Jack H. Shannon v. Julia Westrich Shannon

CORRECTED COPY

JACK H. SHANNON * NO. 2024-CA-0140

VERSUS *
COURT OF APPEAL
JULIA WESTRICH SHANNON *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

CONSOLIDATED WITH: CONSOLIDATED WITH:

JACK H. SHANNON NO. 2024-CA-0219

VERSUS

JULIA WESTRICH SHANNON

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2005-13100, DIVISION “H”
Honorable Jane E. Booth, Judge Pro Tempore
******
Judge Paula A. Brown
******
(Court composed of Judge Sandra Cabrina Jenkins, Judge Paula A. Brown, Judge
Karen K. Herman)

Mitchell J. Hoffman
HOFFMAN NGUYEN & KUEHL
643 Magazine Street, Suite 401
New Orleans, LA 70130

Elizabeth K. Fox
Fox Law Firm, LLC
23422 Cypress Cove
Springfield, LA 70462

COUNSEL FOR PLAINTIFF/APPELLEE

CORRECTED COPY

Christy M. Howley
M. Elizabeth Bowman
Jordan T. Giles
BOWMAN & HOWLEY
629 Lafayette Street
Gretna, LA 70053

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
OCTOBER 25, 2024

PAB
SCJ
KKH

This appeal involves termination of spousal support. Appellant, Julia

Westrich Shannon (“Ms. Shannon”), seeks to appeal the district court’s March 31,

2023 judgment, which denied Ms. Shannon’s peremptory exceptions, terminated

spousal support between the parties, and ordered Ms. Shannon to reimburse

Appellee, Jack Shannon (“Mr. Shannon”), for spousal support payments

retroactive to the date of judicial demand. For the reasons that follow, we affirm

the district court’s judgment.

FACTS AND PROCEDURAL HISTORY

On September 10, 1993, Ms. Shannon and Mr. Shannon married in Denver,

Colorado. On December 9, 2005, Mr. Shannon filed for divorce,1 which was

subsequently granted on September 8, 2006. The parties executed two consent

1 Mr. Shannon sought a divorce pursuant to La. C.C. art. 102, which provides:

Except in the case of a covenant marriage, a divorce shall be granted upon motion of a
spouse when either spouse has filed a petition for divorce and upon proof that the
requisite period of time, in accordance with Article 103.1, has elapsed from the service of
the petition, or from the execution of written waiver of the service, and that the spouses
have lived separate and apart continuously for at least the requisite period of time, in
accordance with Article 103.1, prior to the filing of the rule to show cause.

The motion shall be a rule to show cause filed after all such delays have elapsed.

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judgments on February 11, 2013—one regarding partition of community property

and one regarding spousal support. The Consent Judgment Regarding Spousal

Support (the “consent judgment”) provided the following pertinent provisions:

IT IS ORDERED, ADJUDGED AND DECREED that,
thereafter, beginning March 1, 2013, Jack Shannon will pay
rehabilitative spousal support in the amount of $4,400 per month to
Julia Westrich Shannon for a period of ten (10) years, ending on
February 28, 2023.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that Jack Shannon will pay $5,400 in rehabilitative spousal support to
Julia Westrich Shannon beginning March 1, 2023 until she reaches the
age of 80 years old on August 28, 2034.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the above-mentioned support payments are not subject to
increase, decrease or termination for any reason whatsoever, other
than the death of Jack Shannon or Julia Westrich Shannon, or as set
out below.

* * *

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the above-mentioned spousal support and other payments shall
not terminate upon the occurrence of Julia Westrich Shannon co-
habiting with another man or her remarriage. These payments are only
subject to termination upon the death of either party, or if Julia
Westrich Shannon should inherit, be gifted, or in any other manner
receive a sum of money equal to or in excess of $1,000,000 from any
third party other than Jack Shannon within a two year period.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that other than the rehabilitative spousal support payments set out
above, there will be no further support obligation owed to Julia
Westrich Shannon by Jack Shannon.

Over seven years later, on July 17, 2020, Mr. Shannon filed a motion to

modify and/or terminate spousal support (“original motion to modify”) based on an

allegation of a material change in his circumstances since rendition of the consent

judgment. Specifically, Mr. Shannon alleged that he had been diagnosed with

Parkinson’s disease, which both increased his medical and household expenses and

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forced him to retire. Additionally, Mr. Shannon alleged that Ms. Shannon had

commenced living with another man in the manner of married persons and was

benefitting financially from that relationship. In response, on September 4, 2020,

Ms. Shannon filed peremptory exceptions of no cause of action and res judicata,

which were both later denied on October 7, 2020. On December 3, 2020, Ms.

Shannon filed a motion for summary judgment, which was met with Mr.

Shannon’s cross motion for summary judgment twenty days later. The motion for

summary judgment and cross motion for summary judgment came for hearing on

April 28, 2021. Following, the district court issued a judgment on June 8, 2021,

granting Ms. Shannon’s motion and declaring the consent judgment to be valid and

enforceable according to its terms, with the clarification that “the provision of the

[c]onsent [j]udgment relating to the receipt by Ms. Shannon of [$1,000,000.00]

over a period of two years was not addressed by the Court.”

