J. Marc Wiley v. Leota Gail Leverett Wiley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1306

J. MARC WILEY

VERSUS

LEOTA GAIL LEVERETT WILEY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2006-6578
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Jimmie C. Peters,
Judges.

AFFIRMED.

James Nathan Prather, Jr.
Attorney at Law
P. O. Box 3993
Lafayette, LA 70502
(337) 237-0047
Counsel for Defendant/Appellant:
Leota Gail Leverett Wiley

Andre Doguet
Attorney at Law
1223 St. John Sreet.
Lafayette, LA 70506
(337) 235-7144
Counsel for Plaintiff/Appellee:
J. Marc Wiley

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 of

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.

After 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.

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The 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.

Davy v. Davy, 469 So.2d 481, 482 (La.App. 3 Cir. 1985) (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.

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(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
obligor’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.

The sole item that Gail submitted to support her argument is a Louisiana Health

Plan HIPAA Brochure dated 2007. According to Gail, this brochure, if applied to the

situation that she will face in the future, indicates that her premiums for health care

coverage may rise to $735.00 per month rather than the $522.66 that was used by the

trial court in calculating her expenses. Further, Gail asked the trial court to consider

the $5,000.00 yearly deductible as an accruing monthly expense under the plan

annunciated in the 2007 brochure. We agree with the trial court that the brochure is

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speculative. Moreover, the proper procedural method for Gail to pursue a change in

final spousal support should any of her current circumstances materially change in the

future is through La.Civ.Code arts. 114 and 116.1 Thus, we find no abuse of

discretion by the trial court in fixing Gail’s monthly costs.

Next, the trial court calculated that Gail had received a total of $693,841.00

from the community in addition to a 2002 Toyota Avalon free from any indebtedness.

Gail does not dispute that she received this considerable sum. Rather, she alleges that

the majority of these funds are subject to penalties and taxes for early withdrawal and

that she would only receive sixty percent of the funds available should she withdraw

them. Gail fails to point to any evidence in the record to bolster this allegation.

Rather, Gail seems to contend that the asset depletion required of her per the trial

court’s calculations is not reasonable.

Our Supreme Court, in Loyacano v. Loyacano, 358 So.2d 304, 311 (La.1978),

rev’d on other grounds, 375 So.2d 1314 (La.1979) stated the following:

On the question of what extent of asset depletion, if any, should be
required of a spouse before he or she may receive [final spousal
support], it is impossible to say what relative weight must be given to
any one factor in a particular case. The court should instead apply a rule
of reasonableness in light of all the factors named herein and any other
circumstance relevant to the litigation. For example, in determining the
rate at which a spouse may be required to deplete his or her assets, it
may be pertinent to consider the mental and physical health of the

1
Louisiana Civil Code Article 114 states:

An award of periodic support may be modified if the circumstances of either party
materially change and shall be terminated if it has become unnecessary. The
subsequent remarriage of the obligor spouse shall not constitute a change of
circumstance

Louisiana Civil Code Article 116 states:

The obligation of final spousal support may be modified, waived, or extinguished by
judgment of a court of competent jurisdiction or by authentic act or act under private
signature duly acknowledged by the obligee.

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parties, their age and life expectancy, the parties’ other financial
responsibilities, the relative ability, education and work experience of
the parties, and the potential effect of any contemplated depletion of
assets upon the children of the marriage. The problem is of such a nature
as to be insusceptible of solution by any exact formula or monetary
index, and the court should proceed with great caution and due regard
for the probable long range effects of any depletion contemplated.

The trial court’s ruling and judgment on final spousal support indicates that it

took into account the relevant factors as stated in Loyacano. Gail’s life expectancy

was addressed by Deborah Gordon, a Certified Public Accountant. Gordon testified

that Gail could withdraw $2,588.00 monthly in after tax income for her expenses and

still have $180,279.00 left in her accounts at the age of eighty-three, Gail’s current

life expectancy. Further, given that Gail makes these withdrawals, the trial court

calculated that Gail would also have approximately $245,000.00 in equity in the

home she purchased after the couple divided a portion of their community assets.

