Judgment rendered October 2, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,879-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SYBIL MARTIN KELLEY Plaintiff-Appellee
versus
SHELBY D. KELLEY Defendant-Appellant
Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 62,795
Honorable Thomas W. Rogers, Judge
PLEASANT & WILLIAMS, Counsel for Appellant THE BARRISTERS’ LAW GROUP, LLC By: Kristen B. Pleasant
OFFICE OF W. KYLE GREEN, LLC Counsel for Appellee By: W. Kyle Green Rebekah H. Wade
Before STONE, STEPHENS, and ELLENDER, JJ.
STONE, J., dissenting in part. ELLENDER, J.
Shelby Kelley appeals a judgment ordering him to pay his ex-wife,
Sybil Kelley, interim spousal support of $6,573.99 a month, retroactive to
date of judicial demand. For the reasons expressed, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Shelby and Sybil got married on October 18, 2006, in Lincoln Parish.
They had no children together. They physically separated on December 28,
2022, and Sybil filed this petition for Art. 102 and 103.1 divorce in January
2023. She included an ancillary claim for interim spousal support, together
with claims not germane to the appeal, but her allegations of fault, and
details of the eventual partition of community property, were deeply
interwoven into the hearing on the rule for interim spousal support.
At that hearing, Shelby testified that he had been a certified water
operator (person licensed to run rural water and wastewater facilities) and
running his own company, Kelley Waterworks (“KWW”), since the 1990s.
Sybil, however, testified that, prior to their marriage, he was an employee of
Lincoln Parish Greater Ward One, and she worked at Tool City; it was only
after they got married that they both quit their jobs and formed KWW. (In
support, she offered an exhibit showing KWW applied for a federal
employee identification number in April 2010.) They never formed a
corporation or LLC but, during the marriage, they worked together running
KWW, and Sybil eventually obtained her own water certification. They secured contracts to run nine water systems in the area.1 For the tax year
2022, KWW reported income of $269,667 and business expenses of
$56,772.
After the separation, Shelby continued to run KWW, but Sybil’s
association with it was terminated. She took a part-time job at her son-in-
law’s auto parts store, making $2,400 a month.
Each side filed an affidavit of monthly income and expenses full of
items that were contested at the hearing. Sybil declared a gross monthly
income of $2,400, and net of $1,918. She claimed monthly expenses of
$9,791.99, for a deficit of $7,873.99. Unfortunately, much of Shelby’s
cross-examination of Sybil focused on matters related to community
property and the poor condition of her house.2 The court, however, asked
pointed questions about many of her claimed monthly expenses, such as
pool maintenance, $600; lawn care, $400; gas and electricity, $700; vitamins
and supplies, $200; gifts, $300; birthday presents, $100; and medical
expenses, $46,000 total. She admitted her actual medical debt was between
$8,000 and $9,000, and she was not currently making any payments on this.
The district court accepted Sybil’s stated income as “uncontradicted”
but reduced her pool maintenance to $100, lawn care to $200, and deleted
gifts, finding reasonable monthly expenses of $8,491.99. This left a deficit
of $6,573.99.
1 These were, in chronological order, Town of Dubach, Hill-Greenwood, Sand Hill-Mt. Olive Water, Darbonne Water System, Hico Water System, Jeld-Wen Inc., Tri Water System, Town of Bernice, and Ardagh Group. 2 Sybil is living in the former marital home, on Hwy. 167, south of Ruston. There was prolonged testimony describing, and a stack of photos depicting, the state of this house. Shelby is now living in the couple’s camp house on Lake Claiborne, near Homer. 2 Shelby declared a net monthly income of $14,438 and net monthly
expenses of $15,345.90, claiming a deficit of $997.90.3 Both Sybil and the
court seriously contested many items on his affidavit. Sybil offered an
exhibit, P-5, showing that his 2022 income was $263,747, but projecting that
his 2023 income was higher, $310,064. Shelby insisted that this increase
was because of “extra work,” and he wanted to count only the “guaranteed”
contract amounts from the various water systems.
As for Shelby’s claimed expenses, Sybil disputed that he was still
tithing $600 a month. She got him to admit, on cross-examination, that the
Town of Bernice gave him a credit card for gasoline, yet he was claiming
$2,171 a month for fuel. She also got him to admit that he was being
reimbursed for health insurance, yet he claimed $610 a month.
