Norvell v. Norvell

649 So. 2d 95, 1995 WL 19655
CourtLouisiana Court of Appeal
DecidedJanuary 19, 1995
Docket94-CA-0001
StatusPublished
Cited by7 cases

This text of 649 So. 2d 95 (Norvell v. Norvell) 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
Norvell v. Norvell, 649 So. 2d 95, 1995 WL 19655 (La. Ct. App. 1995).

Opinion

649 So.2d 95 (1995)

Dorothy Delores NORVELL
v.
Clifford Harry NORVELL.

No. 94-CA-0001.

Court of Appeal of Louisiana, Fourth Circuit.

January 19, 1995.
Rehearing Denied February 15, 1995.

Pat M. Franz, Metairie, for appellant.

Ellen Widen Kessler, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, for appellee.

Before LOBRANO, JONES and LANDRIEU, JJ.

LOBRANO, Judge.

This appeal arises from a judgment reducing the amount of monthly alimony to be paid to plaintiff-appellant, Dorothy Delores Norvell from defendant-appellee-cross appellant, Clifford Harry Norvell.

FACTS AND PROCEDURAL HISTORY:

Dorothy D. Norvell was granted a divorce from Clifford Norvell in the Circuit Court of Shelby County, Tennessee in 1977. The final divorce decree provided for payment of alimony in futuro to Mrs. Norvell in the amount of $1,150.00 per month until Mrs. Norvell remarried.

*96 In September, 1983, as a result of a petition to modify filed by Mr. Norvell, the trial court temporarily reduced the monthly alimony from $1,150.00 to $850.00. This reduction was to continue until Mr. Norvell obtained employment with income sufficient to pay the original amount.

In March, 1986, Ms. Norvell filed a petition for contempt. Mr. Norvell was subsequently not found in contempt. However, the trial court ordered him to pay the arrearages due and further ordered him to pay into an escrow account, by December of each year, the total amount of alimony due the following year.

In February, 1989, Ms. Norvell again filed a petition for contempt alleging that Mr. Norvell had not paid the alimony to the escrow agent for the year 1989 as ordered by the court. Mr. Norvell countered by filing a petition to terminate alimony due to a change in circumstances.

In May, 1990, following a hearing on the merits, the trial court reduced the alimony in futuro from $850.00 per month to $400.00 per month retroactive to January 1, 1990 and further ordered that all alimony payments were to terminate as of December 31, 1990. This judgment was reversed by the Tennessee appellate court. The $850.00 per month alimony was reinstated retroactive to January, 1990. In its' decree, the Tennessee appeals court further stated that none of the provisions of the decree entered in March 1986 were modified in any way.[1] On February 19, 1991, the Tennessee Supreme Court denied Mr. Norvell's application for permission to appeal.

Subsequently, Ms. Norvell filed a third petition for contempt. In May 1991, Mr. Norvell was found in contempt for failing to abide by the orders of the court. The court rendered judgment against Mr. Norvell for arrearages in the amount of $15,600.00 "together with pre-judgment interest at the rate of 10% per annum from the date each alimony payment was due and post-judgment interest at the rate of 10% per annum" from the date of the order.

During the pendency and resolution of the litigation in Tennessee between the parties, Mr. Norvell moved to New Orleans, Louisiana, in 1985 and Ms. Norvell moved to Aspen, Colorado in 1988.

Litigation in Louisiana began on June 21, 1991 when Ms. Norvell filed a petition in the Civil District Court for the Parish of Orleans seeking to have the May 21, 1991 Tennessee judgment for arrearages made executory. See, La.R.S. 13:4241, et seq. On July 22, 1991 the trial court ordered the Tennessee judgment be made executory.