Moreover, Gail’s health, education, ability, and work experience were taken

into account by the trial court in concluding that Gail could contribute $800.00

monthly to her support. There is no evidence raised by either party that the potential

effect of any contemplated depletion of assets upon the children would be adverse.

Accordingly, we find that the trial court did not abuse its discretion in expecting Gail

to deplete some of her substantial assets in order to help support herself.

Finally, the trial court used Gordon’s withdrawal figure to conclude that Gail

would need approximately $1,000.00 per month to meet her expenses ($3,566.65 in

monthly expenses minus the 2,588.00 in withdrawal). Gail’s ability to provide

$800.00 per month towards her support via working, as discussed in issues presented

for review numbers two and three, was then properly subtracted from the $1,000.00

deficit. This left the trial court with the conclusion that Marc should pay Gail

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$200.00 per month in order to make up the difference between the $1,000.00 per

month needed to meet expenses and the $800.00 per month that Gail could provide

for herself. We find ample basis in the record to support each calculation made by

the trial court. Thus, we find that its conclusion that Marc should pay Gail $200.00

per month in final spousal support was not an abuse of discretion.

ISSUE PRESENTED FOR REVIEW NUMBER TWO:

Gail next asserts that the trial court’s award of final support was erroneous

because “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.” This issue questions factual

determinations made by the trial court. Therefore, “[w]e 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).” Davy, 469 So.2d at 482 (parenthetical in

original).

The trial court, in ruling as it did regarding Gail’s ability to work, stated the

following:

[Gail] testified she is unable to work. She claims her back injury
renders her disabled. At trial she introduced the deposition of Dr. David
Muldowny. Although he testified her complaints of pain could limit her
ability to work, he had not limited her from working or placed any work
restrictions on her. He did opine she would be unable to sit at a desk for
eight hours a day.

The evidence indicates [Gail] owned a flooring business for seven
years, was a teacher’s aide for eight years and worked as a self-taught
computer draftsman for a year. She earned a bachelor’s degree from the
University of Louisiana at Lafayette, graduating with honors. While
based upon [Gail’s] age and back problems, she cannot be expected to
work an eight hour day, five days a week, her education and intelligence
qualifies her for at least part-time employment. At a minimum she
should be capable of earning $12 per hour and working 20-25 hours per
week. After taxes, she would be able to contribute at least $800 per

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month to her own support.

Gail bases her assertion that the trial court unreasonably found that she could

return to work on two reports of Dr. David Muldowny. The first report, dated January

28, 2009, states, “[Gail] has been a housewife for a long time. She is in the process

of trying to supplement her income, but does not feel like she will be able to go back

to work and I agree.” The second report, dated October 27, 2009, states, “I don’t

think [Gail] is capable of working at this point, primarily because her previous

occupation was retail and I don’t see that she can sit or stand for more than two or

three hours at a time.”

We agree that these reports indicate that Gail would not likely be able to work

at the time they were made. However, Dr. Muldowny, during his deposition on May

13, 2010, testified to the following:

Q. And obviously, the more mobility [Gail] has and the higher
function that she has, the more capable she would be of doing any
sort of work, correct?

A. Correct.

Q. All right. And really, whether of not she returned to you, you
have not limited her from returning to work in any way, shape, or
form?

A. No.

Q. That’s totally a decision by Gail?

A. Yes. I don’t have the specific restriction for work, correct.

....

Q. All right. And she wants to do a wellness program as well as
Pilates. And she’s now at a point where she feels like she wants
to engage I those activities?

A. Yes.

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Q. Do you know whether or not she started them?

A. I don’t, at this point.

Q. All right. And you gave her a release to do it. So from your
standpoint, she’s well enough, from a medical - - your medical
expertise, to authorize her to engage in those activities?

A. Yes.

....

