Victoria L. Burns v. James M. Burns

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-128

VICTORIA L. BURNS

VERSUS

JAMES M. BURNS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. C-20095247
HONORABLE ANNE L. SIMON, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Laura L. Davenport
730 Jefferson Street
Lafayette, LA 70501
(337) 231-1397
ATTORNEY FOR PLAINTIFF/APPELLEE
Victoria L. Burns

J. Marshall Montgomery
802 Johnston Street
Lafayette, LA 70501
(337) 269-0083
ATTORNEY FOR DEFENDANT/APPELLANT
James M. Burns

COOKS, Judge

FACTS AND PROCEDURAL HISTORY

James M. Burns and Victoria L. Burns were divorced in a Massachusetts

family court on March 3, 2010, dissolving their March 23, 1991 marriage. There

were four children born of the marriage, three of whom were minors at the time of

divorce.

A notarized “Agreement” setting forth stipulated terms and conditions

governing child custody, child support and spousal support was appended to the

Judgment of Divorce. The Agreement set forth that each party was represented by

counsel in its creation, had the opportunity for full disclosure, and understood that

it would be enforceable as if a judgment had been entered.

Following the divorce, Victoria became a resident of Louisiana. The

children resided with her. James became a resident of Florida. On December 7,

2010, the Agreement was registered in the State of Louisiana. Victoria also filed a

Rule for Sole Custody of the minor children as well as a Motion for Contempt

against James for underpayment of alimony.

The parties stipulated that in the spring of 2011, Victoria began living with

her fiancé, Chad Newgebaver, until his sudden death a few months later. Due to

this cohabitation, James filed a Motion to Terminate Spousal Support on April 13,

2011. James argues La.Civ.Code art. 115 applied, which provides for the

extinguishment of spousal support upon a finding of cohabitation. James argued

the provision for Louisiana jurisdiction triggered the application of Louisiana law

calling for the extinguishment of spousal support based on Victoria’s cohabitation.

Victoria countered that the Agreement clearly provides for the modification of

spousal support only upon death or remarriage, both of which have not occurred.

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On October 7, 2011, the trial court issued a ruling on the Rule for Sole

Custody and the various motions involving spousal support. The trial court

granted Victoria sole custody of two of the three minor children. This portion of

the trial court’s judgment was not appealed.

As to James’ request for termination of spousal support, the trial court found

the fact that Victoria cohabitated with another man in the manner of married

persons for a few months in the spring of 2011 did not, under the terms of the

Agreement, terminate all spousal support. The fact that the issues between the

parties were being litigated in Louisiana did not require application of all

Louisiana law when the contract is clear and unambiguous. The trial court found

the Agreement was not ambiguous, was not against public policy, was the result of

the exchange of mutual considerations, and should be enforced as written, which

allowed for modification of spousal support only upon death or remarriage. The

trial court also held the Agreement provided that the alimony payments made by

James should be based on gross commissions from his employment rather than net

commissions.

James filed this appeal from the trial court’s judgment, asserting the

following assignments of error:

(1) the trial court erred in denying James’ Motion to Terminate
Spousal Support; and

(2) the trial court erred in finding that alimony payments
should be based on gross commissions rather than net commissions.

ANALYSIS

A trial court’s determination regarding final periodic support is subject to the

abuse of discretion standard of review. January v. January, 03-1578 (La.App. 3

Cir. 4/7/04), 876 So.2d 98.

I. Termination of Spousal Support.

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In his first assignment of error, James contends Victoria’s cohabitation with

her then fiancé required the termination of spousal support under Louisiana law.

Victoria argued a reading of the Agreement indicates it specifically provides that

Massachusetts law controls:

(11) This Agreement has been executed and completed in
Massachusetts and is a Massachusetts contract, and all matters
affecting the interpretation and the rights of the Parties hereunder,
shall be governed by the laws of the Commonwealth of
Massachusetts.

However, James points out that another section of the Agreement provides that

Louisiana law is to be applied to enforcement and/or modification:

(18) The Parties shall cooperate in having the State of
Louisiana adopt this Agreement as a Foreign Judgment so that it may
be enforced and or modified in the State of Louisiana.

James argues because the Agreement provides that it may be “enforced or

modified in the State of Louisiana,” it is clear that the application of Louisiana law

calling for the extinguishment of alimony upon cohabitation (La.Civ.Code art. 115)

is triggered. The trial court entertained this argument below, and determined that

simply because the issues between the parties are being litigated in Louisiana does

not require application of all Louisiana law when the contract between the parties

is clear and unambiguous. We agree.

The Agreement herein was a mutually agreed upon contract and is to be

interpreted according to contract law. As Victoria notes, the Agreement clearly

and unambiguously provides only two instances which allow for modification of

alimony – death or remarriage. Neither of those instances occurred herein.

We also note the trial court emphasized the contract should be enforced as

written, because “[t]o do otherwise would invalidate a part of the consideration

obtained by one party without taking into account the possible quid pro quo for

that consideration.” We agree with the trial court, and believed the contract should

be interpreted in accordance with the terms mutually entered into by the parties.