The court was extremely skeptical about many of Shelby’s claimed
expenses, particularly the vehicle expense of $83,587, which appeared to
duplicate expenses of gasoline, insurance, depreciation, car washes, etc., that
were already claimed individually. The court asked Shelby if he really
drove 148,000 miles a year, perhaps 400 miles a day; Shelby maintained this
was possible, as he worked 12-16 hours a day, seven days a week. The court
questioned his claim of $46,000 in medical expenses; Shelby admitted these
had accrued over two years, and he was unsure why his tax preparer
declared them all in one year. The court also questioned the depreciation on
a motor home that Shelby admitted he sold in 2021 and on a car that was in
Sybil’s exclusive possession. Shelby responded that he did not understand
3 By our calculation, the difference is actually only $907.90. 3 the tax and accounting matters, but he stood by the expenses claimed in his
affidavit.
The district court started with Shelby’s 2022 tax return, showing gross
income of $263,747, and found that two of KWW’s clients (Town of
Bernice and Ardagh Group) had committed to pay increases for 2023; the
court “estimated” his 2023 income at $275,000. Addressing Shelby’s fixed
claims, the court found his mileage claim, averaging 391 miles a day, 7 days
a week, was “not credible” and was also “duplicative when insurance,
gasoline, repairs and depreciation are also claimed in other portions of the
return.” The court therefore disallowed the car and truck expenses of
$83,587. It also found the claims of insurance, $1,680; deductible meals,
$3,796; and utilities, $5,963, were “questionable as duplicative” and rejected
them. It rejected depreciation of $85,248 because the assets were either
completely depreciated or no longer in use in the business.
Turning to the monthly expenses, the court accepted the business
expenses claimed on the tax return, $56,772, and contract labor of $21,600.
Other claimed expenses – two auto loans, gasoline, insurance, and tools –
were already included as fixed expenses, so the court rejected them. It also
found “no credible evidence” to support the claims of tithes and a household
maid.
ACTION OF THE DISTRICT COURT
The court reduced Shelby’s claimed expenses from $15,345.90 to
$8,693.81, leaving him $7,691.85 from which to pay spousal support, an
adequate amount to cover Sybil’s needs of $6,573.99. It rendered judgment
awarding her this amount, retroactive to date of judicial demand, January 4,
4 2023. The judgment is silent as to the 180-limit for such an award, under
La. C.C. art. 113 (A).
Shelby filed a motion for new trial, which the court denied, stating,
“A lot of what Mr. Kelley claimed, I just didn’t find credible.” Shelby has
appealed, raising five assignments of error.
APPLICABLE LAW
In a proceeding for divorce or thereafter, the court may award interim
periodic support to a party who is in need of support and who is free from
fault prior to the filing of a proceeding to terminate the marriage. La. C.C.
art. 111. The court may award a party interim spousal support based on the
needs of that party, the ability of the other party to pay, and the standard of
living of the parties during the marriage. La. C.C. art. 113 (A). An award of
interim spousal support terminates 180 days from the rendition of a
judgment of divorce; it may be extended, but only for good cause shown. Id.
The purpose of interim spousal support is to maintain the status quo
without unnecessary economic dislocation until a final determination of
support can be made and until a period of adjustment elapses, capped at 180
days after the judgment of divorce. Ashley v. Ashley, 54,133 (La. App. 2
Cir. 3/9/22), 335 So. 3d 468, and citations therein. A spouse’s right to claim
interim periodic support is grounded in the statutory duty of spouses to
support each other during marriage and thus provides for the spouse who
does not have sufficient income for his or her maintenance during the period
of separation. Id. The needs of the claimant spouse have been defined as
the total amount sufficient to maintain her in a standard of living comparable
to that enjoyed by her prior to the separation, limited only by the payor
spouse’s ability to pay. Id. 5 The trial court is afforded much discretion in determining an award of
interim spousal support, and such an award will not be disturbed absent a
clear abuse of discretion. Id.; Welch v. Welch, 51,566 (La. App. 2 Cir.
8/9/17), 244 So. 3d 581. An abuse of discretion will not be found if the
record supports the court’s conclusions about the needs of the claimant
spouse or the means of the payor spouse and his or her ability to pay. Id.;
Rockett v. Rockett, 51,453 (La. App. 2 Cir. 6/21/17), 223 So. 3d 1227.
