Calvin Holly, Jr. v. Jon'a G. Holly

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-207

CALVIN HOLLY, JR.

VERSUS

JON’A G. HOLLY

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CATAHOULA, NO. 28,364
HONORABLE JOHN C. REEVES, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

REVERSED IN PART; AFFIRMED AS AMENDED.

Joseph A. Boothe
Smith, Tallaferro & Purvis
Post Office Box 298
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR DEFENDANT/APPELLEE:
Jon’A G. Holly

Brandy McClure
Post Office Box 665
Jonesville, LA 71343
(318) 339-7337
COUNSEL FOR PLAINTIFF/APPELLANT:
Calvin Holly, Jr.

AMY, Judge.

This appeal arises from a divorce proceeding. The trial court ordered the

husband to pay interim spousal support to the wife and ordered that the interim

spousal support award continue for one hundred eighty days post-judgment of

divorce or until a final ruling on the issue of permanent spousal support.

Thereafter, the husband filed a motion for new trial regarding the continuation of

the interim spousal support, and the motion was denied. The husband now

appeals. For the following reasons, we reverse in part and affirm as amended.

Factual and Procedural Background

On September 25, 2005, Calvin Holly, Jr., and Jon’a G. Holly were married.

Mr. Holly filed a Petition for Divorce and Ancillary Matters on March 3, 2016.

Ms. Holly answered and filed a reconventional demand, in which she requested

interim spousal support and stated: “[Ms. Holly] reserves all rights to bring other

actions incidental to divorce.” The trial court ordered Mr. Holly to pay interim

spousal support to Ms. Holly retroactive to the date of the filing of the Petition for

Divorce. On September 26, 2016, Mr. Holly filed a “Rule to Show Cause Why

Divorce Judgment Should Not Be Granted Under Civil Code Article 102,” in

which he also requested “that interim spousal support be terminated upon the

Judgment of Divorce.” On December 2, 2016, Ms. Holly filed a “Rule for

Contempt for Non Payment of Interim Spousal Support,” asserting that “[Mr.

Holly] has not paid interim spousal support . . . for the time period of October,

November and December 2016 and is in arrears . . . as of December 2, 2016.”

The trial court issued a judgment of divorce on December 8, 2016.

Subsequently, on February 24, 2017, the trial court issued a judgment concerning

Ms. Holly’s Rule for Contempt, stating, in pertinent part:

[T]he prior Judgment ordering payment of interim spousal support by
CALVIN HOLLY, JR., to JON’A G. HOLLY . . . shall continue in
full force and effect until the lapse of 180 days from the date of the
Judgment of final divorce; i.e., 180 days from December 8, 2016, or
until a final ruling is made by this Court on the issue of permanent
spousal support.

Thereafter, Mr. Holly filed a motion for new trial. In a supporting memorandum

and citing La.Civ.Code art. 113, Mr. Holly argued: “Because Ms. Holly did not

request permanent spousal support and because Mr. Holly has requested that

spousal support be terminated, spousal support should be terminated at the latest at

the rendition of the judgment of divorce.” The trial court denied Mr. Holly’s

motion for new trial. Mr. Holly now appeals, asserting the following assignments

of error:

1. The trial court erred in its decision that interim spousal support
should be continued 180 days after the final divorce.

2. The trial court erred in its decision to deny the Motion for New
Trial.

Discussion

Mr. Holly argues that the trial court erred in ordering that Ms. Holly’s

interim spousal support award should continue one hundred eighty days after the

judgment of divorce. He argues that the interim spousal support award should

have terminated upon rendition of the judgment of divorce according to

La.Civ.Code art. 113 because “Ms. Holly did not make a request for permanent

spousal support in the Answer and Reconventional Demand, and she did not

request permanent spousal support in any other pleadings. There has never been a

request for permanent spousal support by Ms. Holly.” In a divorce proceeding, a

spouse’s right to claim interim spousal support is based upon the statutorily

imposed duty found in La.Civ.Code art. 98 that spouses are to support each other

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during marriage.1 Larson v. Larson, 16-695 (La.App. 5 Cir. 10/25/17), 229 So.3d

1043. In awarding interim spousal support, the trial court is guided by

La.Civ.Code art. 113, which provides, in pertinent part:2

A. Upon motion of a party or when a demand for final spousal
support is pending, the court may award a party an interim spousal
support allowance based on the needs of that party, the ability of the
other party to pay, any interim allowance or final child support
obligation, and the standard of living of the parties during the
marriage, which award of interim spousal support allowance shall
terminate upon the rendition of a judgment of divorce.

