Wiley v. Wiley

58 So. 3d 1104, 10 La.App. 3 Cir. 1306, 2011 La. App. LEXIS 292, 2011 WL 832499
CourtLouisiana Court of Appeal
DecidedMarch 9, 2011
DocketNo. 10-1306
StatusPublished
Cited by1 cases

This text of 58 So. 3d 1104 (Wiley v. Wiley) 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
Wiley v. Wiley, 58 So. 3d 1104, 10 La.App. 3 Cir. 1306, 2011 La. App. LEXIS 292, 2011 WL 832499 (La. Ct. App. 2011).

Opinion

SAUNDERS, Judge.

| |This is a case involving final spousal support. The trial court awarded the wife $200.00 per month in final spousal support under La.Civ.Code Art. 112. The wife appealed contending error by the trial court in fixing that amount and in crediting the husband for voluntary payments made to the wife under La.R.S. 9:321(D). We affirm.

FACTS AND PROCEDURAL HISTORY:

Leota Gail Wiley (Gail) and J. Marc Wiley (Marc) were married on October 3, 1969. The couple acquired substantial assets during their marriage. Gail and Marc physically separated on or about October 27, 2006.

Marc filed a petition for divorce on December 20, 2006, and the parties were divorced by judgment dated August 3, 2007. The judgment of divorce also provided that the community of acquets and gains terminated effective December 20, 2006. Gail judicially demanded final support from Marc on July 31,2009.

The parties partitioned some community assets prior to the trial on final support that is the subject of this appeal. Gail received $213,304.00 as her share of the proceeds in the sale of their marital home. Marc and Gail also divided two financial accounts at Smith Barney in May of 2008. The division of these accounts resulted in Gail receiving $269,511.00. Gail also received $45,498.00 from May of 2007 through January of 2008 as her share of payments received by Marc from the sale [1106]*1106of a community owned business. Further, on May 19, 2010, the day of trial, Gail received $158,529.00 from Marc as her share of Marc’s 401(k), $12,497.00 as her share of Marc’s IRA, and $40,000.00 for payment of Gail’s net interest in a rental home owned by the couple. Finally, Marc voluntarily paid support to Gail totaling approximately $100,000.00 prior to the trial regarding final support on May 19, 2010.

l2After the May 19, 2010 trial, the trial court rendered a ruling and judgment on final spousal support on June 16, 2010. In that judgment, the trial court awarded Gail $200.00 in monthly, final spousal support. Thereafter, on June 21, 2010, the trial court rendered an addendum to the June 16, 2010 judgment. In the addendum, the trial court stated that pursuant to La.R. S. 9:321(D) Marc was entitled to receive credit for voluntary support payments made to Gail from July 31, 2009, the date of judicial demand for final support, to the date Marc ceased making voluntary payments to Gail in January 2010. Gail has appealed both the June 16, 2010 judgment and its addendum dated June 21, 2010.

ISSUES PRESENTED FOR REVIEW:

1. Has the Lower Court manifestly erred after having found Gail is entitled to final support, but fixing same at a nominal figure which is inadequate for the support and maintenance of said party?
2. Has the Lower Court manifestly erred in drawing upon its speculation as to present and future health, earning capacity, and financial means of Gail herein after expert medical testimony established otherwise?
3. Has the Lower Court clearly and manifestly erred in not considering the time which may be necessary for the claimant (Gail) to acquire appropriate education, training, or employment should she possibly be considered employable?
4.Has the Lower Court manifestly erred in granting Appellee relief which was not sought, prayed for, or pleadings expanded to include? i.e. Lower Court granting retroactive relief to Appellee by allowing full credit for payments made to Gail prior to final support being sought.

ISSUE PRESENTED FOR REVIEW NUMBER ONE:

Gail fails to list specific assignments of error in brief. Rather, she lists the four issues presented for review above and proceeds to address each under the same heading. The first issue she raises is that the trial court was manifestly erroneous in fixing her final support at $200.00 monthly. We do not agree.

IsThe standard of review applicable in reviewing an award of final support is “three-tiered.” Baggett v. Baggett, 96-453, p. 4 (La.App. 3 Cir. 4/23/97), 693 So.2d 264, 266.

First, we must determine whether the trial judge correctly applied the proper legal standard or standards. We do not defer to the discretion or judgment of the trial judge on issues of law. Second, we must examine the trial judge’s findings of fact. We will not overturn the trial judge’s factual determinations unless, in light of the record taken as a whole, they are manifestly erroneous (or clearly wrong). Third, we must examine the propriety of the alimony[, i.e., final support,] award. If it is within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge’s great discretion to set such awards.

[1107]*1107Davy v. Davy, 469 So.2d 481, 482 (La.App. 3 Cir.1986) (parenthetical in original).

Gail’s first issue presented for review questions the appropriateness of the amount of final support as set by the trial court. Thus, if the amount set by the trial court, $200.00 per month, “is within legal limits and based on facts supported by the record, we will not alter the amount of the award in the absence of an abuse of the trial judge’s great discretion to set such awards.” Id.

The factors that a court is to consider when setting an amount for final spousal support are delineated in La.Civ.Code art. 112(B). Louisiana Civil Code Article 112 states:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
|4(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C.The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

In the case before us, the trial court found that Gail was entitled to $200.00 per month in final spousal support. It reached this determination after making a thorough review of the testimony and exhibits before it as evidenced by the ruling and judgment on final spousal support located in the record.

First, the trial court found that Gail had monthly expenses totaling $3,566.65. Gail argues that this figure is erroneous, as the trial court failed to consider the rise in her future health care expenses when it reached this total. We find no credence in this argument.

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Bluebook (online)
58 So. 3d 1104, 10 La.App. 3 Cir. 1306, 2011 La. App. LEXIS 292, 2011 WL 832499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiley-v-wiley-lactapp-2011.