Ms. Norvell then proceeded with enforcement of the judgment through a writ of fieri facias and garnishment proceedings against accounts owned by Mr. Norvell. Mr. Norvell responded by filing a motion to stay execution of the judgment, alleging lack of notice. The stay was granted upon the posting of security. At the same time, Mr. Norvell filed pleadings requesting a reduction in the amount of monthly alimony. Service was perfected on Ms. Norvell's attorney. Ms. Norvell countered with exceptions of lack of jurisdiction and improper service of process. The trial court denied these exceptions. Writs were applied for and denied by this Court and the Louisiana Supreme Court. Norvell v. Norvell, unpub. 92-C-0060 (La. App. 4th Cir. Jan. 27, 1992), writ den. 594 So.2d 1322 (La.1992).

On June 3, 1992, upon motion by Ms. Norvell, the trial court granted a partial release of a garnished account for the purpose of payment of a check for the principal amount of alimony arrearages. However, the parties were unable to agree as to the amount of interest due. The trial court ruled that the interest was due on the lump sum payment from the date it was to be paid to the escrow agent. This court reversed that decision and ruled that the interest was due as of the date each installment was to be paid to Ms. Norvell. The trial court's ruling suspending the accrual of interest from September 16, 1991 to April 15, 1992 was affirmed. Norvell v. Norvell, 629 So.2d 1312 (La.App. 4th Cir.1993).

*97 On February 19, 1993, the trial court heard Mr. Norvell's rule to reduce alimony.

In a judgment signed August 16, 1993, the trial court reduced the monthly alimony payments to $500.00 retroactive to April 1, 1993.

Ms. Norvell appeals that judgment asserting the following assignments of errors:

1) The trial court erred in exercising jurisdiction to modify the judgment of another state which awarded periodic alimony.
2) The trial court erred in its choice of law in determining the demand for the modification of alimony awarded by a judgment of another state.
3) The trial court erred in its application of Louisiana law to the demand for modification of alimony awarded by a judgment of another state.

Mr. Norvell answers the appeal and cross-appeals asserting the following assignments of error:

1) The trial court erred by not terminating the alimony payments or, in the alternative, by not reducing it to $300.00 per month.
2) The alimony reduction should have been made retroactive to the date of filing because good cause was not shown to limit retroactivity.

The principal issues for our determination involve questions of jurisdiction and choice of law.

ASSIGNMENT OF ERROR 1:

Mrs. Norvell asserts that the denial of her exceptions to the court's jurisdiction was manifestly erroneous and, despite our previous ruling on her writ application, should be reconsidered by this court, citing Wells v. Gillette, 620 So.2d 301 (La.App. 4th Cir.1993) in support.

Mr. Norvell argues that our prior writ disposition is the law of the case and that Wells is not applicable.

This Court previously considered Ms. Norvell's argument via her application for writs and concluded that "[t]he trial court correctly denied the exceptions filed by the relator." Wells v. Gillette, supra, recognized that the "law of the case" doctrine is not an inflexible rule and should not be dispositive of an issue where to do so would accomplish an obvious injustice, or where the prior appellate decision was clearly, palpably or manifestly erroneous. Id. at 303. However, for the following reasons, we conclude that Wells is inapplicable and that our previous writ disposition was correct.

Ms. Norvell argues lack of jurisdiction over her person and lack of subject matter jurisdiction. She asserts that the mere use of Louisiana courts to enforce her Tennessee judgment does not equate with submitting to the personal jurisdiction of our courts for other proceedings and does not satisfy minimal due process requirements. She analogizes Mr.

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

Related

Munnerlyn v. Munnerlyn
179 So. 3d 747 (Louisiana Court of Appeal, 2015)
Logemann Holding, Inc. v. Lieber
Appellate Court of Illinois, 2003
Dillon v. Dillon
846 So. 2d 153 (Louisiana Court of Appeal, 2003)
Canizaro Trigiani Architects v. Crowe
815 So. 2d 386 (Louisiana Court of Appeal, 2002)
Amin v. Bakhaty
798 So. 2d 75 (Supreme Court of Louisiana, 2001)
Reading & Bates Construction Co. v. Baker Energy Resources Corp.
976 S.W.2d 702 (Court of Appeals of Texas, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
649 So. 2d 95, 1995 WL 19655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norvell-v-norvell-lactapp-1995.