B. If a claim for final spousal support is pending at the time of
the rendition of the judgment of divorce, the interim spousal support
award shall thereafter terminate upon rendition of a judgment
awarding or denying final spousal support or one hundred eighty days
from the rendition of judgment of divorce, whichever occurs first. The
obligation to pay interim spousal support may extend beyond one
hundred eighty days from the rendition of judgment of divorce, but
only for good cause shown.

The trial court is vested with much discretion in determining an award of interim

spousal support, and its decision should not be disturbed on appeal absent an abuse

of that discretion. Loftin v. Loftin, 09-0795 (La.App. 3 Cir. 2/3/10), 28 So.3d 1274.

For example, in Larson, 229 So.3d 1043, during the course of divorce

proceedings, Ms. Larson filed a supplemental and amending petition, in which she

withdrew her request for final spousal support. Subsequently, a judgment of

divorce was granted, and the trial court awarded Ms. Larson interim spousal

support for a one hundred eighty day period following the date of the judgment of

divorce. Finding that the trial court had abused its discretion and was manifestly

erroneous in so ruling, the fifth circuit amended the judgment to reflect that Ms.

1
Louisiana Civil Code Article 98 provides: “Married persons owe each other fidelity,
support, and assistance.”
2
We note that La.Civ.Code art. 113 was amended by 2018 La. Acts No. 265, § 1.
However, because the effective date of this amendment is August 1, 2018 and the operative facts
of this case occurred before that date, we apply the version of La.Civ.Code art. 113 in effect
prior to the amendment.

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Larson’s interim spousal support ended on the date of the judgment of divorce,

explaining: “Ms. Larson did not have a motion for final spousal support pending at

the judgment of divorce, so her interim spousal support therefore terminated at the

rendition of the judgment of divorce[.]” Id. at 1051.

As discussed above, La.Civ.Code art. 113(A) provides that an “award of

interim spousal support allowance shall terminate upon the rendition of a judgment

of divorce.” Interim spousal support may continue past the rendition of the

judgment of divorce “[i]f a claim for final spousal support is pending at the time of

the rendition of the judgment of divorce[.]” La.Civ.Code art. 113(B). In her reply

brief to this court, Ms. Holly argues that the trial court did not err in ordering that

the award of interim spousal support should continue for one hundred eighty days

following the judgment of divorce or until final disposition of the issue of

permanent spousal support because there was a pending prayer for final spousal

support. To demonstrate that there was a pending prayer for final spousal support,

she cites the trial court’s May 20, 2016 order related to a rule to show cause, which

provides, in pertinent part: “Plaintiff-in-reconvention [Ms. Holly] further prays for

all such relief as law, equity or the nature of the case permit.” However, we find

no support for a determination that Ms. Holly’s general prayer for relief in her

reconventional demand constitutes a pending “claim for final spousal support”

under La.Civ.Code art. 113. Like in Larson, 229 So.3d 1043, our review of the

record indicates that Ms. Holly did not have a motion for final spousal support

pending when the trial court issued its judgment of divorce on December 8, 2016.

Thus, according to the language of La.Civ.Code art. 113, Ms. Holly’s interim

spousal support terminated upon the rendition of the judgment of divorce on

December 8, 2016. We conclude that the trial court abused its discretion in

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awarding Ms. Holly interim spousal support for a one hundred eighty day period

following the December 8, 2016 judgment of divorce.

Alternatively, Ms. Holly argues that, in Dubourg v. Dubourg, 291 So.2d 441

(La.App. 4 Cir. 1974), “[the fourth circuit] found that the wife’s right to final

spousal support was conferred by law (then-Louisiana Civil Code Article 160), and

is not dependent upon a claim being made or even reserved.” A review of that case

reveals it to be distinguishable from the case at hand. In Dubourg, Ms. Dubourg

filed a petition for permanent spousal support following the judgment of divorce.

