denied, 00-3196 (La.1/12/01) 781 So.2d 563, citing Thomey v. Thomey, 33,000 (La.App.2d Cir.4/7/00), 756 So.2d 698; Hollowell v. Hollowell, 437 So.2d 908 (La.App. 2d Cir.1983); Pellerin v. Pellerin, 97-2085 (La.App. 4th Cir.6/17/98), 715 So.2d 617, writ denied, 98-1940 (La.10/30/98), 727 So.2d 1167.

The trial court is vested with much discretion in determining an award of interim spousal support. Such a determination will not be disturbed absent a clear abuse of discretion. Clark, supra, citing Thomey, supra; McDermott v. McDermott, 32,014 (La.App.2d Cir.6/16/99), 741 So.2d 186; Broussard v. Broussard, 532 So.2d 281 (La.App. 3d Cir.1988).

Income attributed to Nancy—Interim Spousal Support

The primary issue on appeal concerns the trial court's finding that Nancy was *394 voluntarily underemployed and its imputation of income to Nancy for purposes of both the interim spousal and child support calculations. We will first address the imputation of income for interim spousal support calculations. As stated, the standard of review in interim spousal support awards is the manifest error standard. Nancy, however, argues for de novo review, urging that, under Arrendell v. Arrendell, 390 So.2d 927 (La.App. 2d Cir. 1980), it was legal error for the trial court to consider her earning capacity in computing the awards. Steven submits that later cases from this court have acknowledged that, even under Arrendell, there are circumstances where it is proper to consider the claiming spouse's earning capacity and that the trial court in this case did not abuse its discretion by doing so. We agree.

In Arrendell, supra, the claimant spouse appealed an award of alimony pendente lite (now interim spousal support) arguing that the lower court erred in considering her earning capacity in computing the award.

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Bluebook (online)
948 So. 2d 390, 2007 WL 163251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkpatrick-v-kirkpatrick-lactapp-2007.