Marciante v. Marciante

113 So. 3d 387, 12 La.App. 5 Cir. 569, 2013 WL 1287389, 2013 La. App. LEXIS 601
CourtLouisiana Court of Appeal
DecidedMarch 27, 2013
DocketNo. 12-CA-569
StatusPublished
Cited by4 cases

This text of 113 So. 3d 387 (Marciante v. Marciante) 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
Marciante v. Marciante, 113 So. 3d 387, 12 La.App. 5 Cir. 569, 2013 WL 1287389, 2013 La. App. LEXIS 601 (La. Ct. App. 2013).

Opinion

ROBERT M. MURPHY, Judge.

| ^Defendant, William S. Marciante, Jr., appeals the judgment granted in favor of his former wife, Anna Faye Caminita Mar-ciante, after a new trial was held on the issues of child support arrearages and contempt, as well as the judgment granting Ms. Marciante’s motion for new trial. Mr. Marciante argues that the trial court erred in considering evidence of his unrelated post-judgment arrest for the purpose of determining Mr. Marciante’s credibility in this action. For the reasons that follow, we reverse the judgment granting Ms. Marciante’s motion for new trial, vacate the judgment rendered after the new trial and reinstate the original judgment of October 26, 2011.

FACTS AND PROCEDURAL HISTORY

On March 28, 2008, Anna Faye Caminita Marciante filed a petition for divorce against William S. Marciante, Jr. On June 17, 2009, Mr. and Mrs. Marciante entered into a consent judgment regarding the custody arrangement and child support obligation for their minor child. Pursuant to the consent judgment, Mr. Marciante agreed to pay Ms. Marciante the sum of $500 per month in child support payments for their son.

|3On April 3, 2008, Mr. and Ms. Marci-ante signed a “Voluntary Act of Partition of Community Property” regarding the settlement and partition of their community property regime. Because Mr. and Ms. Marciante were still married to each other at the time of signing their community property settlement, they sought and received court approval of the settlement agreement on the same date that their consent judgment regarding child custody and support was made a judgment of the court, June 17, 2009. Under the parties’ community property settlement, Ms. Mar-ciante received the former family home. By judgment rendered on August 81, 2009, Ms. Marciante was granted a divorce from Mr. Marciante.

Approximately two years later, Ms. Marciante filed a Rule for Contempt alleging that Mr. Marciante had failed to make any child support payments pursuant to the June 17, 2009 consent judgment. Ms. Marciante also requested an increase in Mr. Marciante’s child support obligation. On September 14, 2011, Mr. Marciante responded by filing a Motion to Reduce his Child Support Obligation because his current wife had recently lost her job and because his salary had decreased. Within the same motion, Mr. Marciante also requested a modification of the parties’ community property settlement to reflect the true intention of the parties. Specifically, Mr. Marciante claimed that the parties intended for Mr. Marciante to receive a credit for child support payments equal to the amount of profit that Ms. Marciante received from the sale of their former community residence. This agreement was not reflected in the provisions of the parties’ original community property settlement.

The matter first came before the court for hearing on September 19, 2011. At the hearing, Mr. Marciante testified that he did not make any child support payments because he and Ms. Marciante entered into an oral agreement wherein he would not pay any child support for their son “[d]ue to the fact that [Ms. |4Marciante] would retain the house and upon sale of the house, [Ms. Marciante] would get all profits from the house.” Mr. Marciante testified that in addition to this offset of his child support obligation, the parties agreed [389]*389that Ms. Marciante would be allowed to keep a four thousand dollar ($4,000) life insurance policy to be put towards their child’s expenses; to claim their child as a dependent on her tax returns; and that Mr. Marciante would not seek spousal support from Ms. Marciante. Mr. Marciante stated that the parties confected this oral agreement after signing the consent judgment at Ms. Marciante’s attorney’s office in 2008.

When asked why he signed the consent judgment if it did not reflect the parties’ actual agreement regarding child support, Mr. Marciante explained that he signed the judgment because his ex-wife’s lawyer advised that a judge would not sign their divorce settlement without the inclusion of a provision for child support. He testified that he never moved the court to modify the consent judgment to reflect the parties’ oral agreement because Ms. Marci-ante had not altered the terms of their oral agreement prior to the filing of her Rule for Contempt. Ms. Marciante testified that no such oral agreement existed between she and her ex-husband.

In its reasons for judgment, the trial court stated that it found Mr. Marciante to be a credible witness and held that Mr. Marciante had proven the existence of an oral agreement between the parties in accordance with his testimony. Therefore, the court denied Ms. Marciante’s motion for child support arrearages in a judgment dated, October 26, 2011.

On November 2, 2011, Mr. Marciante was arrested for unrelated charges of malfeasance, injury to public records, forgery and payroll fraud. On November 7, 2011, Ms. Marciante filed a motion for a new trial. In her motion, Ms. Marciante alleged that Mr. Marciante’s arrest negatively impacted his credibility as it related to the court’s October 26, 2011 judgment, such that a new trial should be granted Lunder La. C.C.P. article 1972(2), based on newly discovered evidence, and under La. G.C.P. article 1978, based on a showing of good grounds for a new trial. A hearing was held on the motion for new trial on December 5, 2011, wherein Mr. Marciante argued that he is entitled to a presumption of innocence until proven guilty and requested, in the alternative, that the court defer setting any new trial until after his pending criminal case has concluded. At the hearing, the trial court granted Ms. Marciante’s motion for a new trial as to the issues of child support arrearages and contempt.

The new trial was held on April 23, 2012. During the trial, the court took judicial notice of Mr. Marciante’s pending criminal case, specifically noting that Mr. Marciante had been arrested, but had not yet been formally charged. On April 26, 2012, the trial court rendered a judgment in favor of Ms. Marciante and against Mr. Marciante, finding Mr. Marciante liable for past-due child support in the amount of $20,500. In its reasons for judgment, the trial court emphasized that credibility was a main issue in determining the issue of child support arrearages in its October 26, 2011 judgment. Accordingly, the court concluded that the underlying allegations of Mr. Marciante’s criminal charges “strikes at his believability,” and found that Mr. Mar-ciante’s testimony regarding the alleged oral agreement between he and his ex-wife cannot be deemed credible. This appeal followed.

DISCUSSION

In his sole assignment of error, Mr. Marciante argues that the trial court erred by considering evidence of his post-judgment arrest in granting Ms. Marciante’s motion for new trial on December 5, 2011, and therefore, the April 26, 2012 judgment rendered after the new trial cannot stand. [390]*390Mr. Marciante argues that Louisiana Code of Evidence article 609(F) precludes the court from ^considering evidence of his post-judgment arrest for the purpose of attacking his credibility.

In response, Ms. Marciante argues that the judgment granting the motion for new trial cannot be reviewed on appeal because Mr. Marciante failed to take an “appeal” from that judgment within the appropriate time period. We note that a party cannot file an immediate appeal from a judgment granting a new trial and must seek review by supervisory writ, in order to obtain immediate review of that judgment. While we agree that Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Collins v. Davis
214 So. 3d 974 (Louisiana Court of Appeal, 2017)
Provosty v. ARC Construction, LLC
204 So. 3d 623 (Louisiana Court of Appeal, 2016)
Branch v. Young
136 So. 3d 343 (Louisiana Court of Appeal, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
113 So. 3d 387, 12 La.App. 5 Cir. 569, 2013 WL 1287389, 2013 La. App. LEXIS 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marciante-v-marciante-lactapp-2013.