Ella Walker Johnson v. Glenn R. Johnson, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-1001

ELLA WALKER JOHNSON

VERSUS

GLENN R. JOHNSON, SR.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 124282
HONORABLE LORI A. LANDRY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and John E. Conery, Judges.

REVERSED AND RENDERED.

Dean J. Guidry
Attorney at Law
P. O. Box 5255
Lafayette, LA 70502
(337) 266-2250
COUNSEL FOR PLAINTIFF/APPELLANT:
Ella Walker Johnson

Glenda Maria August
Attorney at Law
129 West Pershing St.
New Iberia, LA 70560
(337) 369-7437
COUNSEL FOR DEFENDANT/APPELLEE:
Glenn R. Johnson, Sr.

GREMILLION, Judge.

The plaintiff/appellant, Ella Walker Johnson, appeals the trial court’s

judgment terminating interim and permanent spousal support. For the following

reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Ella filed for divorce from the defendant/appellee, Glenn Johnson, Sr., on

April 10, 2014. Following an August 2014 conference, the hearing officer

recommended that Glenn pay interim periodic support in the amount of $1,300.00

per month, retroactive to the date of demand. The hearing officer’s

recommendations were adopted as the final judgment of the trial court on September

11, 2014.

On October 17, 2014, Ella filed a “Motion and Order for Rule for Judgment

of Past Due Alimony, Contempt, and Attorney Fees” claiming that Glenn was in

arrears for $8,450.00 for failing to pay support from April 2014 through October

2014. A hearing officer conference took place in November 2014. The hearing

officer’s recommendations found Glenn in arrears in the amount of $6,760.00, and

in contempt for failing to comply with the court order to maintain Ella’s auto

insurance. The hearing officer sentenced Glenn to thirty days in jail but suspended

the sentence if certain financial conditions were met. Glenn and Ella both filed

objections to the hearing officer’s recommendations. Thereafter, Glenn filed a rule

to show cause why divorce should not be granted. A judgment of divorce was

granted and signed on February 4, 2015.

On March 23, 2015, Ella and Glenn entered into a “Consent Judgment,”

whereby Glenn was subject to an income assignment order in the amount of

$1,200.00 per month “for the payment of the interim spousal support obligation.”1

The consent judgment suspended the thirty-day sentence imposed on Glenn for

contempt. It also included other conditions Glenn had to meet in order to make his

past due arrearages current.

On June 13, 2018, Glenn filed a “Rule for Termination or Reduction of

Spousal Support Payments to Ella Walker Johnson” due to job loss and a significant

reduction in his monthly pay beginning in December 2016. Glenn prayed that “the

payments for spousal support, previously ordered on March 23, 2015 . . . be

eliminated; and, alternatively, that the amounts which Mover has been ordered to

pay be eliminated or substantially reduced.”

Following a July 24, 2018 conference, the hearing officer made certain

findings of fact including that:

1. Plaintiff seeks final periodic spousal support. Defendant seeks
to terminate the interim periodic spousal support, and he also submits
that Plaintiff does not need final periodic spousal support and/or that he
cannot afford to pay it.

2. The Hearing Officer notes that the finding and
recommendations herein are strictly limited to whether Plaintiff has a
need for final periodic spousal support, and whether Defendant has the
ability to pay same[.]

The hearing officer’s recommendation was that Glenn pay $300.00 per month

in “final periodic support.” Both parties objected to the hearing officer’s

recommendation.

The rule was set for August 6, 2018, to set the matter for trial on the merits.

However, according to the reasons for ruling, the trial court had a light docket that

day and heard testimony from the parties and ordered that assorted paperwork be

sent to the trial court. Ella’s counsel objected. On October 10, 2018, the trial court

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The “Consent Judgment” states that “THIS MATTER came before the court on December
17, 2014 on the plaintiff’s Motion for Contempt.”
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rendered judgment terminating interim spousal support retroactive to February 4,

2015, on the basis that the divorce decree terminated interim spousal support and

ordered that all wage assignments cease immediately.

A hearing was scheduled for December 13, 2018, to discuss credits and/or

arrearages, however that has been delayed pending the appeal.

Ella assigns as error:

1. The trial court and Plaintiff-in-rule failed to give notice to
Defendant-in-rule in a procedurally timely manner that the issue of
retroactive termination of a consent judgment incidental to a contempt
proceeding was at issue in violation of Article I, Sec. 2 of the Louisiana
Constitution which guarantees every citizen the right not to be deprived
of his property without due process of the law.

2. The trial court summarily, sue [sic] sponte, ruled on a cause of
action for reimbursement based on a consent judgment incidental to a
contempt proceeding, which cause of action is founded in unjust
enrichment under La.C.C. Art. 2298, was not plead and cannot be
adjudicated in a summary proceeding under La.C.C.P. Art. 2592, much
less from the bench without a hearing.

DISCUSSION

The trial court’s written reasons for judgment summarize some of the

procedural irregularities in this case (citation omitted):

A review of the Hearing Officer Recommendation clearly identifies the
Rule for Termination or Reduction of Spousal Support as the
proceeding before him on July 24, 2018. However, the hearing officer,
inexplicably, expanded the pleadings in his handling of this matter as a
request for final periodic support. Additionally, the hearing officer
recommendation is silent on any agreement by the parties to expand
these proceedings.

The fact that neither party objected to this expansion of the
proceedings, does not allow this court to do the same. As such, the
court will address the [sic] only interim spousal support as it was the
only matter properly before the court on August 6, 2018. The review
of the court record was initially at issue to trace the original judgement
of spousal support to clear up the difference in amounts. A review of
the entire official record produced one judgment of spousal support.
That is the judgment ordering Mr. Johnson to pay interim spousal
support to Ella Walker Johnson. It is the same judgment Mr. Johnson
sought relief from in his recent filing. The only mention of “final
support” was in Ella Walker Johnson’s original petition for divorce.
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Although mentioned, no action was ever taken to request or set final
spousal support for hearing. As such, the matter before the court is the
termination of interim spousal support for reasons stated herein.

