Julie O'Dell Carter v. James D. Carter

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1395

JULIE O’DELL CARTER

VERSUS

JAMES D. CARTER

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 209,595
HONORABLE GEORGE C. METOYER JR, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Eugene P. Cicardo, Jr.
Attorney at Law
P. O. Box 1128
Alexandria, LA 71309
(318) 445-2097
COUNSEL FOR PLAINTIFF/APPELLEE:
Julie O’Dell Carter

Brian K. Thompson
Attorney at Law
P. O. Box 13984
Alexandria, LA 71315
(318) 473-0052
COUNSEL FOR DEFENDANT/APPELLANT:
James D. Carter

PETERS, J.

In this spousal-support litigation, James D. Carter appeals aspects of the trial

court judgment reducing, but continuing a periodic spousal-support award in favor

of his former wife, Julie O’Dell Carter. His former wife answered the appeal,

asserting that the trial court erred in reducing her spousal-support award. For the

following reasons, we affirm the trial court judgment on the issues now before us.

DISCUSSION OF THE RECORD

James D. Carter (James) and Julie O’Dell Carter (Julie) were married in

Rapides Parish on July 5, 1982, and, of that marriage, two children were born:

Lanna Renae Carter (born 11/2/84) and William Douglas Carter (born 9/6/91).

Julie obtained a judgment of divorce based on the provisions of La.Civ.Code art.

103(2) on August 26, 2002, and four days later James and Julie entered into a

consent judgment addressing the support obligation. In that August 30, 2002

consent judgment, Julie obtained sole custody of the two minor children and James

was ordered to pay $950.00 per month in child support and $1,050.00 in spousal

support.1

The appeal now before us arises from a January 17, 2013 rule to show cause

filed by James, wherein he sought a judgment terminating his child and spousal

support payments and awarding him a money judgment for amounts he claimed to

have overpaid under the August 30, 2002 consent judgment. With regard to the

spousal support obligation, James asserted that because the consent judgment was

silent concerning whether that obligation was interim or final, it should have

terminated 180 days after the date of the judgment of divorce. He further argued

that he had paid child support past the date the two children born of the marriage

reached the age of eighteen years and that, as a result, he was entitled to recover
1
The consent judgment included other aspects of the litigants’ relationship including a
reassertion of the judgment of divorce. However, these other matters are not before us.

overpayments as well as all payments of spousal support paid after that obligation

terminated. In the event the trial court construed the spousal support award as

being final rather than interim, James argued in the alternative that the obligation

should be terminated based on the fact that Julie no longer needed the support.

Julie responded to this rule to show cause by filing one of her own. In her

rule to show cause, Julie sought to have James held in contempt of court for failing

to pay some monthly payments required by the August 30, 2002 consent judgment

and sought a money judgment for the amounts due under that judgment. In

addition to seeking an attorney fee award for pursuing her rule, Julie also asserted

that her spousal support obligation should be increased. In a separate pleading,

Julie asserted peremptory exceptions of res judicata and no cause of action, as well

as a motion to strike James’ rule.

The conflicting issues proceeded to trial on May 13, 2013, and, upon the

completion of the evidentiary phase, the trial court orally denied the request by

either party to modify the consent-support order, denied Julie’s rule for contempt

of court, and found that both the child and spousal-support obligations were

terminated retroactive to January 18, 2013. However, before a judgment could be

signed, counsel for Julie requested that the trial court provide written reasons for

its judgment.

This request resulted in a letter response from the trial court dated July 8,

2013, which reads in pertinent part:

Upon preparing written reasons for the above captioned matter,
this Court has discovered case law that supports the argument(s)
asserted by Mrs. Julie Carter. Pursuant to La. C.C.P. art. 1971
(granting of new trial), this Court will grant a Motion for New Trial to
all of the parties for re-argument only. Testimony will not be
considered at this hearing. As noted in the official revision comments
to La. C.C.P. art. 1971, the provisions in Article 1971, authorizing the
court to direct a new trial on its own motion, is a codification of the
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jurisprudence. It also follows the common law which gives the judge
discretion in determining the causes for which a new trial will be
granted. As such, this Court has determined that this matter shall be
reargued on the 5th day of August, 2013 at 9:30 a.m.

(Emphasis in the original)(footnotes omitted).

The actual argument occurred on July 22, 2013, and not August 5, 2013.2

After hearing the argument of both litigants, the trial court changed the particulars

of the judgment expressed in the May 13, 2013 hearing and issued a judgment

wherein it reduced James’ spousal support obligation to $500.00 per month

effective March 1, 2013; found James in arrears for the payment of spousal support

in the amount of $2,650.00 through July 31, 2013; and ordered that James pay the

arrearage in monthly payments of $250.00 beginning on August 1, 2013. The trial

court also granted Julie’s exceptions of res judicata and no cause of action, as well

as her motion to strike, but denied her attempt to have James held in contempt of

court. The trial court also denied James’ motion to have the spousal support

terminated. Finally, the trial court ordered that the cost of the litigation be divided

equally between the parties. The trial court executed a written judgment to this

effect on August 26, 2013. Thereafter, James perfected this appeal, and Julie

answered the appeal. Both the appeal and answer to the appeal address only that

part of the judgment related to the permanent spousal support award and the

assessment of cost.