Domestic relations issues, such as the determination of entitlement to
spousal support, largely turn on evaluations of witness credibility. Id.; King
v. King, 48,881 (La. App. 2 Cir. 2/26/14), 136 So. 3d 941. The factfinder
has the discretion to accept or reject, in whole or in part, the testimony of
any witness. Id. Reasonable evaluations of credibility will not be disturbed
on appeal. Hayes Fund for First United Methodist Church of Welch v. Kerr-
McGee Rocky Mtn. LLC, 14-2592 (La. 12/8/15), 193 So. 3d 1110.
DISCUSSION
Assignments 1 & 2: Sybil’s Income
By his first assignment of error, Shelby urges the court erred when it
awarded Sybil $6,573.99 per month in interim spousal support. He contends
Sybil offered “no evidence” to justify the amount awarded, other than her
affidavit, and her own testimony contradicted much of her affidavit (as to
her claimed expenses). By his second assignment, he urges the court erred
when it failed to impute income to her and find her voluntarily unemployed.
He contends the standard is the ability to earn a sufficient income and shows
that Sybil holds the same certification as he does; citing his own testimony
that she “refused to accept a potential contract” with Sand Hill, he submits
the court should have imputed just as much income to her as to him. 6 As noted, Sybil filed an affidavit of average monthly income and
expenses stating her gross income was $2,400 and her net $1,918; at the
hearing, she testified that her gross was $2,400. Shelby offered no evidence
to contradict this. While some form of documentation, such as pay stubs or
employer statements, is useful, Shelby objected to neither the affidavit nor
her testimony. In such a situation, the court is within its discretion to accept
the party’s testimony. Stowe v. Stowe, 49,496 (La. App. 2 Cir. 3/4/15), 162
So. 3d 638. We find no abuse of discretion.
Regarding the imputed income, we note that Shelby raised this
argument neither in any pleadings nor in argument to the district court.
Normally, an argument raised for the first time on appeal will not be
considered. Segura v. Frank, 93-1271 (La. 1/14/94), 630 So. 2d 714; Burch
v. Burch, 51,780 (La. App. 2 Cir. 1/10/18), 245 So. 3d 1138. Even so, the
record does not support the argument. Shelby testified that he left Sand Hill-
Mt. Olive Water “for a short period then came back,” he “offered it to
[Sybil] and her daughter,” and he had no idea why they did not take it.
Obviously, this does not constitute an offer from a water system and does
not show that Sybil declined any available work. Given KWW’s apparent
saturation of the local market, the court could have reasonably found
comparable opportunities were not available for Sybil to start her own
business, particularly during the limited time period of interim spousal
support. We find no abuse of discretion.
These assignments of error lack merit.
Assignment 3: Sybil’s Expenses
By his third assignment, Shelby urges the court erred when it
determined that Sybil had a need for interim support. He reiterates that she 7 did not produce evidence of her $2,400 a month income – a claim already
addressed and rejected in the preceding discussion. He then catalogs various
items from Sybil’s expenses and argues the district court should have
discounted or disallowed them altogether. Sybil responds that the court’s
findings on all these items were within its discretion.
We have considered them individually.
Homeowners’ insurance, $488 a month. Shelby contends Sybil
failed to produce a statement verifying that she was paying this amount for
insurance on a home that was in poor condition. While the record does not
include a statement, Sybil testified that her policy covered not only the
house, but two shops, and she got her agent to reduce coverage on the
outbuildings to bring the premium down from about $600. Notably, Shelby
claimed to have no idea how much the insurance was, even though he
previously lived on the property, and he admitted the house had sustained
some tornado damage that the insurance had covered. Although a statement
from the insurer would have been preferable, on this record the court was
entitled to find that Sybil was paying homeowners’ insurance and that the
claimed premium of $488 was reasonable.
Pool maintenance, $100 a month. Shelby concedes that Sybil
claimed $600 a month for this, and the court reduced it to $100; however, by
Sybil’s own admission, they always serviced the pool themselves, so he
argues this item should have been disallowed entirely. Sybil testified she
had no idea how much chlorine was going to cost, because Shelby had
always bought the supplies. As with the homeowners’ insurance, some
documentation of pool expenses would have been helpful, but we cannot say
that $100 per month, for the duration of interim support, is unreasonable. 8 Lawn care, $200 a month. As with pool maintenance, Shelby asserts
the inclusion of this item was erroneous in that the couple had always taken
care of the lawn themselves, and Sybil offered no documentation of the cost
of lawn care or medical records or doctors’ notes to show that her health
would prevent her from mowing the property herself. However, Sybil
testified that the house sat on 22 acres, she had done the lawn until she got
sick, but with her high blood pressure she could no longer handle the heat.