The Hearing

The trial court addressed its decision to have a hearing on the rule date wherein

the parties would normally set the matter for a hearing date:

The parties presented for the stated rule day without a need for interim
orders but were having difficulty agreeing upon a merits day. As all
parties were in court and the rule day was very light, the court offered
to hear the matter. Mr. Guidry, attorney for Ella Walker Johnson,
objected to going forward because he wanted to subpoena his client’s
nephew. After hearing his objections and the reason for the testimony,
the court agreed to allow the witness to testify, if needed, at a later date.
The court also considered Mr. Johnson’s desire to move forward and
the financial hardship; the presence of both parties; the inability of the
parties to agree to another date and judicial economy before moving
forward on August 6, 2018. The court requested supplemental
documentation from the parties, and the matter was fully submitted on
August 27, 2018.

Based on our findings below, the assignment of error relating to the trial

court’s failure to hold a full hearing is rendered moot.

Interim Spousal Support

Louisiana Civil Code Article 113 was amended effective August 1, 2018,2 but

at the time of the order in question, it read (emphasis added):

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.
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The legislature simplified Article 113, which now reads (emphasis added):

A. Upon motion of a party, the court may award a party interim spousal support
based on the needs of that party, the ability of the other party to pay, any interim or
final child support obligation, and the standard of living of the parties during the
marriage. An award of interim spousal support shall terminate one hundred eighty
days from the rendition of a judgment of divorce, except that the award may extend
beyond one hundred eighty days for good cause shown.

B. An obligation to pay final periodic support shall not begin until an interim
spousal support award has terminated.
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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.

C. Notwithstanding Paragraph B of this Article, if a claim for final
spousal support is pending at the time of the rendition of a judgment of
divorce pursuant to Article 103(4) or (5) and the final spousal support
award does not exceed the interim spousal support award, the interim
spousal support award shall thereafter terminate no less than one
hundred eighty days form the rendition of judgment of divorce. The
obligation to pay final spousal support shall not begin until after an
interim spousal support award has terminated.

Consent Judgment

The consent judgment of March 2015 stated that, “This withholding shall

continue until modified or terminated by the Court[.]”

A consent judgment is a bilateral contract which is voluntarily
signed by the parties and accepted by the court. Durfee, 44,281, p. 4,
12 So.3d at 987–988. (Citations omitted.) It has binding force from the
voluntary acquiescence of the parties. Id. A contract is unlawful when
the enforcement of the obligation would produce a result prohibited by
law or against public policy. Id.

Whether the amount of spousal support awarded through a
consent judgment can be modified depends upon the language
employed in the consent judgment. Ray v. Ray, 2005–0873, p. 5
(La.App. 1 Cir. 3/23/07), 960 So.2d 174, 178. To bar modification of
the duration and/or amount of spousal support, the consent judgment
must evidence clear intent of the parties to do so. Id.

Gebhard v. Gebhard, 10-1412, p. 6 (La.App. 4 Cir. 2/16/11), 60 So.3d 717, 721. See

also Pellerin v. Pellerin, 17-946 (La.App. 3 Cir. 6/6/18) 249 So.3d 77. We find the

consent judgment, which was voluntarily entered into by the parties, satisfied the

good cause shown requirement of Article 113(B). The consent judgment served to

extend the obligation of interim spousal support beyond that period provided for by

operation of law. Pellerin, 249 So.3d 77.

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It is clear from the pleadings that Glenn never had any intention to

retroactively void the payments he had made to Ella for the previous three years

pursuant to the consent judgment because Glenn’s motion was for a reduction and/or

termination of the payment going forward due to decreased income. He did not

plead for retroactive reimbursement from the date of divorce. The consent judgment

remained in effect between the parties at the time the trial court rendered its

judgment. Accordingly, we reverse the trial court’s judgment terminating the

interim spousal support award retroactive to February 4, 2015, the date the divorce

was final.

In the interest of judicial economy, we are able to render judgment based on

the record in evidence. We find the interim spousal support award terminated on the

date the trial court rendered judgment, October 10, 2018, based on the evidence in

the record that Glenn’s pay had been substantially reduced and Ella began receiving

payments from the Social Security Administration in January 2018.

Final Support

With the matter of interim spousal support disposed of, we are left with the

issue of final support. From the record, it can only be determined that the hearing

officer made recommendations as to final support “pursuant to a Rule for

Termination or Reduction of Spousal Support Payments to Ella Walker Johnson.”

A party must specifically plead for final support; a general prayer for relief is

inadequate. Holly v. Holly, 18-207 (La.App. 3 Cir. 9/26/18), 255 So.3d 1158.

Because final support was not specifically pled for by Ella, the hearing officer’s

recommendation of $300.00 in final support is a nullity. We note, however, that Ella

does not forfeit her right to assert a claim for final support even if the divorce has

been granted. See Dubourg v. Parisy, 291 So.2d 441 (La.App. 4 Cir. 1974) and

Scott v. Scott, 579 So.2d 1094 (La.App. 2 Cir. 1991).
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CONCLUSION

The judgment of the trial court terminating interim spousal support

retroactively to the date of the judgment of divorce is reversed. Interim spousal

support is terminated effective October 10, 2018. The hearing officer’s

recommendation of $300.00 in final support is a nullity. Costs of this appeal are

shared equally between the parties.

REVERSED AND RENDERED.

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