In his appeal, James asserted the following assignments of error:

1. The Trial Court committed abuse of discretion when granting a
Motion for New Trial prior to the signing of a Judgment in accordance
with its ruling in Open Court on May 13, 2013.

2. The Trial Court committed manifest error in allowing the
Plaintiff/Appellee to include the expenses of an adult child to be co-

2
The record contains nothing to explain how or why the matter was scheduled for an
earlier date.
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mingled with her expenses for purposes of making a claim for
continued permanent spousal support.

3. The Trial Court committed manifest error in its factual
determinations based upon the fact that the Plaintiff/Appellee did not
carry her burden of proof that she was in necessitous circumstances
and in need of permanent periodic spousal support.

In her answer to the appeal, Julie asserted that the trial court erred in not

increasing the spousal support award or, in the alternative, in not leaving it at the

prior $1,050.00 per month level; and in not ordering James to pay all costs of the

litigation.

OPINION

James’ First Assignment of Error

In this assignment of error, James questions the actions of the trial court in

ordering the August 5, 2013 hearing to reargue the issues before the court.

Specifically, James argues that the trial court erred in granting a new trial when a

judgment on the May 13, 2013 findings had not yet been signed. We agree that a

motion for new trial was not the proper procedural vehicle for the trial court to

order a rehearing, but find this error to be harmless.

Basically, what occurred in this matter is that after the trial court entered its

oral reasons for judgment at the May 13, 2013 hearing, and before a judgment was

signed, the trial court changed its mind concerning the disposition. As stated in

VaSalle v. Wal-Mart Stores, Inc., 01-462, p. 5 (La. 11/28/01), 801 So.2d 331, 334,

“[i]t is well-settled that prior to final judgment a district court may, at its discretion

and on its own motion, change the result of interlocutory rulings it finds to be

erroneous.” Additionally, it is equally well settled that “[w]ritten reasons for

judgment are considered to be interlocutory rulings and do not carry the finality of

a judgment.” Davis v. Farm Fresh Food Supplier, 02-1401, p. 3 (La.App. 1 Cir.

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3/28/03, 844 So.2d 352, 354. “Prior to final judgment, a trial court may, at its

discretion, change the substance or the result of interlocutory rulings. If a disparity

exists between the judgment and the written reasons for judgment, the final

judgment is definitive.” Id.

This court addressed a similar factual situation in Bordelon v. Dauzat, 389

So.2d 820 (La.App. 3 Cir. 1980). In Bordelon, the trial court had decided a

previous matter involving the same litigants wherein Bordelon was the defendant

and Dauzat was the plaintiff and initially provided the litigants with written

reasons for judgment in favor of Bordelon. Before a final judgment could be

signed, Dauzat filed a motion for new trial. On the day the motion was to be heard,

the trial court did not receive any evidence on the motion. Instead, it rendered new

written reasons for judgment changing the substance of the prior written reasons to

the extent that the end result was a judgment in favor of Dauzat. After the trial

court executed a written judgment in favor of Dauzat, Bordelon did not appeal.

Instead, after some other procedural steps, he brought an action to annul the

judgment on the grounds of ill practice by the trial court. This court rejected that

action on appeal.

In Bordelon, this court recognized the fundamental difference between

written reasons for judgment and the final judgment itself, as set forth in La.Code

Civ.P. art. 1981. Additionally, this court noted that “where there are only written

reasons and no separate signed judgment, there is no final judgment” and that “[a]

trial judge may also sign a judgment based on written reasons which differ

substantially from previously stated oral reasons.”3 Id. at 822. Additionally, this

3
For further authority for the finding that a trial court may execute a judgment based on
reasons substantially different from prior reasons rendered, see Sanford v. Sandford, 468 So.2d
844 (La.App. 1 Cir. 1985), and Taylor v. Brandner, 05-970 (La.App. 5 Cir. 4/25/06), 928 So.2d
751, writ denied, 06-1571 (La. 9/29/06), 937 So.2d 869.
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court concluded that “[t]he fact that Dauzat erroneously filed an application for a

new trial before a final judgment was rendered has no effect on our result.

Procedures for motions for new trials and the granting of new trials do not apply

prior to the signing of judgment.” Id. In fact, “[a] motion for new trial filed before

the signing of a final judgment is premature and without legal effect.” Clement v.