Q. All right. Can she do routine household chores? Would you have
any restrictions for her doing those?

A. No.

Q. Okay. You have not been asked to help her return to work or find
work?

A. No.

Q. You haven’t been asked by any - - to assist in any vocational
rehabilitation efforts of any kind?

A. No.

Q. All right. You’re still recommending that she exercise and walk.
Those things would strengthen her muscles and her joints, right?

A. Potentially, yes.

Q. And that would be good for her?

A. Yes.

Q. In fact, Doctor, wouldn’t work be good - - isn’t work typically a
good thing for people to engage in? It takes their mind off their
physical or medical conditions?

A. Typically, yes. I encourage everyone to try to continue working
in some capacity, if they can.

....

Q. So depending on Gail’s educational background and her ability to
find accommodations for her physical limitations, that would
necessarily change your opinions about her ability to work?

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A. It potentially could, yes.

....

Q. Now, if somebody says, “Okay. You’re in retail. You’ve got to sit at
this desk for eight hours a day,” do you think [Gail] can do it, based on
what you’ve seen in your report and your history on this case?

A. No.

Q. Okay. So it’s a case-by-case basis is what it comes down to?

A. Correct.

This testimony indicates that Gail’s ability to work depends on the position

offered to her. Further, it indicates that Gail’s condition has been improving since the

reports issued by Dr. Muldowny in 2009.

Additionally, it is clear from his deposition that Dr. Muldowny was unaware

of Gail’s education when issuing his opinion regarding Gail’s ability to work, as he

stated in that deposition that he did not know Gail had a degree from ULL. Thus, the

contents of his notes from January and October of 2009 regarding Gail’s ability to

work were limited to an opinion regarding Gail’s ability to obtain work in retail.

Finally, according to his deposition, Dr. Muldowny was not asked to help Gail

find work, nor was he involved in her vocational rehabilitation. Therefore, it is

reasonable that Dr. Muldowny’s opinion was not made completely focused on

whether Gail was unable to work. Rather, according to his deposition, Dr. Muldowny

left that decision up to Gail.

Accordingly, we find that the testimony by Dr. Muldowny does not indicate

that Gail is unable to work, as Gail claims. Her argument is that the expert medical

testimony made the trial court’s conclusion that she could contribute to her support

manifestly erroneous. To the contrary, we find that Dr. Muldowny’s testimony is not

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inconsistent with the trial court’s factual determination that Gail is able to work.

Therefore, Gail’s argument lacks merit.

ISSUE PRESENTED FOR REVIEW NUMBER THREE:

Gail’s next issue listed is that “the Lower Court clearly and manifestly erred

in not considering the time which may be necessary for [her] to acquire appropriate

education, training, or employment should she possibly be considered employable.”

Gail fails to point out any evidence in the record to support this assertion, nor does

she argue this point in brief. Rather than simply finding that she waives this issue,

we will look to the record to determine whether the trial court’s finding that Gail

could contribute to her support was reasonable.

Again, this issue calls into question factual determinations made by the trial

court. Therefore, “[w]e 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).” Davy, 469 So.2d at 482 (parenthetical in original).

We already found in Issue Presented for Review Number Two that the medical

testimony of Dr. Muldowny did not necessitate a finding that Gail could not

physically contribute to her support. Here, we will determine whether the record

supports a finding that Gail possessed the necessary mental attributes to contribute

to her support.

Our review of the entire record supports the trial court’s finding regarding

Gail’s ability to contribute to her own support. Gail operated a floor covering

business for seven years which required her to handle inventory, make sales, line up

installers, and handle customer complaints. According to Gail she did “the whole

schmo.” Further, Gail was a teacher’s aide for eight years and worked as a self-taught

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computer draftsman for a year. She accomplished this while raising the couple’s

children. Further, while balancing these acts, Gail obtained a degree from ULL, with

honors, finishing second in her class. Thus, it is clear that Gail already has the

education and training to obtain part-time employment earning $12.00 per hour, as

she is clearly an intelligent and capable person. Accordingly, given the record on

Gail’s ability to work, we find that the trial court’s determination that Gail was fully

able to contribute $800.00 per month to her support is reasonable.