On January 12, 2022, Mr. Shannon filed an amended motion to modify

and/or terminate spousal support (“second motion to modify”),2 wherein he alleged

that “spousal support should be terminated retroactive to a date in 2013, which

ha[d] yet to be determined because [Ms. Shannon] received in excess of

[$1,000,000.00] from any third party within a two year period.” Additionally, Mr.

Shannon averred that Ms. Shannon had “intentionally withheld, failed to reveal, or

failed to disclose” the material facts related to her alleged receipt of these sums of

2 Although Mr. Shannon styled his motion as an “amended” motion to modify, the original

motion to modify had been resolved via the granting of Ms. Shannon’s motion for summary
judgment. The original motion to modify sought modification based on the default rule found in
the La. C.C. art. 114—a material change in circumstances. However, by granting Ms. Shannon’s
motion—which specifically prayed for the dismissal of Mr. Shannon’s motion to modify—and
finding that the consent judgment’s terms governed, the district court effectively resolved all
issues raised in the original motion to modify. As such, we will refer to Mr. Shannon’s amended
motion to modify as his second motion to modify.

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money.3 One day later, Mr. Shannon filed a motion to suspend spousal support

with incorporated memorandum, wherein he alleged that Ms. Shannon had

received over $1,000,000.00 in satisfaction of the consent judgment condition as

follows: “on April 25, 2013, [Ms. Shannon] received $1,650,000.00. Also in 2013,

she received $350,000.00, and on November 25, 2014, [Ms. Shannon] received an

inheritance of $212,183.57 along with other amounts.” Through discovery, it was

learned that the $1,650,000.00 was transferred to Mr. Shannon from an individual

named Chad Emmett (“Mr. Emmett”).4

Mr. Shannon’s second motion to modify came for hearing over three non-

consecutive days—June 2, 2022, October 25, 2022, and November 29, 2022. After

the close of the first day to testimony, on June 2, 2022 at 3:20 p.m., Ms. Shannon

filed six peremptory exceptions: two for prescription, three for no cause of action

and/or no right of action, and one for res judicata.5 In response to these exceptions,

Mr. Shannon filed an opposition on October 17, 2022, wherein he alleged that the

exceptions were untimely. On the second day of trial, the district court noted that

it would delay ruling on Ms. Shannon’s exceptions until the hearing on Mr.

Shannon’s second motion to modify was completed. After the conclusion of the

hearing and oral argument on November 29, 2022, the district court took the matter

under advisement. On December 5, 2022, the parties entered into a joint motion for

judgment on the pleadings, memoranda, and evidence adduced at trial related to

the six exceptions filed by Ms. Shannon on June 6, 2022. The district court

3 We note, at this point, that the allegations as to the sources of money were very broad and

attributed to inheritance and gifts received.
4 Ms. Shannon and Mr. Emmett have cohabited together since 2006.

5 See more detailed discussion, infra.

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rendered its ruling and reasons for judgment in writing on March 31, 2023,

dismissing all of Ms. Shannon’s peremptory exceptions as untimely and granting

Mr. Shannon’s request to terminate spousal support with such termination

retroactive to January 12, 2022—the date of judicial demand—with Ms. Shannon

owing $20,296.80 in reimbursement. This appeal followed.

Mr. Shannon responded with an answer, seeking a retroactive termination

date of April 25, 2013, and reimbursement in the amount of $511,323.00.

STANDARD OF REVIEW

“When reviewing questions of fact as determined by the factfinder, be it a

jury or a judge, appellate courts utilize the manifest error or clearly wrong standard

of review.” Veazey v. Johnson, 21-0639, p. 8 (La. App. 4 Cir. 2/15/23), 358 So.3d

186, 191 (quoting Harold A. Asher, CPA, LLC v. Haik, 12-0771, p. 4 (La. App. 4

Cir. 4/10/13), 116 So.3d 720, 723). Additionally, “[t]he manifest error standard of

review also applies to mixed questions of law and fact.” Id. (citing Davis v. Nola

Home Constr., L.L.C., 16-1274, p. 6 (La. App. 4 Cir. 6/14/17), 222 So.3d 822,

840). When an appellate court reviews questions of law, the de novo standard of

review applies. Id. (citing Bradix v. Advance Stores Co., Inc., 17-0166, p. 3 (La.

App. 4 Cir. 8/16/17), 226 So.3d 523, 527). Further, “[i]n the interpretation of

contracts, the trial court’s interpretation of the contract is a finding of fact subject

to the manifest error rule.” French Quarter Realty v. Gambel, 05-0933, p. 3 (La.

App. 4 Cir. 12/28/05), 921 So.2d 1025, 1027-28 (quoting Genghis Kahn, Inc. v.

Formosa Hotel, Inc., 03-1218, p. 4 (La. App. 4 Cir. 6/2/04), 876 So.2d 923, 925).

