Shirley v. Shirley

127 So. 3d 935, 2013 WL 5634194, 2013 La. App. LEXIS 2114
CourtLouisiana Court of Appeal
DecidedOctober 16, 2013
DocketNos. 48,635-CA, 48,636-CA
StatusPublished
Cited by9 cases

This text of 127 So. 3d 935 (Shirley v. Shirley) 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
Shirley v. Shirley, 127 So. 3d 935, 2013 WL 5634194, 2013 La. App. LEXIS 2114 (La. Ct. App. 2013).

Opinion

CARAWAY, J.

_[iThis appeal involves incidental demands in covenant marriage divorce proceedings. The trial court awarded joint custody of the two minor children of the marriage, child support, and interim and final periodic spousal support. In the judgment, the trial court awarded joint custody and child support with domiciliary status to the mother, but did not specify the amount of physical custody for each party. Finding the child custody and support rulings incomplete, we dismiss the appeal for those matters and remand for further proceedings. The remainder of [937]*937the judgment concerning interim and final spousal support is affirmed.

Facts and Procedural Background

John Campbell Shirley (“John”) and Monica Shirley, Nee Dusenbery (“Monica”), entered into a covenant marriage on December 6, 1997. Two children were born of the marriage, ACS, born August 12, 1998, and VGS, born March 22, 2001. In 2008, Monica filed for judgment of separation from bed and board pursuant to La. R.S. 9:307(B) on the ground of habitual intemperance on the part of John. In the petition, she also filed for incidental relief such as periodic spousal support, child support, and child custody. This petition was followed by a brief reconciliation period in late 2009. Nevertheless, on June 3, 2010, John filed an answer to Monica’s original petition for separation and a reconventional demand for divorce on the ground of adultery. In August 2010, he amended his answer and reconventional demand seeking joint custody of the children, but domiciliary status of only ACS.

[2On September 7, 2010, Monica filed a motion to dismiss her petition for separation from bed and board due to the parties’ 2009 reconciliation. On the same day, she filed a new petition for separation from bed and board that was substantively the same as the first. On March 25, 2011, the trial court granted the motion to dismiss the original petition on the ground of reconciliation. John disputed that reconciliation occurred as a legal matter. However, the trial court ruled that the parties had in fact reconciled. This judgment was never appealed.

After a hearing on January 31, 2012, John orally amended his petition for divorce. He alleged that the parties had been living separate and apart for two years and that he was entitled to a covenant marriage divorce pursuant to La. R.S. 9:307(A)(5). Monica did not object to this amendment of the action or dispute the parties’ two years of separation. The trial court granted a divorce on this oral petition on the same day. The hearings on child custody, child support, and periodic spousal support occurred in January, February and June of 2012.

The evidence at trial regarding interim and final periodic support was adduced from the parties’ testimony and John’s accountant, David Johnston (“Johnston”). Monica testified that she had no current employment, but was searching for a job. She stated she inquired about jobs as a restaurant server at several locations but never applied because she would be unable to be at home when her children would arrive home from school. Monica testified that she had begun nursing school prior to her marriages to John and a previous husband. At that time, she needed only two semesters to obtain a ^nursing degree but would have to start anew if she were to go back to nursing school. Additionally, she testified she had experience as a restaurant server and bartender, as well as experience managing her mother’s restaurant in Houma. Furthermore, the parties agreed at the outset of the marriage that Monica would be a stay-at-home mother.

Monica executed an affidavit on June 20, 2012, listing her expenses for purposes of establishing her claim to the various support awards. It showed her total monthly net income as zero and her total monthly expenditures as $10,220 per month, with the largest portion being for housing at $3,500 per month. However, the trial court found that many of the expenses in the affidavit were admitted estimates and that many items were not necessities.

John and Monica’s 2008 joint tax return was entered into evidence showing a total income of $453,877 and an adjusted gross income of $440,978. Johnston testified regarding John’s income for 2009-2011 from [938]*938various sources, such as his income as trust beneficiary, his income from various investments, his income from royalties from oil and gas leases, and income from his catering business, Campatori Catering, LLC, of which he and Monica are the only members. Those income sources totaled $256,955 in 2009, and $229,010 in 2010.1 Additionally, Johnston testified that John’s projected income in 2011 would be $176,747.2

| Contesting John’s presentation of his income, Monica introduced into evidence John’s monthly expenses of $85,000, claiming that this should be the basis of determining his income rather than his tax returns or Johnston’s income assessment. Also introduced into evidence was a number of bank statements from various banks where the parties held accounts. The parties stipulated that John had liquid assets of at least $500,000.

Concerning the issue of fault, Monica testified that she had two sexual relationships. Prior to the parties’ reconciliation in late 2009 and after her original petition for separation from bed and board, she admittedly had a sexual relationship with a man named Webb. The only other adultery specifically alleged by John was an affair with a man named Rhodes. Monica testified that initially they had only a platonic relationship, but she admitted it became sexual as of August 11, 2010, after John’s reconventional demand in the summer of 2010. Rhodes’s deposition was also introduced into evidence, in which he substantiated Monica’s testimony by stating that the relationship became sexual sometime in August 2010. No other evidence of adulterous fault was presented.

After considering all the evidence, the trial court found that there had been no post-reconciliation fault3 by Monica and that she was in need of support. The court ordered John to pay interim spousal support in the amount of $8,600 retroactive to September 7, 2010, terminating 180 days after the date of divorce on June 30, 2012, for a total amount of $75,600. |sThe judgment further ordered John to pay Monica final periodic support in the amount of $2,200 per month for a period of three years beginning July 1, 2012, and terminating on July 1, 2015.

The issues of child custody and support were also litigated during the trial of these matters. The trial court ordered joint custody of the children and designated Monica as the “primary custodial or domiciliary parent.” The trial court also ordered a joint custody implementation plan (“JCIP”) be submitted within 30 days with the following provisions:

(1) No overnight guests of the opposite sex to whom the parties are not related.
(2) No consuming illicit drugs or alcohol when having the children.
(3) Provide for regular telephone and email communication time with whomever [sic] is the non-custodial parent at that time.
(4) A plan for how to share information when the other party has the child.
(5) Regular counseling for all parties to address communication and other issues for at least one year from the [939]*939date of this judgement [sic ], as prescribed in Dr. Thigpen’s report.

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Cite This Page — Counsel Stack

Bluebook (online)
127 So. 3d 935, 2013 WL 5634194, 2013 La. App. LEXIS 2114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirley-v-shirley-lactapp-2013.