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James also argues, as he did below, that to enforce the Agreement as written

is contra bonos mores, a violation of the public policy of Louisiana. The trial court

in dismissing this argument, cited this Court’s opinion in Romero v. Romero, 509

So.2d 681 (La.App. 3 Cir. 1987), writ not considered, 512 So.2d 427 (La.1987),

wherein we reversed a trial court’s judgment terminating contractual alimony

based upon the wife living in open concubinage. In reversing the trial court, we

stated:

One reason given by the trial court for its decision was that a
construction of the contract that would require a man to pay alimony
to his ex-wife while she was living in open concubinage would render
the contract contra bonos mores. We disagree. Open concubinage is
contra bonos mores, but payment of alimony is not. Here we are
dealing with a contract the object of which is the payment of alimony
after divorce. . . . The contract does not call on either party to do
anything illegal or immoral. Therefore, the trial court’s conclusion
that the contract was contra bonos mores is clearly wrong.

Id. at 683

We agree with the decision in Romero, that while open concubinage may be

contra bonos mores, the payment of alimony under a contract is not. See also

Becker v. Becker, 94-1224 (La.App. 5 Cir. 5/5/95), 654 So.2d 1365, 1369, wherein

the court found “[t]he law does not equate marriage and concubinage in any legal

sense” and found no merit in the argument that the “resolutory condition of

remarriage [was] fulfilled” by the choice to live in open concubinage.

Likewise, in Crumling v. Crumling, 628 So.2d 1194 (La.App. 3 Cir.1993),

the parties entered into a stipulation for payment of alimony which was

incorporated by reference into the judgment of divorce. Later, Mr. Crumling

brought a rule to have the alimony payments reduced, alleging several changes in

circumstances pursuant to La.Civ.Code art. 112. This court noted that in Romero,

the stipulations for alimony “until death or remarriage” barred alimony

modifications on the basis of open concubinage, because it involved alimony

stipulations containing explicit guidance as to the duration of alimony payments.

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James argues La.Civ.Code art. 115 as presently written did not become law

until after the effective date of the contract at issue in Romero, thus it does not

apply here. However, the prior law in Romero was La.Civ.Code art. 160A(4)

(emphasis added) which provided that “[p]ermanent periodic alimony shall be

revoked if it becomes unnecessary and terminates if the spouse to whom it has

been awarded remarries or enters into open concubinage.” Thus, the same

prohibition existed at that time as it does now, it was merely previously styled open

concubinage as opposed to the present styling of cohabitation in the manner of

married persons. This change in wording provides no substantive change. This

court’s ruling in Romero that the stipulations for alimony “until death or

remarriage” bars any alimony modifications on the basis of one of the parties

living with another person is still the law of this circuit.

II. Calculation of Spousal Support.

James also assigns as error the trial court’s determination that the spousal

support calculation is to be based on gross rather than net commissions. We find

the trial court entertained the same arguments below that are presented on appeal,

and we adopt the trial court’s well-reasoned analysis as our own:

James M. Burns has paid his support based on 33% of his net
rather than gross commissions. This method of determining his
obligation has triggered Victoria L. Burns’ motion for contempt for
underpayment. To resolve this issue, the court is called upon to
interpret the Agreement.

Exhibit B of the Agreement provides for the payment of
alimony from commission earnings.

2. In addition to child support amount and subject to
provisions of Paragraph 4 below, the Husband shall pay
to the Wife, as alimony, 33% of any commissions earned
through his employment at Oracle or other employment.
Alimony derived from commission payments shall be
paid within 10 days of the close of each quarter (i.e.
March 31, June 30, September 30 and December 31).

The court is of the opinion that the provision is clear. The Agreement
provides for payment of 33% of commissions earned. The generally

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accepted meaning of earnings is gross rather than net. The provision
that follows, which uses the term payment, refers to the time of
transfer of the amount due to the Wife.

Victoria L. Burns argues that substantive rights are determined
by the law of the place and that is the law of Massachusetts that
alimony is based upon gross income. See Wooters v. Wooters, [74
Mass.App.Ct. 839, 911 N.E.2d 234 (2009)]. James M. Burns
disagrees with that interpretation of Massachusetts law. This court
does not believe it necessary to determine the law of Massachusetts
because interpretation of the contract is clear from its terms,
specifically the use of the word earned in exhibit B, paragraph 2.

In addition to the generally accepted meaning of the word
earned, there is additional support for the position of Victoria L.
Burns. Nowhere in the Agreement is there any reference to net rather
than to gross income. See for example the following:

5. Each Party shall furnish the other with reasonable
documentation to confirm the gross amount of any
earned income. . .
6. The Parties agree that if the Husband receives any
gross income from Continental Resources through his
former partnership. . .
7. The Parties agree that an annual accounting shall be
done by Chuck Swartz with respect to any gross income
the Husband receives from Advanced Technology
Solutions and/or Continental Resources.

If the intention was for the calculation to be made from net payments,
there should be some recitation of the deductions to be taken to
determine that amount. There is none.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All

costs of this appeal are assessed against appellant, James M. Burns.

AFFIRMED.

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