She also testified that she had secured someone to cut the grass but had not
paid him yet because she did not yet have the money to do so. Shelby
confirmed that the couple used to do the lawn together, but Sybil’s nephew
had to help occasionally. Neither side disputed that maintaining the lawn
was essential upkeep. On this record, we cannot say that $200 per month,
for the duration of interim support, is unreasonable.
Medical bills, $700 a month. Shelby contends that Sybil admitted
she was not actually paying anything on her medical bills, and, in fact, she
had written them off on her 2022 income tax return. Notably, Shelby did not
dispute that she had incurred significant medical bills. Sybil testified that
she had medical collection expenses for emergency room visits for high
blood pressure, these came to $8,000 or $9,000, she had been paying one
judgment at the rate of $300 to $500 a month, depending on what she could
afford that month, and she was not paying the others because she had never
received any distribution from KWW.
Bearing in mind that interim spousal support is based on the standard
of living of the parties during marriage, we find no abuse of the court’s
discretion in accepting $700 as an expense to pay off medical bills. We also
note that, aside from Shelby’s argument, there was no proof that claiming a 9 debt as a “write off” for income tax purposes extinguishes the obligation to
the creditor.
Gas (butane), $350 a month, and electricity, $400 a month. Shelby
argues “it is not possible for her to pay” these amounts, as she admitted her
last gas bill was only $199. He suggests a total utility bill of $350 a month
would be more reasonable. However, Sybil testified that the property has
three Claiborne Electric meters: house, horse barn, and motor home and
swimming pool – the latter usually costing more than the one for the house.
She testified that she thought her last O’Neal Gas bill, on an autopay plan,
was $199 (trial was held in May), and that the generator, if needed, also ran
on butane. On this record, the district court did not abuse its vast discretion
in approving these expenses as reasonable utilities.
Health insurance, $1,722 a month. Shelby contends Sybil offered
no proof to support this amount for health, cancer, eye, and dental insurance
premiums. He cites his own testimony that he was paying $610 a month for
insurance, which would have covered her until the divorce was granted.
Here, as elsewhere, documentation would have been preferable.
However, Shelby testified he was getting a $1,000 reimbursement from the
Town of Bernice for health insurance, and his affidavit stated he was also
paying $610 a month out of pocket for a policy that would keep Sybil
covered until the date of divorce. Obviously, after the divorce she would
have to buy her own policy. In light of Shelby’s $1,000 allotment from
Bernice plus the $610 he was paying out of pocket, Sybil’s claimed total of
$1,722 is by no means unreasonable.
Vehicle insurance, $242 a month. Shelby cites his own testimony
that he was paying all community debts and insurance on the vehicles, motor 10 home, and boat; hence, the court should have disallowed this claim. On
cross, however, when asked who paid insurance on the brown Dodge used
by Sybil, he candidly admitted, “I assume she does.” On this ambivalent
testimony, the court was within its discretion to accept the claimed charge.
Tools, $200 a month. Shelby concedes that Sybil bought some hand
tools – a cordless string trimmer and a hand chainsaw – for maintenance
around the home, but contends this was a one-time purchase, not a recurring
expense. He argues this expense should have been disallowed.
Contrary to Shelby’s contention, the district court questioned “tools”
as a valid expense and, ultimately, rejected it as “not credible” or “not
supported” by the evidence, both in its written reasons for judgment and in
oral reasons denying a new trial. Considering that the court excluded this
item, any claim that the court erred in including it lacks merit.
Postage, $50 a month. Shelby argues the court erred in allowing this
expense; although Sybil listed it, she testified that her monthly postage was
“probably not $50 worth.”
On close review, we find that the court never mentioned postage,
either in its written reasons for judgment or in oral reasons denying a new
trial. The court’s silence as to this issue or claim must be deemed a rejection
thereof. M.J. Farms Ltd. v. Exxon Mobil Corp., 07-2371 (La. 7/1/08), 998
So. 2d 16; Bradley v. St. Francis Med. Ctr., 51,572 (La. App. 2 Cir.
9/27/17), 244 So. 3d 722. On this record, we cannot find that the court
included this charge in figuring Sybil’s expenses. The argument that the
court erred in failing to exclude it lacks merit.
Sybil’s bad faith. Finally, in a wide-ranging argument, Shelby urges
Sybil was “in bad faith and does not have unclean [sic] hands.” He argues 11 that she was the one who supplied all the information to the tax preparer, and
she should be held to all the representations she made to Internal Revenue;
all her claimed expenses were “grossly overinflated”; and she was
improperly trying to appropriate one-half the profits of KWW.