DISCUSSION

Ms. Shannon essentially raises three assignments of error: (1) the district

erred in summarily dismissing Ms. Shannon’s peremptory exceptions; (2) the

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district court erred in finding that the $1,650,000.00 payment to Ms. Shannon was

a transfer from a third party that satisfied the termination clause in the consent

judgment; and (3) the district court erred in terminating spousal support without

first making a finding as to the current necessitous circumstances of Ms. Shannon.

In addition, and as a preemptive strike, Ms. Shannon contends that the district

court did not err in terminating spousal support to the date of judicial demand. We

will address each of these errors in turn.

Exceptions

Ms. Shannon filed six peremptory exceptions6 to Mr. Shannon’s second

motion to modify. First, Ms. Shannon argued that Mr. Shannon’s claim for

termination of spousal support was subject to res judicata7 due to her successful

motion for summary judgment. Second, Ms. Shannon contended that Mr. Shannon

6 Louisiana Code of Civil Procedure Article 927 provides:

A. The objections that may be raised through the peremptory exception include but are
not limited to the following:
(1) Prescription.
(2) Peremption.
(3) Res judicata.
(4) Nonjoinder of a party under Articles 641 and 642.
(5) No cause of action.
(6) No right of action, or no interest in the plaintiff to institute the suit.
(7) Discharge in bankruptcy.
(8) The court’s lack of jurisdiction over the subject matter of the action.
7 Louisiana Revised Statutes 13:4231, entitled “Res judicata,” provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between
the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of
final judgment arising out of the transaction or occurrence that is the subject matter of the
litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of
final judgment arising out of the transaction or occurrence that is the subject matter of the
litigation are extinguished and the judgment bars a subsequent action on those causes of
action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any
subsequent action between them, with respect to any issue actually litigated and
determined if its determination was essential to that judgment.

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did not state a cause of action for fraud or misrepresentation because Mr. Shannon

voluntarily signed the consent judgment.8 Third, Ms. Shannon, relying on La.

C.C.P. art. 2004, urged that even if there was a viable claim for fraud, that claim

had prescribed as claims for fraud or ill practices must be brought within one year

of discovery.9 Fourth, Ms. Shannon argued that, in accordance with La. C.C.P. art.

1151, by failing to obtain leave of court or consent of Ms. Shannon prior to filing

the second motion to modify, Mr. Shannon’s motion should be dismissed for no

right of action and/or no cause of action.10 Fifth, Ms. Shannon asserted that Mr.

Shannon failed to state a cause of action entitling him to relief sought because he

sought retroactivity to a date prior to judicial demand in contravention to La. R.S.

9:321.11 Sixth, and lastly, Ms. Shannon argued that pursuant to La. C.C. art. 3490,

Mr. Shannon’s request for relief seeking reimbursement prescribed.12 After

8 Louisiana Code of Civil Procedure Article 856 provides, in pertinent part, that “[i]n pleading

fraud . . . the circumstances constituting fraud . . . shall be alleged with particularity.”
9 Louisiana Code of Civil Procedure Article 2004 provides in pertinent part:

(A) A final judgment obtained by fraud or ill practices may be annulled.
(B) An action to annul a judgment on these grounds must be brought within one year of
the discovery by the plaintiff in the nullity action of the fraud or ill practices.
10 Louisiana Code of Civil Procedure Article 1151 provides:

A plaintiff may amend his petition without leave of court at any time before the answer
thereto is served. He may be ordered to amend his petition under Articles 932 through
934. A defendant may amend his answer once without leave of court at any time within
ten days after it has been served. Otherwise, the petition and answer may be amended
only by leave of court or by written consent of the adverse party.
11 Louisiana Revised Statutes 9:321 provides in pertinent part:

C. Except for good cause shown, a judgment modifying or revoking a final spousal
support judgment shall be retroactive to the date of judicial demand.
12 Louisiana Civil Code Article 3490 provides:

One who has possessed a movable as owner, in good faith, under an act sufficient to
transfer ownership, and without interruption for three years, acquires ownership by
prescription.

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considering Ms. Shannon’s exceptions on the pleadings, the district court

dismissed the exceptions as untimely. On appeal, Ms. Shannon contends that the

district court erred in summarily dismissing her exceptions because, pursuant to

La. C.C.P. art. 928, peremptory exceptions can be brought at any stage of the trial

proceeding.

In opposition, Mr. Shannon argues that his second motion to modify is a

summary proceeding governed by La. C.C.P. art. 2592. As such, the applicable

article for the time delay in which to file exceptions in a summary proceeding is

La. C.C.P. art. 2593, which mandates that the exceptions be filed before the trial

begins. Mr. Shannon posits that, because the contradictory hearing on his second

motion to modify began at 9:30 a.m. on June 2, 2022, Ms. Shannon was untimely

in filing her exceptions at 3:20 p.m.—more than five hours after the trial

commenced. We agree.