Am. Motorists Ins. Co., 98-504, p.3 (La.App. 3 Cir. 2/3/99), 735 So.2d 670, 672,

writ denied, 99-603 (La. 4/23/99), 742 So.2d 886.

Bordelon also argued to this court that the failure of the trial court to hold a

hearing before changing its written reasons constituted an ill practice as that term is

used in La.Code Civ.P. art. 2004. Citing Sonnier v. Liberty Mutual Insurance Co.,

258 La. 813, 248 So.2d 299 (1971), and Borras v. Falgoust, 285 So.2d 583

(La.App. 4 Cir. 1973), writ denied 289 So.2d 161 (LA. 1974), cert. denied, 419

U.S. 854, 95 So.Ct. 97 (1974), as authority, this court pointed out that even had the

motion for new trial been properly before the trial court, “no absolute right to a

hearing exists.” Bordelon, 389 So.2d at 823.

Unlike the jurisprudence cited above, the reasons at issue in this matter are

oral rather than written. However, we find that this is a distinction without a

difference. The reasons expressed by the trial court are of an interlocutory nature

whether oral or written, and the substance of those reasons can be changed at any

time before a final judgment is signed. Additionally, the trial court could have

changed the substance of the reasons for judgment prior to executing a judgment

without giving any party to the litigation notice. The fact that it chose to allow a

second argument on the issues and erroneously couched the re-argument in terms

of a motion for new trial does not affect the outcome of the reconsideration. In fact,

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it provided James with a benefit not otherwise required. We find no merit in this

assignment of error.

Assignments of Error from both Litigants on the Issue of the Award

James’ remaining two assignments of error, as well as the first two of Julie’s

assignments, all relate to the spousal-support judgment. In his second assignment

of error, James asserts that the trial court erred in allowing Julie to include

expenses related to the support of their major son in her claim for a continued

award of spousal support. In his final assignment of error, he asserts that the trial

court erred in factually determining that Julie had carried the burden of

establishing that she was in such necessitous circumstances that she needed

continuation of the periodic spousal-support order. Julie, on the other hand, asserts

that the trial court erred in not increasing her spousal-support award or, in the

alternative, that the trial court erred in reducing it.

At the May 13, 2013 hearing, both litigants testified extensively on direct

and cross-examination concerning the particulars of their financial situation. Each

had the normal expenses that one might expect in maintaining themselves, and, as

is usually the case in these matters, there is not enough income between them to

meet all of the obligations they claim to have.

Julie’s testimony at the May 13, 2013 hearing established that at the time of

the divorce, she was working part time for a Rapides Parish law firm and grossed

$160.00 per week, or approximately $670.00 per month.4 Her affidavit of income

and expenses filed in conjunction with her testimony established that on May 13,

2013, she held the position of school cafeteria supervisor with the Rapides Parish

4
She testified that she worked four hours per day, five days per week, and was paid $8.00
per hour. Assuming that she worked the majority of the weeks in the year, this would equate to
approximately $670.00 per month gross income.

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School Board, earning a gross amount of $1,731.57 per month and, after

deductions, a net amount of $1,106.50 after $625.17 in deductions.5 The affidavit

then lists $4,216.04 in monthly expenses. Thus, the affidavit suggests that she

requires an additional $3,109.54 in spousal support just to meet her monthly

expenses.

Part of the listed expenses related to the fact that William Douglas (Douglas),

their twenty-one-year-old unemployed son, was living with her. Julie testified that

the listed expenses included all of the monthly living expenses for both her and her

son and that in addition to paying for all of the household expenses, she was also

paying for Douglas’ food, automobile expenses, cellular telephone, medical bills,

and medical insurance coverage. Additionally, she was repaying funds she had

borrowed for her educational expenses at Louisiana State University at Alexandria

at the rate of $445.00 per month.6

Julie also acknowledged in her testimony that in addition to spousal-support

payments, James had previously provided her with $4,000.00 for the purchase of a

new vehicle, $6,000.00 for her son’s dental care, and $2,500.00 to cover one-half

of the cost of a roof repair, as well as undisclosed amounts that she claims were to

cover the cost of books for their son. She also acknowledged that James provided

her approximately $3,500.00 around Christmas of each year from 2004 to 2009,

but that amount included the monthly spousal-support obligation.

James testified that at the time of the May 2013 hearing, he was employed

by Nabors Offshore and had worked for that company since August of 2006. At

5
The deductions included federal income tax ($49.25); Medicare tax ($20.93); state tax
($29.20); health insurance premiums ($288.17); two disability policies ($42.57); retirement
($138.53); life insurance ($53.50); and ASFSA dues ($3.02).
6
The student loans began to add up when she began her studies in 2009, and an exhibit
relative to this obligation reflected a principal balance of $48,955.00 with the first loan being
incurred in January of 2009, and the last loan incurred in February of 2013.
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the time of the hearing, he was grossing $8,107.00 per month, with a net take home

pay of $5,403.06. James’ income and expense affidavit did not itemize his

deductions from his salary, but itemized expenses totaling $3,596.06. However, he

did list as one of his expenses $165.00 per month for health insurance covering

Douglas. He did so because Julie had told him that she could no longer afford that

expense, and she never told him that she was still carrying him on her health

insurance. Additionally, much of his remaining expenses related to his travel to

and from work offshore.

