Lowentritt v. Lowentritt

90 So. 3d 1081, 11 La.App. 5 Cir. 703, 2012 WL 833269, 2012 La. App. LEXIS 319
CourtLouisiana Court of Appeal
DecidedMarch 13, 2012
DocketNo. 11-CA-703
StatusPublished
Cited by6 cases

This text of 90 So. 3d 1081 (Lowentritt v. Lowentritt) 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
Lowentritt v. Lowentritt, 90 So. 3d 1081, 11 La.App. 5 Cir. 703, 2012 WL 833269, 2012 La. App. LEXIS 319 (La. Ct. App. 2012).

Opinion

MARION F. EDWARDS, Chief Judge.

|2In this domestic matter, plaintiff/appellant, Melissa Abreo Lowentritt (“Ms. Abreo”), appeals a decision of the trial court regarding issues relating to interim spousal support, child support, and use and occupancy of the family home. We amend the judgment on appeal before us and, as amended, we affirm for the reasons assigned herein.

Ms. Abreo and Dr. Joshua Lowentritt were married on June 5, 1993 and had three children. On January 12, 2009, Ms. Abreo filed for divorce based on La. C.C. art. 102 seeking interim spousal support, child support, and use and occupancy of the family home in River Ridge, Louisiana. Dr. Lowentritt filed a motion for termination of the community and separation of property on August 11, 2009, alleging that the parties had been living separate and apart since January 12, 2009. That issue was settled by a consent judgment of the parties on September 3, 2009 in which they agreed to terminate the community effective January 12, 2009.

The matter proceeded with child custody issues and discovery relating to the assets of the community and income of the parties. A judgment of divorce was rendered on March 11, 2010. The parties entered into a consent judgment on June 2, 2010 in which Ms. Abreo was awarded the exclusive use and occupancy of the |Rfamily home and deferred the issue of rental reimbursement until partition of community property.1

The matter went before a hearing officer and recommendations were made on interim spousal support, child support, and mortgage and rental reimbursements for use of the family home. Both parties filed objections to the recommendations, and the matter went before the trial court on November 3, 2010. After the hearing, the trial court held the matter open for post-trial memoranda and took the matter under advisement. On December 16, 2010, the trial court rendered judgment award[1084]*1084ing Ms. Abreo use and occupancy of the home and interim spousal support for the period of January 12, 2009 through September 11, 2010 in the amount of $5,000 per month. The judgment also made Ms. Abreo responsible for the mortgages, property taxes, and insurance on the family home “while she resides therein.” The trial court found Dr. Lowentritt’s monthly income to be $42,780 and Ms. Abreo’s to be $3,000, thereby assessing 96 percent of the financial needs of the children to Dr. Low-entritt and 4 percent to Ms. Abreo. The trial court also awarded Ms. Abreo $4,498.00 per month in child support.

Ms. Abreo filed a motion for new trial opposing the decision of the trial court on child support and spousal support. Specifically, Ms. Abreo asserted the trial court failed to address the minor children’s medical/dental and/or other expenses as provided by La. R.S. 9:315.5 and 9:315.6 and failed to consider the mortgages, property taxes, and insurance expenses on the home as part of the support obligation.

The trial court granted the motion for new trial in part ordering Dr. Lowentritt to continue to maintain the three minor children on health and Lhospitalization insurance and proportionately divided the unreimbursed medical expenses between the parties. In all other respects, the motion for new trial was denied. Ms. Abreo has appealed both the original judgment and the amended judgment.

Ms. Abreo has also filed a motion to strike certain parts of Dr. Lowentritt’s brief not in evidence on the record. This Court is a court of record and may not review evidence that is not in the appellate record, or receive new evidence.2 We have not considered any discussion of fact not introduced into evidence at trial. Accordingly, the motion to strike is denied as moot.

On appeal, Ms. Abreo assigns six errors for our review. In those errors, Ms. Abreo questions the trial court’s calculations in the incomes of both parties and in the amount of child support and interim spousal support. Ms. Abreo also asserts the trial court erred in ordering her to be responsible for the mortgages, property taxes, and insurance while she resides in the family home. In the final error, Ms. Abreo asserts the trial court should have granted her motion for new trial.

LAW AND ANALYSIS

Ms. Abreo’s first two assignments are that the trial court erred when it found Dr. Lowentritt’s income to be $42,780 per month and Ms. Abreo’s to be $3,000. As to Dr. Lowentritt’s income, Ms. Abreo agrees with most of the expert calculation offered by testimony and documentation at trial that Dr. Lowentritt’s 2010 gross monthly income was $40,368. However, Ms. Abreo argues that Dr. Lowentritt disagrees with the assessment of monthly income received from a real estate holding group. The expert testimony offered by Barry Lee shows a calculation of $1,300 per month. Ms. Abreo argues that amount is actually $1,700 |sper month. Ms. Abreo also questions a negative $1,800 of income from another investment.

According to Ms. Abreo’s calculations, Dr. Lowentritt’s income should have been found to be $42,056.32. While Ms. Abreo acknowledges that the trial court actually imputed a higher income to Dr. Lowen-tritt, she argues that the trial court should have considered certain reimbursements received by Dr. Lowentritt for personal expenses to increase his income to $44,556.32.

Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or [1085]*1085operation of a business can be considered in the calculation of gross income.3 It is within the trial court’s discretion to decide what amount is appropriate for inclusion in gross ineome.4 In the matter before us, the trial court heard evidence from Mr. Lee, Dr. Lowentritt’s financial expert. Ms. Abreo did not present expert evidence to refute this testimony. Further, Ms. Abreo acknowledges that the trial court increased Dr. Lowentritt’s monthly income by about $723 over what Mr. Lee testified that the doctor earned. Clearly, the trial court considered some of the reimbursements for inclusion in its finding of Dr. Lowentritt’s monthly income. Considering the facts of this case, we find no abuse of the trial court’s discretion.

Ms. Abreo argues that the trial court overestimated her monthly earnings when it found that she has the capacity to earn $3,000. Ms. Abreo argues her income should have been computed by the trial court at 25 hours a week times $17 per hour, or $425 per week, or $1,770.83 per month. Ms. Abreo makes these calculations based on the actual hours she works at her part-time job as a Community Service Representative at Home Instead Senior Care. At the trial, Ms. | rAbreo testified that she has a college degree, but she has been out of the work force for fourteen years and is actively seeking a full-time position.

The definition of “income” for purposes of child support includes the earning potential of a voluntarily unemployed or underemployed party.5 If a party is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated, or is caring for a child of the parties under the age of five years.6 When determining whether a spouse is underemployed for the purpose of calculating a child support obligation, the court shall consider that spouse’s earning capacity in light of all circumstances.7

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Cite This Page — Counsel Stack

Bluebook (online)
90 So. 3d 1081, 11 La.App. 5 Cir. 703, 2012 WL 833269, 2012 La. App. LEXIS 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowentritt-v-lowentritt-lactapp-2012.