Louisiana Code of Civil Procedure Article 2592 provides, in part, that

“[s]ummary proceedings may be used for trial or disposition” of matters involving:

(8) The original granting of, subsequent change in, or termination of
custody, visitation, and support for a child; support for a spouse;
injunctive relief; support between ascendants and descendants; use
and occupancy of the family home or use of community movables or
immovables; or use of personal property.

The succeeding article explains that “[e]xceptions to a contradictory motion, rule

to show cause, opposition, or petition in a summary proceeding shall be filed prior

to the time assigned for, and shall be disposed of at, the trial.” La. C.C.P. art.

2593. In contrast, La. C.C.P. art. 928 states, in pertinent part, that “[t]he

peremptory exception may be pleaded at any stage of the proceeding in the trial

prior to a submission of the case for a decision . . . .” We note that “[a]s a general

rule of statutory construction, a specific statute controls over a broader, more

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general statute.” Treas v. Koerner, 20-0050, p. 8 (La. App. 4 Cir. 7/15/20), 364

So.3d 285, 290 (quoting Channelside Serv., LLC v. Chrysochoos Group, Inc., 15-

0064, p. 17 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 761). Thus, “where two

statutes deal with the same subject matter, in the event of a conflict, the specific

statute prevails over the statute more general in nature.” Id. (citing Channelside,

15-0064, pp. 17-18, 194 So.3d at 761).

In Gilkes v. Bower, the underlying action was a request for a preliminary

injunction, which is a summary proceeding as defined by La. C.C.P. art. 2592(8).

99-0574, p. 1 (La. App. 4 Cir. 4/1/99), 734 So.2d 98, 99. On the morning of the

hearing for the injunction, the defendant filed a peremptory exception of lack of

subject matter jurisdiction and a declinatory exception of lack of personal

jurisdiction. In those exceptions, the defendant requested that the district court

delay the hearing on the preliminary injunction in order to first rule on the

exceptions. However, the district court refused and proceeded with the preliminary

injunction hearing. After the district court granted the preliminary injunction, the

defendant appealed the matter, specifically seeking review of the failure to hear his

exceptions. On appeal, while the time of the hearing is not explicitly provided, this

Court noted that defendant’s exceptions were filed “at 9:37 a.m. on 22 January

1999, minutes before the hearing on the preliminary injunction began.” Id. at p. 4,

734 So.2d at 101. Thus, because “he filed these pleadings before the time of the

scheduled trial […] the [district] court should have considered them on the trial on

the preliminary injunction.” Id. at p. 5, 734 So.2d at 101 (citing Sizeler v. Sizeler,

375 So.2d at 123-24 (La. App. 4 Cir. 1979)).

In Sizeler, the underlying action centered on alimony payments between

husband and wife, which is a summary proceeding as defined by La. C.C.P. art.

9

2592(8). 375 So.2d 122, 123 (La. App. 4 Cir. 1979). On the day of the hearing, the

husband filed an exception to the wife’s use of summary proceedings in the matter.

The hearing was set to begin at 10:00 a.m., and the husband filed his exception at

11:20 a.m. However, the hearing did not begin as scheduled, and did not actually

commence until an undisclosed time in the afternoon after the exception had been

filed. Nonetheless, the district court denied the exception as untimely based on the

original starting time for the hearing. On appeal, this Court disagreed with the

district court and explained:

The obvious reasoning behind the adoption of [La. C.C.P. art.] 2593 is
to afford an opportunity for the court to consider, in limine, the
question of whether or not the matter before the court can properly be
heard in a summary proceeding. Because an exception filed prior to
the commencement of the actual hearing (as distinguished from the
time the matter is set or scheduled for hearing) affords the in limine
opportunity to the trial judge, we conclude that the exception filed in
this case was timely.

Id. at 123-24.

In the case sub judice, the underlying issue in the second motion to modify is

spousal support, making this motion triable by summary proceeding in accordance

with La. C.C.P. art. 2592(8). Ms. Shannon’s exceptions were filed in response to

this motion. Because La. C.C.P. arts. 2592 and 2593 are more specific than the

general rules provided under La. C.C.P. art. 928, we find that the timing

requirements in the more specific articles prevail. Thus—in keeping with La.

C.C.P. art. 2593—in order for the exceptions to be timely, they needed to be filed

before 9:30 a.m. on June 2, 2022, the time and date of which the hearing on Mr.

Shannon’s second motion to modify commenced. As Ms. Shannon did not file

until 3:20 p.m. later that day, the exceptions were untimely. This assignment of

error is not persuasive.