ISSUE PRESENTED FOR REVIEW NUMBER FOUR:

In her final issue presented for review, Gail contends that “the Lower Court

manifestly erred in granting [Marc] relief which was not sought, prayed for, or

pleadings expanded to include? i.e. Lower Court granting retroactive relief to [Marc]

by allowing full credit for payments made to Gail prior to final support being sought.”

We find these contentions lack credence.

These issues raised by Gail pose questions of law. Therefore, “we must

determine whether the trial judge correctly applied the proper legal standard or

standards.” Davy, 469 So.2d at 482.

Louisiana Revised Statutes 9:321 (emphasis added) states:

A. Except for good cause shown, a judgment awarding, modifying, or
revoking an interim spousal support allowance shall be retroactive to the
date of judicial demand.

B. (1) A judgment that initially awards or denies final spousal support
is effective as of the date 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.

C. Except for good cause shown, a judgment modifying or revoking a

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

D. Spousal support of any kind, except that paid pursuant to an interim
allowance award, provided by the debtor from the date of judicial
demand to the date the support judgment is rendered, to or on behalf of
the spouse for whom support is ordered, shall be credited to the debtor
against the amount of the judgment.

E. In the event that the court finds good cause for not making the award
retroactive to the date of judicial demand, the court may fix the date on
which the award shall commence.

F. A judgment extinguishing an obligation of spousal support owed to
a person who has cohabited with another person of either sex in the
manner of married persons shall be retroactive to the date of judicial
demand.

Gail first asserts that the trial court’s addendum to the ruling and judgment on

final spousal support was not proper because its issuance was never requested of the

trial court. We find this assertion misguided.

The trial court, in its initial judgment, failed to credit Marc for his voluntary

payments to Gail. Had the initial judgment stood as originally issued, it would have

been improper because the trial court failed to consider Marc’s voluntary payments

to Gail. While it is true that Marc did not file any pleading or request to have this

credit granted to him, he need not do so, as the language of La.R.S. 9:321(D) is such

that it is mandatory for the trial court to consider voluntary payments made by one

spouse to another during the period of time between the date of judicial demand and

judgment on final spousal support. Thus, Gail’s argument that Marc must request this

credit in order to receive it is incorrect.

Moreover, the record indicates that this issue was raised both prior to and

during the trial. Thus, Gail’s complaint regarding the inability to elicit testimony

regarding this issue is unfounded. Gail was aware of La.R.S. 9:321(D) and had ample

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opportunity to testify regarding its application at trial.

Gail next asserts that, assuming it was proper for the court to render the

addendum, it was improperly done because it credited Marc for amounts he paid to

Gail prior to her demand for final spousal support. This assertion is unfounded.

The trial court issued the addendum to its ruling and judgment on final support

that stated “[Marc] is entitled to receive a credit for voluntary spousal support

payments made to [Gail] from July 31, 2009, the date of judicial demand for final

support, to the date [Marc] ceased making voluntarily [s.i.c.] payments in January

2010.” The language of the addendum is clear. Marc’s credit is for voluntary

payments made to Gail starting on the date of Gail’s judicial demand. This is exactly

the mandate of La.R.S. 9:321(D) that “[s]pousal support of any kind . . . provided by

the debtor from the date of judicial demand to the date the support judgment is

rendered . . . shall be credited to the debtor against the amount of the judgment.”

Therefore, there is no merit to Gail’s assertion that the addendum was improper

because it credited Marc for amounts he paid to Gail prior to her demand for final

spousal support.

Accordingly, both assertions raised in this issue presented for review are

without merit. Therefore, we find no error by the trial court in issuing the June 21,

2010 addendum.

CONCLUSION:

Gail presents four issues for review. We addressed each issue presented

finding no error by the trial court in its judgment. All costs of this appeal are taxed

to Leota Gail Wiley.

AFFIRMED.

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