Mishlove v. Mishlove

967 So. 2d 567, 7 La.App. 3 Cir. 0495, 2007 La. App. LEXIS 1810, 2007 WL 2851103
CourtLouisiana Court of Appeal
DecidedOctober 3, 2007
DocketNo. 07-0495
StatusPublished
Cited by1 cases

This text of 967 So. 2d 567 (Mishlove v. Mishlove) 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
Mishlove v. Mishlove, 967 So. 2d 567, 7 La.App. 3 Cir. 0495, 2007 La. App. LEXIS 1810, 2007 WL 2851103 (La. Ct. App. 2007).

Opinion

PETERS, J.

| jPamela Jane Williams Mishlove (Pamela) appeals the trial court’s rejection of her request for reimbursement of funds she claims to have paid in the support of her marriage to her former husband, Dr. Lawrence Alan Mishlove (Lawrence). For the following reasons, we reverse the judgment of the trial court and render judgment in favor of Pamela Mishlove.

DISCUSSION OF THE RECORD

Pamela and Lawrence were married on February 22, 2000, separated on October 22, 2003, and were divorced by judicial decree rendered September 16, 2004. Pri- or to their marriage, the couple entered into a matrimonial agreement wherein they renounced in advance the existence of the community of acquets and gains during their marriage. Instead, they agreed that all property, whether acquired before or during the marriage, would remain the separate property of the acquirer. With regard to the expenses of the marriage, the agreement provided only that “each shall contribute proportionally to the expenses of the marriage.” This portion of the agreement provides the basis for this litigation.1

On May 12, 2004, Pamela filed a petition for declaratory judgment seeking to have the matrimonial agreement dissolved for Lawrence’s breach of the agreement, and further seeking reimbursement for monies spent and debt incurred by her for expenses of the marriage.2 The reimbursement issue, as well as a number of other issues, were heard on November 7, 2005, and after completion of the evidence, the trial court took the matter under advisement. Thereafter, on June 30, 2006, the trial |2court issued written reasons for judgment disposing of all of the issues. With regard to the reimbursement issue, the trial court stated the following:

The remaining issue to be decided by the Court was whether MS. MISH-LOVE was entitled to a money judgment from DR. MISHLOVE due to his failure to contribute proportionally to the expenses of the marriage. As the plaintiff, MS. MISHLOVE bears the burden of proof that DR. MISHLOVE failed to contribute proportionally to the expenses of the marriage.
MS. MISHLOVE introduced into evidence credit card summaries with attached statements in order to prove that she has a current credit debt of $51,922.86. She testified that these credit card charges were for expenses of the marriage.
On the other hand, DR. MISHLOVE testified that MS. MISHLOVE had run up credit card charges during the marriage which he paid off once she revealed the balances to him. According to his testimony, he admonished MS. MISHLOVE not to run the credit card bills up again since he would not pay them. DR. MISHLOVE insisted that he made regular- contributions to the household in which MS. MISHLOVE paid certain expenses and he paid the remaining expenses of the family directly-
[569]*569MS. MISHLOVE testified that DR. MISHLOVE did not give her money regular [sic] every monthly [sic], but rather he would instruct her to make purchases or charge certain items on her credit cards and would later refuse to pay her. However, MS. MISHLOVE failed to introduce into evidence any of the parties’ checking account records to indicate the amount of money DR. MISHLOVE provided her during the marriage or to show how the expenses of the marriage were paid. Accordingly, the Court finds that MS. MISHLOVE has failed to sustain her burden of proof that DR. MISHLOVE did not contribute proportionally to the expenses of the marriage and her request for a money judgment against DR. MISHLOVE in the amount of $51,992.86 is denied at her costs.

The trial court executed a judgment to this effect on December 21, 2006, and Pamela perfected this appeal thereafter. In her appeal, Pamela raises two assignments of error:

1. The trial court erred in denying her demand because she could not prove the amount of money given to her as a stipend.
2. The trial court erred in denying her demand for reimbursement of at least one-half of the household expenses.

^OPINION

In its reasons for judgment, the trial court phrased the issue as “whether MS. MISHLOVE was entitled to a money judgment from DR. MISHLOVE due to his failure to contribute proportionally to the expenses of the marriage.” After considering the issue in that context, the trial court then denied Pamela’s claim, concluding that she had not proven that Lawrence did not contribute proportionally to the expenses of the marriage. The trial court based this conclusion on the lack of evidence of the amount contributed by Lawrence. Specifically, the trial court found that Pamela “failed to introduce into evidence any of the parties’ checking account records to indicate the amount of money [Lawrence] provided her during the marriage or to show how the expenses of the marriage were paid.”

While the issue was accurately phrased by the trial court, we find that the trial court erred in finding that Pamela’s failure to introduce evidence of payments by her former husband to her was fatal to her claim. Under the terms of the prenuptial agreement, both Lawrence and Pamela were to “contribute proportionally to the expenses of the marriage.” The evidence established that during the marriage Lawrence pursued his career as a physician and Pamela worked outside the home for a very short period early in the marriage. However, during the majority of the time the couple were married, Pamela maintained the home. Earning essentially no money during the course of the marriage, she had no funds to contribute to the expenses of the marriage; instead her contribution to the expenses of the marriage consisted of her efforts in running the household. Under those conditions, Lawrence was required to pay all of the expenses of the marriage. See, generally, Fleishmann v. Fleishmann, 538 So.2d 306 (La.App. 5 Cir.1989), writ granted in part, denied in pertinent part, 567 So.2d 601 (La.1990) and Finley v. Finley, 305 So.2d 654 (La.App. 1 Cir.1974). Thus, the question before the trial court was not whether Lawrence contributed proportionately to the marriage, but rather whether the credit card debt for which Pamela seeks reimbursement was created by charging items that are valid expenses of the marriage.

[570]*570“Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 7 (La.2/20/95), 650 So.2d 742, 747. Because the record is otherwise complete in this matter, we make our own independent de novo review of the record and determine the preponderance of the evidence.

Both parties agree that Lawrence gave Pamela approximately $3,000.00 per month to cover household expenses. There also appears to be little dispute that sometime during the marriage, after Pamela had acquired a Yukon Denali automobile, he increased the amount to $4,500.00 to pay the $1,400.00 monthly note on the automobile. Thus, the uncontradicted evidence is that Pamela had approximately $3,000.00 per month to meet the financial obligations of the home.

There is also no dispute that Pamela incurred significant credit card debt during the marriage.

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Bluebook (online)
967 So. 2d 567, 7 La.App. 3 Cir. 0495, 2007 La. App. LEXIS 1810, 2007 WL 2851103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mishlove-v-mishlove-lactapp-2007.