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Termination of Spousal Support

This assignment of error centers on whether or not the $1,650,000.00

transferred from Mr. Emmett to Ms. Shannon satisfied a condition in the consent

judgment, such that Mr. Shannon’s obligation of spousal support terminated. Three

witnesses testified at the hearing: Ms. Shannon; Mr. Emmett; and Jeffrey Meyers

(“Mr. Meyers”), an expert in financial forensics, forensic accounting, and a

Certified Fraud Examiner. The relevant testimony centered on the sale of an

immovable property in Wainscott, New York (the “Wainscott property”). The

Wainscott property was owned by Mr. Emmett, but he and Ms. Shannon alleged

that she had purchased a one-half interest in 2011, such that the subsequent sale of

the property in 2013 resulted in her receiving a return on her investment in the

amount of $1,650,000.00. Mr. Shannon argued that Ms. Shannon’s receipt of the

$1,650,000.00 was nothing more than a gift exchanged between Mr. Emmett and

Ms. Shannon, such that it violated the terms of the consent judgment, thus

terminating his spousal support obligation. A more detailed account of each

witness’s testimony follows.

Ms. Shannon

Ms. Shannon was the first witness called to testify at the hearing. She

relayed that since at least 2005, Mr. Shannon had paid her between $4,000.00 and

$5,000.00 per month for spousal support. Ms. Shannon then testified to having

received several different sums of money from different sources. In 2013, she

signed a promissory note and mortgage in favor of a “Marie Miggy Monroe” for

$350,000.00. Mr. Emmett then paid this $350,000.00 back to Ms. Monroe in full

later in 2013. Ms. Shannon acknowledged that she received $10,688.00 in 2014 as

an advance on inheritance from her mother and an additional $212,183.57 from her

11

mother’s succession later that same year. Ms. Shannon further acknowledged that

on April 25, 2013, the sum of $1,650,000.00 had been transferred into one of her

accounts.13 When asked if the funds came from Mr. Emmett, Ms. Shannon

responded that “[t]his money came from the sale of a property in Wainscott, New

York.” According to Ms. Shannon, in 2011, she transferred $1,000,000.00 to Mr.

Emmett in exchange for a one-half interest in the Wainscott property, where she

and Mr. Emmett resided. After being shown a copy of her Fidelity statement

evidencing the $1,650,000.00 transfer, Ms. Shannon insisted that her own

handwriting appeared on the document, which read “[p]urchase of one half interest

in 128 [sic] Sayres Path Wainscott, New York.” However, she admitted that her

name was not on the title of this property, nor did she pay property taxes on this

property. When probed whether there was any type of agreement between Ms.

Shannon and Mr. Emmett memorializing the alleged sale, the following exchange

occurred:

A. We had a verbal agreement.
Q. Okay. Describe the verbal agreement that you and Mr.
Emmett had in 2011 for the Court please.
A. It was really simple. We were, originally I was going to
own the whole house. I thought that was a little bit
much, but I was advised that I would own half of an
interest in the Wainscott property.
Q. Okay. And you ended up with half interest?
A. Yes.
Q. Was any agreement reached with respect to what would
happen if the property were sold?
A. The way we’d split the proceeds of the sale 50/50.
Q. You would split proceeds of the sale 50/50?
A. Yes.

13 Although several different amounts of money were discussed at the hearing, Ms. Shannon’s

assignment of errors in the instant appeal only calls into question the $1,650,000.00. As such,
we pretermit discussion of any other amounts.

12

Ms. Shannon’s counsel then introduced an unsigned written residential contract of

sale. The contract was drafted to reflect the sale of the entire Wainscott property,

and while not executed by Ms. Shannon and Mr. Emmett, Ms. Shannon said that

she and Mr. Emmett had discussed the contract with an attorney prior to agreeing

for Ms. Shannon to purchase only a one-half interest in the property. Ms. Shannon

testified that the Wainscott property was sold in 2013 for $3,475,000.00 and, after

closing costs, she received one-half of the sales price in the amount of

$1,650,000.00—which she later admitted that she did not report as a gain on her

2013 taxes.

Mr. Emmett

When the hearing resumed on October 25, 2022, Mr. Emmett was called to

the stand. With regard to the Wainscott property, Mr. Emmett testified the

following:

Q. Okay. Now, it’s been alleged that in 2011 Julie purchased
a one-half interest in the Wainscott home from you.
You’re familiar with that allegation?
A. I am.
Q. But she didn’t do that, did she?
A. Could you repeat the question?
Q. She didn’t purchase a one-half interest from you in the
Wainscott property in 2011, did she?
A. Of course she did.

According to Mr. Emmett, it was his intention for Ms. Shannon have a one-half

interest in Wainscott to either keep or sell. Once the property sold, he and Ms.

Shannon each received $1,650,000.00. However, Mr. Emmett admitted that he did

not possess any documents confirming that Ms. Shannon had purchased the

property. Further, when looking at Mr. Emmett’s 2011 tax return, there was no

reference to the sale of the one-half interest to Ms. Shannon, and his 2013 tax

return reported one hundred percent of the sale of the Wainscott property.

13

Additionally, Mr. Emmett testified that he transferred one hundred percent of the

ownership to the buyer as the house was in his name alone, and he did not recall if

a conversation about Ms. Shannon owning a one-half interest in the property ever

arose between him and the buyer.