The district court was charged with finding the needs of the claiming
party and the standard of living of the parties prior to the divorce. La. C.C.
art. 113 (A). That court was in the superior position to assess the credibility
of the parties, including any motivations that may have led them to deviate
from total honesty. Ultimately, it found that Sybil was in a precarious
position after the divorce. It applied some downward adjustments to her
claimed expenses but found most of her claims credible and reasonable. We
find no abuse of the court’s vast discretion. This assignment lacks merit.
Assignment 4: Shelby’s Ability to Pay
By his fourth assignment, Shelby urges the court erred when it
determined he had the ability to pay interim spousal support. He argues that
his guaranteed monthly income is only $14,438, and anything more than that
is pure speculation. He contends the court erred in accepting and utilizing
Exhibit P-5, which projected his 2023 income but did not state any basis for
its higher estimates. Regarding his expenses, he argues the court improperly
disregarded his $83,587 in mileage, as this is an “ordinary and necessary
expense required to produce income,” citing Mayo v. Crazovich, 621 So. 2d
120 (La. App. 2 Cir. 1993); his claim for $1,685 in auto insurance; and car
note of $700 a month for a Buick he recently bought and uses to “make
rounds” and “save on gas and diesel.” He asserts the court abused its
discretion in finding this car was a gift for Ms. Austin.
12 Sybil responds that the court carefully and correctly analyzed each of
these claims and, though it disallowed them, it properly accepted other
expenses of $56,772, plus contract labor of $21,600. As a result, she
submits, Shelby has a monthly income of $16,385, which is adequate to
cover Sybil’s proven need of $6,573.99 for interim spousal support.
We address each item separately.
Shelby’s income. As noted, KWW’s 2022 tax return showed gross
receipts of $263,747 and expenses of $56,772. On cross-examination,
Shelby admitted that one contract, with Ardagh Group, would increase from
$7,300 in 2022 to $21,900 in 2023, an increase of $14,600; another, the
Town of Bernice, had already given him extra payments of $5,800 over the
first two months of 2023. These two pay increases alone would raise
KWW’s receipts to $284,147. Although he argued repeatedly that these
increases were not “guaranteed,” there was no evidence that either one had
been withdrawn. On this record, the court was entirely within its discretion
to set Shelby’s 2023 income at $275,000.
Car and truck expenses, $83,587. Shelby asserts this is the amount
that Sybil supplied to the tax preparer as one of KWW’s ordinary business
expenses, and the court should have accepted it. However, on the 2022 tax
return, Shelby declared that KWW’s business expenses were $56,772.
There was no explanation how he could claim both his actual expenses of
operating a vehicle, including depreciation, and the standard mileage rate.
We perceive no manifest error in accepting the declared business expense.
Moreover, the district court seriously questioned the claimed mileage.
The court finally calculated that this would amount to driving 142,882 miles
a year, or 391 miles per day seven days a week, which the court considered 13 not a credible claim. Shelby testified that he spent some $65 to $70 a day on
diesel fuel, and then admitted, “We charge for mileage,” further calling into
question how much of this expense is valid. On this record, we simply
cannot say the court abused its discretion in disallowing this claim.
Auto insurance, $1,685. Shelby argues the court improperly denied
this as a duplicate claim. He asserts this was the premium on a personal
policy covering community vehicles, including the Dodge, on which he was
paying the monthly note and insurance but which was in Sybil’s exclusive
possession. However, Sybil’s affidavit showed that she was paying $242 a
month for this coverage, and Shelby candidly “assumed” she was paying for
insurance on the Dodge. Moreover, he admitted that he was treating the
other vehicles as business vehicles, for which he was claiming depreciation.
The court found that this coverage was already included in Shelby’s claim
for commercial auto insurance, a total of $3,455. In short, there is sufficient
evidence for the court to treat this claim as duplicative.
Car note on Buick, $700. Shelby contends he bought this car, which
he uses to save on gas and diesel, as well as to “make rounds.” He disputes
Sybil’s testimony that he bought it as a gift for his friend, Ms. Austin.
However, this item was not included in Shelby’s affidavit of income and
expenses and, in questioning by the court, he admitted that Ms. Austin
previously used the car two or three days a week and, currently, seven days a
week. Unlike the parties, we will not indulge the long and at times
recriminating testimony about the exact nature of Shelby’s relationship with
Ms. Austin. On the strength of his affidavit and testimony, however, we find
a more than adequate basis for the court to disallow this claim.
