Short v. Short

77 So. 3d 405, 2011 La. App. LEXIS 1247, 2011 WL 5061362
CourtLouisiana Court of Appeal
DecidedOctober 25, 2011
DocketNo. 11-CA-3
StatusPublished
Cited by4 cases

This text of 77 So. 3d 405 (Short v. Short) 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
Short v. Short, 77 So. 3d 405, 2011 La. App. LEXIS 1247, 2011 WL 5061362 (La. Ct. App. 2011).

Opinion

FREDERICKS HOMBERG WICKER, Judge.

|2In this domestic matter, Pamela Mari-novich Short appeals two judgments. First, Ms. Short appeals the judgment following this Court’s remand, Short v. Short, 09-639, p. 15 (La.App. 5 Cir. 3/23/10), 33 So.3d 988, 997, writ denied, 10-1086 (La.9/3/10), 44 So.3d 688, wherein the trial judge ruled on remand that David Allen Short was not liable for a pro rata share of private school tuition (“tuition judgment”).1 Second, Ms. Short appeals the judgment wherein the trial judge determined the parties did not enter into a valid Covenant Marriage (“Covenant Marriage judgment”).2 This case presents two issues for our review: (1) Was the trial judge manifestly erroneous in finding that the parties failed to meet the statutorily-mandated requirements for a valid covenant marriage? (2) Was the trial judge manifestly erroneous or did he abuse his discretion in finding that Ms. Short failed to meet her burden in proving that an education at Kehoe-|Francea was necessary to meet the children’s needs? Finding no manifest error or abuse of discretion in the trial judge’s findings, we affirm.

Procedural History

Covenant Marriage Proceedings

These parties were married in 1997. In 2006, Ms. Short filed a petition for separation and other relief in which she asserted the parties contracted a Covenant Marriage and Mr. Short was guilty of cruel treatment in breach of the Covenant Marriage contract. In 2008 the parties were divorced pursuant to La.C.C. art. 103(2) based on testimony from Ms. Short that, in August 2007, she and her three children [408]*408had moved in with Randy Menendez with whom she has a sexual relationship. Short, 09-639 at 4, 33 So.3d at 990.

Mr. Short filed various pleadings (including petitions for divorce) objecting to the assertion that the parties had contracted a Covenant Marriage.

Before considering Mr. Short’s latest divorce petition asserting Ms. Short’s alleged adultery, the trial judge conducted evidentiary hearings to determine whether the parties entered into a valid Covenant Marriage. In a ruling rendered in open court on March 18, 2008, and reduced to writing and signed on July 7, 2008, the trial court found that the parties did not enter into a Covenant Marriage. Ms. Short filed a timely motion for new trial, which the trial judge denied in open court on August 4, 2008. That judgment was not reduced to writing and signed until August 18, 2010, after the Louisiana Supreme Court denied writs in the former appeal.3 Short, 10-1086 (La.9/3/10), 44 So.3d 688. Until then any appeal from the Covenant Marriage judgment was premature. See: La.C.C.P. art. 1914(C).

| .(Previously, we pretermitted a discussion of the validity of the Covenant Marriage presented by Ms. Short’s answer to the former appeal, finding that matter was not before this Court. Short, 09-639 at 7, 33 So.3d at 993. We find that the issue is now ripe for review.

Tuition Proceedings

Mr. and Ms. Short share joint custody with Ms. Short as the domiciliary parent. Three children were born of the marriage: Anthony, Sarah, and Amanda.

The children had been homeschooled but in 2007, Ms. Short enrolled them in a private school — Kehoe-France on the North Shore — at a cost of approximately $15,000 to $18,000 per year. In July 2008, the trial court found that Mr. Short was responsible for 94% of the children’s tuition costs as extraordinary expenses added to the basic child support obligation, La. R.S. 9:315.6(1), for the school year 2007-08. However, based on Ms. Short’s failure to notify Mr. Short of the enrollment of the children in Kehoe-France school on the North Shore in advance, the trial court limited Mr. Short’s obligation for the children’s tuition and other expenses to Mr. Short’s proportionate share of the tuition of St. Christopher School in Metairie.

Mr. Short filed a motion for partial new trial on the issue of private school expenses. The trial court granted that motion in part and altered Mr. Short’s obligation to exclude the youngest child, Amanda, who was not yet in Kindergarten. At the time, Anthony and Sarah were in first grade and Kindergarten, respectively.

After the trial judge originally ruled that Mr. Short was responsible for his proportionate share of the tuition of St. [409]*409Christopher School, Mr. Short filed an | -,objection to Ms. Short’s enrolling the children in Kehoe-France for the following 2008-09 school year. This objection addressed itself to where the children were to attend school, not to who would pay the tuition. That motion was heard on August 4, 2008. In open court, after hearing testimony, the trial judge denied the motion. Although Mr. Short originally appealed the tuition ruling, at that time the later ruling pertaining to the school the children would attend rather than tuition responsibility was not reduced to writing until August 18, 2010, after the Louisiana Supreme Court denied writs in the former appeal. Short, 10-1086 (La.9/3/10), 44 So.3d 688. In that later written ruling, the trial judge denied Mr. Short’s opposition to the children attending Kehoe-France for the 2008-09 school year. Mr. Short has not appealed that judgment. In addition, that judgment was not before us in the former appeal. Thus, the former appeal addressed only whether Mr. Short should pay his pro rata share of the tuition cost, not where the children would attend school.

In our previous opinion, we found an abuse of discretion in the ruling ordering Mr. Short to pay his proportionate share of tuition at Kehoe-France using the tuition at St. Christopher School as a base. We vacated that judgment and remanded the matter to the trial court for a finding on tuition that was consistent with the law. Short, 09-639 at 14, 33 So.3d at 996.

On remand, the trial court did not receive additional evidence or testimony. The trial judge ruled that Mr. Short was not liable for a pro rata share of private school tuition. At the time of our remand order, there was only one hearing concerning tuition — March 18, 2008. In contrast, the August 4, 2008 hearing concerned Mr. Short’s objection to the choice of school for the following year.

| ⅛Analysis

Covenant Marriage Judgment

Mr. Short argues that Ms. Short is barred from challenging the Covenant Marriage judgment based on the “law of the case” principle4 because Ms. Short raised it in her answer to the former appeal, and we addressed the issue.

That argument fails for two reasons.

First, we made no ruling on the merits regarding the validity of the Covenant Marriage. We declined to consider the issue because our jurisdiction was restricted to the two judgments on appeal, neither of which contained a ruling on the Covenant Marriage. Short, 09-639 at 7, 33 So.3d at 992.

Second, going beyond the narrow issue of whether Ms. Short’s answer was properly before the Court, we added a statement that the Covenant Marriage judgment was final. Short, 09-639 at 7, 33 So.3d at 992. Our statement that the judgment was final was obiter dictum and therefore did not constitute “law of the case.”5 Because obiter dictum is, by definition, not essential to the judgment of the court which states the dictum, it is not the “law of the case.”

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Cite This Page — Counsel Stack

Bluebook (online)
77 So. 3d 405, 2011 La. App. LEXIS 1247, 2011 WL 5061362, Counsel Stack Legal Research, https://law.counselstack.com/opinion/short-v-short-lactapp-2011.