Mr. Meyers

Mr. Meyers, a Certified Fraud Examiner, was called to give expert testimony

regarding the sale of the Wainscott property. Mr. Meyers disputed Mr. Emmett’s

testimony that Ms. Shannon paid him in exchange for a one-half interest in the

Wainscott property. To form his opinion, Mr. Meyers reviewed pages of

documents, including the individual tax returns and bank statements from Ms.

Shannon and Mr. Emmett. According to Mr. Meyers, based on the information

presented to him for review and the lack of any transactional documents

identifying Ms. Shannon as an owner of the Wainscott property, there was nothing

to suggest that the $1,650,000.00 was Ms. Shannon’s share of proceeds from the

sale of the Wainscott property. Instead, he concluded that the evidence presented

contradicted that suggestion. Mr. Meyers opined that the simplest explanation was

that “the transfer of the [$1,650,000.00] from Mr. Emmett to [Ms. Shannon] would

have been a payment from a third point. It would have been a gift.” Mr. Meyers

further opined that the evidence suggested that there were misrepresentations made

by Ms. Shannon with regard to the $1,650,000.00 transfer.

After taking the matter under advisement, the district court, relying on the

testimony of the witnesses, bank statements, tax returns, and an unexecuted written

residential contract of sale, found that the monies received by Ms. Shannon

triggered the termination clause in the consent judgment. Specifically, the district

court determined that:

14

The Court is not persuaded and the evidence does not support her
assertion that the monies received from Mr. Emmett upon the sale of
the Wainscot[t] property was a return of funds she invested in the
property along with the realization of a gain on that investment.
Collateral documents related to the ownership of the property belie
her assertions as to her interest in the property.

Going even further, the district court reasoned that even in considering the

contradicting testimony and introduced exhibits, because the consent judgment

bound Mr. Shannon and Ms. Shannon, the district court was not required “to

inquire into the reason or intention behind the transfer of the funds.”14 Because

Ms. Shannon received monies in excess of $1,000,000.00 within a two-year period,

which the district court concluded she did, the spousal support obligations created

by the consent judgment terminated.

It is well-settled law that “[w]hen findings are based on determinations

regarding the credibility of witnesses, the manifest error-clearly wrong standard

demands great deference to the trier of fact’s findings; for only the factfinder can

be aware of the variations in demeanor and tone of voice that bear so heavily on

the listener’s understanding and belief in what is said.” Braud v. Bernstein, 23-

0332, p. 4 (La. App. 4 Cir. 12/20/23), 381 So.3d 58, 62 (quoting Rosell v. ESCO,

549 So.2d 840, 844 (La. 1989)). It is equally well-settled law that when applying

the manifest error standard of review to the trial court’s interpretation of the

contract, an appellate court “may not simply substitute its own view of the

evidence for the trial court’s view, nor may it disturb the trial court’s finding of

fact so long as it is reasonable.” Bartlett Constr. Co., Inc. v. St. Bernard Parish

14 We note that “a trial court’s reasons for judgment are not part of the judgment and that

appellate courts review judgments, not reasons for judgment. But, appellate courts may consider
a trial court’s reasons for judgment to obtain insight into the trial court's judgment.” Heard,
McElroy & Vestal, L.L.C. v. Schmidt, 22-0221, p. 16 (La. App. 4 Cir. 9/21/22), 349 So.3d 663,
673 (citing Bruno v. CDC Auto Transp., Inc., 2019-1065, p. 9 (La. App. 4 Cir. 6/3/20), 302
So.3d 8, n. 11) (internal citations omitted).

15

Council, 99-1186, pp. 4-5 (La. App. 4 Cir. 5/31/00), 763 So.2d 94, 97 (citing Syrie

v. Schilhab, 96–1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176).

Upon review of the record, we do not find that the district court erred in

finding that the testimony of Mr. Meyers, along with any exhibits relied upon, to

be more credible and persuasive than that of Ms. Shannon and Mr. Emmett. Ms.

Shannon and Mr. Emmett testified that they had participated in a sale in 2011,

whereby Ms. Shannon purchased a one-half interest in the Wainscott property for

$1,000,000.00 from Mr. Emmett. After the Wainscott property sold in 2013, they

each testified, the $1,650,000.00 transferred to Ms. Shannon was merely a return

on her 2011 investment. On the other hand, Mr. Meyers testified that based on the

financial documents he had reviewed and the lack of any transactional documents

identifying Ms. Shannon as an owner of the Wainscott property, the $1,650,000.00

was nothing more than a gift. In hearing the above evidence, and in considering

the language of the consent judgment itself, we find that the district court

reasonably interpreted the consent judgment such that the $1,650,000.00 payment

constituted monies received by Ms. Shannon, which acted to render Mr. Shannon’s

obligation to pay spousal support subject to termination.

This assignment of error is unpersuasive.