In disposing of Mr. Dubourg’s plea of res judicata, the fourth circuit explained:

The wife’s right to alimony after divorce is conferred by LSA-
C.C. art. 160, provided she successfully bears the burden of proving
she was without fault in causing or contributing to the failure of the
marriage and that she has insufficient means of support. . . . There is
no requirement that the alimony must be sought nor the right thereto
reserved coincident with the rendition of the judgment of divorce.

....

[A] divorced wife does not forfeit her right to alimony by her failure
to assert it at the time of the rendition of judgment of divorce.

Dubourg, 291 So.2d at 443. Thus, the Dubourg case concerned whether a spouse

was entitled to final spousal support if that spouse failed to request it prior to a

judgment of divorce. Here, as the case is framed, the issue is whether interim

spousal support terminates upon the rendition of a judgment of divorce when there

is no pending claim for final spousal support.

In the alternative, Ms. Holly asserts that the case of Speight v. Speight, 03-

1152 (La.App. 3 Cir. 2/4/04), 866 So.2d 344, should control our decision. In that

case, the trial court ruled that Ms. Speight’s interim spousal support award

terminated on the date of the judgment of divorce. A panel of this court reversed,

stating: “The support should have continued in favor of Ms. Speight for one

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hundred eighty days[.]” Speight, 866 So.2d at 347. However, we find the analysis

in Speight inapplicable to the case at hand because that decision was based on an

earlier version of La.Civ.Code art. 113, as evidenced by the following excerpt:

Additionally, La.Civ.Code art. 113 (emphasis ours), states:

Upon motion of a party or when a demand for final
spousal support is pending, the court may award a party
interim spousal support allowance based on the needs of
that party, the ability of the other party to pay, and the
standard of living of the parties during the marriage,
which award of interim spousal support allowance shall
terminate upon the rendition of a judgment awarding or
denying final spousal support or one hundred eighty days
from the rendition of judgment of divorce, whichever
occurs first. The obligation to pay interim spousal
support may extend beyond one hundred eighty days
from the rendition of judgment of divorce, but only for
good cause shown.

Speight, 866 So.2d at 346.3 The version of La.Civ.Code art. 113 applied in Speight

differs from the version applicable to the facts of this case, which states that an

“award of interim spousal support allowance shall terminate upon the rendition of

a judgment of divorce.” (Emphasis added.) Thus, we disagree with Ms. Holly’s

assertion that Speight should control our analysis.

In his second assignment of error, Mr. Holly asserts that the trial court erred

in denying his motion for new trial. Louisiana Code of Civil Procedure Article

1972 provides, in pertinent part, that a new trial shall be granted when the

“judgment appears clearly contrary to the law and the evidence.” As discussed

above, the trial court’s decision to award interim spousal support to continue for

one hundred eighty days from the judgment of divorce is clearly contrary to

La.Civ.Code art. 113, which states that an “award of interim spousal support

3
We note that La.Civ.Code art. 113 was amended by 2003 La. Acts No. 1092, § 1, and
the Speight court appears to have applied the version of the article in effect prior to that
amendment.

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allowance shall terminate upon the rendition of a judgment of divorce.” Thus, we

agree with Mr. Holly that his motion for new trial should have been granted.

In sum, we conclude that the trial court abused its discretion in ordering that

the interim spousal support award be continued for one hundred eighty days after

the judgment of divorce. Further, we conclude that the trial court erred in failing to

grant Mr. Holly’s motion for new trial regarding the interim spousal support

award.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, insofar

as it ordered Calvin Holly, Jr., to pay interim spousal support to Jon’a G. Holly for

one hundred eighty days post-judgment of divorce. The judgment is amended to

reflect that the interim spousal support award paid by Mr. Holly to Ms. Holly

terminated upon the rendition of the judgment of divorce on December 8, 2016,

and the judgment is affirmed as amended. Costs of this appeal are assessed against

Jon’a G. Holly.

REVERSED IN PART; AFFIRMED AS AMENDED.

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