Mizell v. Mizell

920 So. 2d 927, 2006 WL 167705
CourtLouisiana Court of Appeal
DecidedJanuary 25, 2006
Docket40,601-CA
StatusPublished
Cited by5 cases

This text of 920 So. 2d 927 (Mizell v. Mizell) 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
Mizell v. Mizell, 920 So. 2d 927, 2006 WL 167705 (La. Ct. App. 2006).

Opinion

920 So.2d 927 (2006)

Mona Elizabeth Harper MIZELL, Plaintiff-Appellee
v.
Jerry Allen MIZELL, Defendant-Appellant.

No. 40,601-CA.

Court of Appeal of Louisiana, Second Circuit.

January 25, 2006.

*928 Donald L. Kneipp, Monroe, for Appellant.

Loomis & Dement, by Albert E. Loomis, III, Monroe, for Appellee.

Before STEWART, PEATROSS & DREW, JJ.

PEATROSS, J.

In 2002, Jerry Allen Mizell ("Jerry") and his wife, Mona Elizabeth Harper Mizell ("Mona"), were divorced. At that time, Jerry was ordered by the trial court to make permanent spousal support payments of $2,100 per month for ten years. On appeal, this court reduced that figure to $1,000 per month.[1] In 2005, Jerry challenged the permanent spousal payments and argued that they were unnecessary and that Mona's financial situation had changed such that she did not need them. After a bench trial on the matter, the trial judge refused to reduce or terminate said payments. From this ruling, Jerry now appeals. For the reasons set forth herein, we reverse and remand the lower court's ruling.

FACTS

This dispute concerns whether or not there exists a continued necessity for Jerry's permanent spousal support payments to Mona. Jerry and Mona were married for 22 years. Mona only worked during four of those years; and, according to both parties, at the time of divorce, she had "no skill or trade."[2] Following their divorce, Mona found employment with State Farm of Monroe, Louisiana, and her financial status improved. Her monthly income has increased $900 and she saw a decrease in her regular living expenses. As a result of her improved financial status, Jerry filed suit to terminate or reduce his court-ordered spousal payments. Shortly after the ruling in this suit, however, Mona was terminated from her job at State Farm. *929 Mona was given nine weeks of severance and had no job prospects at the time of trial. The trial court signed a motion on May 14, 2005, declining to reduce or terminate periodic spousal support. From this ruling, Jerry now appeals.

DISCUSSION

Issue (verbatim): Whether the trial court committed legal errors and abused its discretion in denying Mr. Mizell's motion to terminate or reduce spousal support, given that the trial court considered improper facts, neglected relevant facts, and misapplied the law to the facts actually shown.

Permanent alimony is awarded to a former spouse in need and is limited to an amount sufficient for maintenance as opposed to continuing an accustomed style of living. Brewton v. Brewton, 30,134 (La. App.2d Cir.1/21/98), 705 So.2d 799; Gibbs v. Gibbs, 33,169 (La.App.2d Cir.6/21/00), 764 So.2d 261; Francis Council v. Council, 34,290 (La.App.2d Cir.12/15/00), 775 So.2d 628. Maintenance is limited to necessary items such as food, shelter, clothing, transportation, medical and drug expenses, utilities, household necessities and income tax liabilities generated by alimony payments. Settle v. Settle, 25,643 (La.App.2d Cir.3/30/94), 635 So.2d 456, writ denied, 94-1340 (La.9/16/94) 642 So.2d 194; Gibbs, supra.

Final periodic spousal support is governed by La. C.C. art. 112 ("the 112 factors"), which states:

A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support. Those factors may include:
(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party's earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.

An award of spousal support is never final. Gibbs, supra. An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary, per La. C.C. art. 114. The burden of proof (that circumstances have changed) lies with the party seeking the termination or modification. Id. A finding of change in circumstances does not automatically result in a modification or termination of support. Brewton, supra. Such a factual finding does, however, shift the burden to the party opposing the modification or termination of alimony to prove need and the relevant 112 factors. Id.

Jerry first argues that, because the trial judge did not explain his reasons for judgment, the parties and this court are left to speculate regarding how he reached his conclusion. To this end, Jerry asserts that the trial judge used "inflated estimates" offered by Mona in his ruling on this matter. Jerry argues that the estimates given by Mona via affidavit, and relied upon by the trial judge, were "flatly contradicted" by her actual expenses as shown in her bank statements.

Jerry argues that Mona's monthly maintenance expenses are $2,033.53, $912.84 of which is her house note. He contends that the house note is actually an amalgamation of three consolidated debts and a cash pay *930 out: (1) $58,235.67 of remaining balance on the (former) matrimonial domicile; (2) $38,772.97 of Mona's personal credit card debt; (3) $11,292.51 in "unspecified debts" and (4) $19,759.52 in cash. From this, Jerry contends that the only debt properly attributable to Mona's living expenses is the outstanding balance on the house, which constitutes approximately 44 percent of the total debt, or $402.73. Jerry contends that the remaining $510.11 should be deducted from the $2,033.53 maintenance figure, leaving him to pay $1,523.43.

Jerry next asserts that the trial court identified "assisting daughter" as a 112 factor in its ruling. He points out that the trial court erred in making this consideration as the couple's children were both majors at the time of the ruling. He cites Green v. Green, 432 So.2d 959 (La.App. 4th Cir.1983); Launey v. Launey, 98-849 (La. App. 4th Cir.12/9/98), 722 So.2d 406; and Parker v. Parker, 93-817 (La.App. 3d Cir.3/2/94), 634 So.2d 1231; for the proposition that, under Louisiana jurisprudence, the support of a major child has no bearing in determining a spouse's need for spousal support. Jerry argues that this was a "clear error" by the trial judge and cites Parker, supra, for the proposition that Mona's household expenses should be reduced by half to $761.21.[3]

Jerry next argues that the fact that Mona could prospectively become unemployed should not have been included among the 112 factors listed by the court. More to the point, he notes that, at the time of this ruling, Mona was employed and was earning an annual salary of $30,443.73. In summation, Jerry argues that the trial judge undertook speculative considerations in this case and was in error by ruling as he did.

Jerry states that Mona owed $912 per month on the "house note," but he argues that only a portion of this amount was allocated towards the matrimonial domicile. He argues that the remainder was "attributable to [Mona's] personal debt." In support of this, he cites Launey, supra,

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Cite This Page — Counsel Stack

Bluebook (online)
920 So. 2d 927, 2006 WL 167705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mizell-v-mizell-lactapp-2006.