Hearing on Necessitous Circumstances

This assignment of error focuses on another crossroads between default

Civil Code articles and the presence of a consent judgment. Ms. Shannon asserts

that, based on the mandate of La. C.C.P. art. 112, she was entitled to a hearing with

evidence on her current necessitous circumstances prior to termination of spousal

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support.15 Additionally, Ms. Shannon argues that, in order for Mr. Shannon to

prevail on termination of spousal support, he must prove that, under a totality of

the circumstances, Ms. Shannon is no longer in need. However, Ms. Shannon fails

to consider that the instant matter involves a consent judgment, which dictates the

terms of the agreement between the parties.

“A consent judgment is a bilateral contract which is voluntarily signed by

the parties and accepted by the court.” Gebhard v. Gebhard, 10-1412, p. 6 (La.

App. 4 Cir. 2/16/11), 60 So.3d 717, 721 (quoting Durfee v. Durfee, 44,281, p. 4

(La. App. 2 Cir. 5/13/09), 12 So.3d 984, 987-88). “It has binding force from the

voluntary acquiescence of the parties.” Id. (citing Durfee, 44,281, p. 4, 12 So.3d at

988). When parties enter into a consent judgment, the terms of the contract are

paramount such that “[t]he right to modify the amount of spousal support awarded

through a consent judgment depends upon the specific terms of the consent

judgment.” Williams v. Poore, 10-1087, p. 9 (La. App. 4 Cir. 1/12/11), 55 So.3d

953, 958 (citing Aufrichtig v. Aufrichtig, 34,909, p. 6 (La. App. 2 Cir. 8/22/01),

15 Louisiana Civil Code Article 112 provides, in pertinent part:

A. When a spouse has not been at fault prior to the filing of a petition for divorce 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, including:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties, including any interim allowance or final child
support obligation.
(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.
(9) The existence, effect, and duration of any act of domestic abuse committed by the
other spouse upon the claimant or a child of one of the spouses, regardless of whether the
other spouse was prosecuted for the act of domestic violence.

17

796 So.2d 57, 62). “To bar modification of the duration and/or amount of spousal

support, the consent judgment must evidence the intent of the parties to do so.”

Gebhard, 10-1412, p. 6, 60 So.3d at 721 (citing Ray v. Ray, 05-0873, p. 5 (La.

App. 1 Cir. 3/23/07), 960 So.2d 174, 178). It is then incumbent upon the district

court to “interpret the disputed provision[s] of the contract according to its text

without reference to what might have been the result had the parties agreed to be

governed by the applicable code articles.” Romero v. Romero, 509 So.2d 681, 684

(La. App. 3 Cir. 1987).

Because this matter involves a consent judgment, the terms of the contract

prevail over the default rules provided by the Civil Code for termination of spousal

support. While we note that “the mere listing of events which will terminate

spousal support does not evidence a clear intent that that amount of spousal support

can never be changed,” that is not the case here. Williams, 10-1087, p. 9, 55 So.3d

at 958 (quoting Ray, 05-0873, p. 6, 960 So.2d at 178). The consent judgment in

this matter explicitly provides that the “support payments are not subject to

increase, decrease, or termination for any reason whatsoever, other than the death

of [Mr. Shannon] or [Ms. Shannon], or as set out below.” This term of the contract

not only describes situations that will terminate the payments, but it also clearly

states that there shall be no modifications such that no increases or decreases are

allowed. Because the terms of the consent judgment govern and the terms directly

address a potential modification, Ms. Shannon is not entitled to the hearing with

evidence as would occur under default procedures for termination of spousal

support found within the Civil Code.

Retroactivity/Mr. Shannon’s Answer to Appeal

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The final issue on appeal focuses on the date of retroactivity for the

termination of spousal support. Ms. Shannon argues that the district court was

correct in finding that, pursuant to La. R.S. 9:321(C), the proper date for

retroactivity was the date of judicial demand, January 12, 2022. In response, Mr.

Shannon contends that, because a consent judgment is a contract, the general rules

governing contracts prevail over La. R.S. 9:321(C), cited by Ms. Shannon. Mr.

Shannon likewise raises the issue of retroactivity in his Answer. In essence, he

argues that: (1) the district erred court erred in applying La. R.S. 9:321(C) and

finding that the date of judicial demand was January 12, 2022, rather than February

11, 2013—the day of the $1,650,000.00 payment; and (2) in the alternative, if La.

R.S. 9:321(C) applies, the district court erred in finding the date of judicial demand

was January 12, 2022, rather than July 17, 2020.16 Because Ms. Shannon’s third

assignment of error and the errors raised by Mr. Shannon in his Answer are

intertwined, we will address them together.

The termination clause in the consent judgment provides:

These payments are only subject to termination upon the death
of either party, or if Julia Westrich Shannon should inherit, be gifted,
or in any other manner receive a sum of money equal to or in excess
of $1,000,000 from any third party other than Jack Shannon within a
two year period.