According to James, he stopped making spousal-support payments in

November of 2012, because he and Julie had an agreement that he would continue

to help her financially until she completed school, and it was that month in which

she completed her education. Additionally, James asserted that he paid for a

number of other things over and above the spousal-support obligation and that he

did so to assist Julie when she called upon him.

One item not listed on his income and expense affidavit, but testified to by

James, involved approximately $100,000.00 in back taxes owed the United States

government, with approximately $60,000.00 of that amount originating before

2002. He testified that while he had not been paying on the debt, he had retained

the services of a consulting firm for the purpose of setting up a repayment plan.

According to James, the repayment plan calls for him to begin making monthly

payments beginning in June of 2013, at $500.00 and gradually increasing thereafter

to $2,100.00 per month in October of 2013.

Upon completion of the evidence on May 13, 2013, the trial court issued oral

reasons for judgment generally rejecting the relief requested by both litigants and

terminating the previous consent judgment relative to spousal support. However,

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as previously stated, after the July 22, 2013 argument, the trial court rendered

judgment reinstating periodic spousal support, but reducing the monthly payment

from $1,050.00 to $500.00 per month. 7 Neither litigant is satisfied with that

judgment.

Periodic spousal support after a judgment, whether it be classified as interim

or final, is provided for in La.Civ.Code art. 111, where the former spouse seeking

such an award is free from fault. It is not disputed that Julie was free from fault in

causing the divorce and, therefore, can pursue a judgment of periodic spousal

support. The factors to be considered in setting the amount of periodic spousal

support are found in La.Civ.Code art. 112, which provides:

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.

(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.

7
As previously stated, the judgment addressed a number of other issues, but none of
those issues are before us in this appeal.
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C. The sum awarded under this Article shall not exceed one-
third of the obligor’s net income.

Louisiana Civil Code Article 114 provides in pertinent part that “[a]n award of

periodic support may be modified if the circumstances of either party materially

change and shall be terminated if it has become unnecessary.” Additionally, as

recognized in Mizell v. Mizell, 40,601, p. 4 (La.App. 2 Cir. 1/25/06), 920 So.2d

927, 930, and the cases cited therein, “under Louisiana jurisprudence, the support

of a major child has no bearing in determining a spouse’s need for spousal

support.” When considering whether a change of circumstances has occurred

sufficient to warrant modification of a prior periodic spousal-support award, we

must give great deference to the decision of the trial court, and we will not distrust

that finding or a resulting award absent a finding of abuse of discretion. Vincent v.

Vincent, 11-1822 (La.App. 4 Cir. 5/30/12), 95 So.3d 1152.

The record before us does not contain a transcript of the August 5, 2013

hearing, nor does it contain any reasons for the trial court’s decision for changing

the prior interlocutory judgment. However, our review of the evidence presented

at the May 13, 2013 hearing establishes that a material change of circumstances

did occur in that the amount of money now available to both litigants versus their

income at the time of the original consent judgment is significantly different.

Additionally, there is no evidence to suggest that the trial court used Douglas’

expenses in reaching the decision. Giving great deference to the trial court’s ruling,

we find no abuse of discretion in its ruling on the periodic spousal-support issue.

Thus, we find no merit in any of these assignments of error.

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Julie’s Assignment of Error Concerning Cost of Court

The trial court divided the cost of court equally between James and Julie,

and Julie asserts on appeal that this is error. She asks us to assign all of the cost of

court to James.

A trial court is vested with great discretion in determining who
is liable for costs of court. The trial court may assess costs against any
party in the proportion it deems equitable, even against the party
prevailing on the merits. LSA-C.C.P. art. 1920; D.B. Orban Co. v.
Lakco Pipe, 496 So.2d 1382 (La.App. 3d Cir.1986). A trial court’s
assessment of costs can be disturbed only upon a showing of an abuse
of discretion. D.B. Orban, supra; Courtney v. Winn-Dixie Louisiana,
Inc., 447 So.2d 504 (La.App. 5th Cir.1984), writ denied, 449 So.2d
1359 (La.1984).

Greene v. Greene, 94-79, p. 4 (La.App. 3 Cir. 10/5/94), 643 So.2d 891, 894.

We find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment modifying the

periodic spousal-support obligation due Julie O’Dell Carter from James D. Carter

in all respects. We assess the cost of this appeal equally between Julie O’Dell

Carter and James D. Carter.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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