This assignment of error lacks merit. 14 Assignment 5: Motion for New Trial
By his final assignment of error, Shelby urges the district court erred
in denying his motion for new trial on the basis that the judgment was
contrary to the evidence. He submits he has shown “several discrepancies”
between the court’s ruling, the evidence adduced, and the testimony. He
concludes this meets the requirements of La. C.C.P. art. 1972. He asks this
court to reverse the judgment and deny interim spousal support.
A new trial shall be granted, upon contradictory motion of any party,
when the verdict or judgment appears clearly contrary to the law and the
evidence. La. C.C.P. art. 1972 (1). A new trial may be granted if there is
good ground therefor. La. C.C.P. art. 1973. The standard of review of a
ruling on the motion for new trial is abuse of discretion. Pitts v. La. Med.
Mut. Ins. Co., 16-1232 (La. 3/15/17), 218 So. 3d 58.
Because we have determined that none of the assigned errors has
merit, and the judgment does not appear clearly contrary to the law and the
evidence, we find no abuse of the district court’s discretion in denying a new
trial. Criswell v. Kelley, 54,188 (La. App. 2 Cir. 3/9/22), 335 So. 3d 483.
This assignment lacks merit.
We note, however, that any award of interim spousal support “shall
terminate” 180 days from the rendition of the judgment of divorce, unless
the obligee can show good cause for an extension. La. C.C. art. 113 (A).
The Kelleys’ divorce was rendered August 28, 2023, so interim spousal
support should have terminated February 24, 2024. Any support after that
date will require a separate demand and proof, neither of which is present in
15 the instant record. We decline to address any potential support after the
statutory date of termination.
CONCLUSION
For the reasons expressed, the judgment is affirmed. All costs are to
be paid by Shelby D. Kelley.
AFFIRMED.
16 STONE, J., dissenting in part
I respectfully dissent regarding the amounts of several of Sybil’s
expenses allowed by the trial court.
Sybil has the burden of proving her expenses, and several of her
claimed expenses lack prima facie proof. Many of her claimed expenses are
apparently quite inflated. Worse yet, none were supported by receipts,
invoices, bank statements, or credit card statements—despite being the type
of expenses for which at least one of the foregoing types of documentary
evidence is virtually always available. Are we to believe that Sybil paid
cash and received no receipt or invoice for any of these expenses, yet was
able to credibly testify regarding the specific amounts of such expenses?
The trial court abused its discretion in awarding Sybil such high amounts for
certain expense items.
Sessions & Fishman v. Liquid Air Corp., 616 So. 2d 1254, 1258 (La.
1993) holds that documentary evidence is required for prima facie proof of
an “open account” under La. R.S. 9:2781. Mere testimony—even if
uncontroverted—is insufficient:
In this context, the affidavit of correctness refers to the validity of the account, i.e. the “correctness” of the sum due. This provision does away with the necessity of taking testimony in order to establish the validity of the account. The existence of the claim, however, is supported by a statement of the account or invoices. Thus, in order to establish both the existence and the validity of a demand for a sum due on an open account, it is necessary for a plaintiff to present evidence of the account itself and an affidavit, or testimony, attesting to its correctness.
It is true that La. R.S. 9:2781 and Sessions & Fishman, supra, address
claims by the creditor on an open account, which is not involved here.
However, the evidentiary requirement of documentary proof is somewhat
1 analogous. We do not have great reason to doubt that Sybil paid something
for these necessary expenses; rather, it is her proof of the specific amounts
that is deficient. Sybil’s claimed expenses—i.e., debts—are of the same
nature as those addressed by La. R.S. 9:2781 and should likewise be subject
to the requirement of documentary evidence such as receipts, invoices, bank
statements, or credit card statements.
The trial court abused its discretion in accepting Sybil’s claims of the
following monthly expenses: (1) $488 for homeowner’s insurance (with no
premium notice or proof of payment adduced); (2) $350 for gas (with no
invoice or proof of payment adduced); (3) $400 for electricity (with no
invoice or proof of payment adduced); and (4) $1722 for health, eye, cancer,
and dental insurance (with no premium notice or proof of payment adduced).
We must reduce these awards to the highest amount that is not an abuse of
discretion; a 25% reduction seems in order. Also, the grooming/personal
items expenses should be reduced from $200 to $50.
For these reasons, I dissent in part.