Relying on La. C.C. art. 1767, Mr. Shannon posits that based on the

language of the termination clause in the consent judgment, his obligation to pay

spousal support is dependent on the occurrence of an uncertain event. This clause,

he argues, operates as a resolutory condition that automatically terminated his

16 Mr. Shannon further requests that this Court find that he is entitled to reimbursement in the

amount of $511,323, not $20,296.80, because Ms. Shannon received spousal support payments
that were not due to her from May 2013 to May 2022; and alternatively, that he is entitled to
reimbursement in the amount of $102,872, not $20,296.80, for his payment of life insurance
premiums, which terminated retroactive to the date of judicial demand, July 17, 2020.

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obligation to pay spousal support when that uncertain event occurred. Thus, Mr.

Shannon contends, the date of retroactivity should be to the date of the occurrence

of the uncertain event, or, in this case, April 25, 2013, the date of the

$1,650,000.00 transfer. We find Mr. Shannon’s reliance on the general rules of

contract law to be misplaced.

La. C.C. art. 1767 provides that “[a] conditional obligation is one dependent

on an uncertain event” and if said “obligation may be immediately enforced but

will come to an end when the uncertain event occurs, the condition is resolutory.”

Further, La. C.C. art. 1776 provides that “[i]n a contract for continuous or periodic

performance, fulfillment of a resolutory condition does not affect the validity of

acts of performance rendered before fulfillment of the condition.” While we do

not dispute that a consent judgment is a contract, as discussed elsewhere in this

opinion, specific statutes control over more broad and general statutes. Treas, 20-

0050, p. 8, 364 So.3d at 290. Looking beyond the general rules on contracts, we

note that “[e]xcept for good cause shown, a judgment modifying or revoking a

final spousal support judgment shall be retroactive to the date of judicial demand.”

La. R.S. 9:321(C).

Although the facts of Pellerin v. Pellerin do not mirror the facts in the

present case, we find it to be instructive on the issue of whether the application of

La. R.S. 9:321(C) is applicable to consent judgments and judgments terminating

spousal support. 17-0946, (La. App. 4 Cir. 6/6/18), 249 So.3d 77. In Pellerin, the

parties separated in 2014 and, in April of 2015, Mr. Pellerin was ordered to pay

Mrs. Pellerin child support and interim spousal support. In October 2015, the

parties entered into a consent judgment, wherein Mr. Pellerin’s child support was

slightly reduced from the previous order of child support, and Mr. Pellerin agreed

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to continue the spousal support payments in accordance with that previous order.

On April 15, 2016, Mrs. Pellerin filed a rule for final spousal support, and on April

20, 2016, the judgment of divorce was rendered. Mrs. Pellerin filed a joint motion

and order to continue the rule for final spousal support in October 2016, which

contained the following provision: “[T]he parties agree to contractual spousal

support on the same terms and conditions as the current interim spousal support

order, which will last up and until the issue of Final Periodic Spousal Support is

decided through trial or consent judgment.” Id. at p. 2, 249 So.3d at 79. On

December 15, 2016, the parties entered into a consent judgment, wherein Mr.

Pellerin would continue to pay Ms. Pellerin child support and contractual spousal

support in the same amount as the interim spousal support award. In January 2017,

Mr. Pellerin filed a motion to modify based on a change in material circumstances.

The matter came for hearing in May of the same year. The district court denied the

modification as to the child support, and further held that Mrs. Pellerin was entitled

to final spousal support payments retroactive to April 20, 2016, the date the

judgment of divorce was rendered. On appeal, this Court addressed the date of

retroactivity, laying out the law on consent judgments and La. R.S. 9:321. Under

the facts of Pellerin, this Court applied subsections (B)(1)-(2) of La. R.S. 9:321,

which provide:

B(1) A judgment that initially awards or denies final spousal support
is effective as of the date of the judgment is rendered and terminates
an interim spousal support allowance as of that date.
(2) If an interim spousal support allowance award is not in effect on
the date of the judgment awarding final spousal support, the judgment
shall be retroactive to the date of judicial demand, except for good
cause shown.

In applying that law to the facts, this Court reversed the district court and found

that, because the parties entered into a consent for Mr. Pellerin to pay contractual

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spousal support until the issue of final spousal support was determined, interim

spousal support continued to be in effect on the date the judgment for final spousal

support was rendered. Thus, this Court held that the date of retroactivity of “the

final spousal support award shall be the date upon which the trial court decided the

issue of final spousal support, and the interim spousal support allowance is

terminated as of that date.” Id. at p. 5, 249 So.3d at 81.

In the case sub judice, Mr. Shannon filed his second motion to modify on

January 12, 2022, seeking termination of spousal support based on the fulfillment

of the $1,000,000.00 gift condition. Because the judgment terminating spousal

support is in response to the second motion to modify and applying the mandates

of La. R.S. 9:321(C), we find that the district court did not err in determining that

the termination is retroactive to January 12, 2022, the date of judicial demand.

Having found that La. R.S. 9:321(C) is applicable to this case, we pretermit

discuss of the remaining assignment of errors raised by Mr. Shannon in his

Answer.

DECREE

For the aforementioned reasons, we affirm the district court’s March 31,

2023 judgment.

AFFIRMED

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