Leslie Renee Boagni Elsbury v. Ernest Ray Elsbury, IV

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-720

LESLIE RENEE BOAGNI ELSBURY

VERSUS

ERNEST RAY ELSBURY, IV

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20172013
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Candyce G. Perret,
Judges.

AFFIRMED.

Alfred Frem Boustany, II
Post Office Box 4626
Lafayette, LA 70502
(337) 261-0225
COUNSEL FOR PLAINTIFF/APPELLANT:
Leslie Renee Boagni Elsbury

Leslie Renee Boagni Elsbury
In Proper Person
5042 North University Avenue
Carencro, LA 70520
(337) 224-0317
COUNSEL FOR PLAINTIFF/APPELLANT:
Leslie Renee Boagni Elsbury

Jack Derrick Miller
Post Office Drawer 1650
Crowley, LA 70526
(337) 788-0768
COUNSEL FOR DEFENDANT/APPELLEE:
Ernest Ray Elsbury, IV

Matthew H. Long
Law Office of Jack Derrick Miller
415 North Parkerson Avenue
Crowley, LA 70527-1650
(337) 788-0768
COUNSEL FOR DEFENDANT/APPELLEE:
Ernest Ray Elsbury, IV

Nicole B. Breaux
Attorney at Law
415 North Parkerson Avenue
Crowley, LA 70526
(337) 783-0888
COUNSEL FOR DEFENDANT/APPELLEE:
Ernest Ray Elsbury, IV

PERRET, Judge.

In this divorce action, Leslie Boagni-Elsbury (“Leslie”) appeals a trial court

judgment that granted her interim spousal support in the amount of $500.00 per

month. For the following reasons, we affirm.

FACTS:

Leslie and Ernest Elsbury (“Ernest”) were married on November 18, 2001.

There were no children born of their marriage, although Leslie had one child from a

previous relationship. On April 6, 2017, Leslie filed a petition for divorce wherein

she requested interim periodic spousal support. Leslie and Ernest were judicially

divorced on November 30, 2017, and, after a hearing on December 18, 2018, Leslie

was found legally free from fault for the divorce.

A Hearing Officer Conference was held on August 9, 2017, and, after hearing

all of the facts and testimony, the Hearing Officer recommended that Leslie be

awarded spousal support in the amount of $400.00 per month. On August 14, 2017,

Leslie filed an objection to the interim spousal support recommendation.

On May 31, 2019, a trial was held on the issue of interim spousal support.1

After hearing the parties’ testimony, the trial court provided the following oral

reasons for awarding Leslie $500.00 a month in interim spousal support:

I am leaning towards finding that the claiming spouse [Leslie]
has proven that she lacks sufficient income to maintain the standard of
living she enjoyed during the marriage, prior to separation, and that
[Ernest] has the ability to provide support for the interim.

I am thinking that, while [Leslie] was not fully employed at the
time of the hearing, I mean, I understand that she was bringing in about
$250 a week for providing care for her mom, who needed it. She did
have the ability to earn an income, because she had previously worked
as an insurance agent and made a good living at one point.

But as we got closer to the separation in time, she was only
bringing in about $35,000 a year. One of the problems with her being

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On the morning of trial, Leslie agreed to dismiss her permanent support claim.

able to earn at the time of the separation was that she had lost her
appointment with AIG and she didn’t have the immediate resources
necessary in order to support her career as an insurance agent.

I heard a lot about having that money there, available cash as well
as an office and a laptop and all these other things. But the main skill
that she needed as an insurance agent was not obsolete and was still of
use to her, although she chose to focus her time and attention on her
mother -- on her mom, which is very admirable, her mom’s welfare.

I think that it is looking, from what I saw today, her expenses
probably averaged about $3,500 a month at the time of the separation.
And had she been working as an insurance agent, she probably would
have been bringing in close to $3,000, making a difference of $500.
And I am inclined to award interim support of $500 to make up the
difference.

So if y’all want to argue about that before I make my final ruling,
I will be more than happy to entertain argument at this time. But
looking at the evidence and what’s been presented to me -- I mean, I
know that she had the ability to work. But I am worried that she didn’t
have the readily resources available. So I think she deserves something.

....

For the record, I hereby find that the claimant spouse, [Leslie],
has proven that she lacked a sufficient income to maintain the standard
of living that she enjoyed during the marriage, until the -- just prior to
the separation.

I find that [Leslie] was not fully employed at the time of the
separation because, even though she was a licensed insurance agent, all
of her employment efforts were being put towards the care of her
mother, where she earned about an average of $250 a week.

[Leslie] -- this Court does find that [Leslie] did previously work
as an insurance agent, with the ability to earn a nice amount towards
living, but near the time of separation was only bringing in about
$35,000 a year.

Due to her losing her appointment with AIG and not having the
necessary resources immediately available to her at the time of the
separation to be able to immediately go back to work as an insurance
agent, I hereby find that she is entitled to some relief and that would be
the difference of her income -- her average income and her expenses.
So I hereby find that she had the potential to make income of
[$]3,000 a month, her expenses were [$]3,500 a month as an average,
and find that the interim support of $500 is sufficient in this case.

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On June 20, 2019, the trial court issued a signed judgment in favor of Leslie,

and against Ernest, ordering Ernest to pay “interim spousal support in the amount of

$500.00 per month, commencing on April 6, 2017, the date of judicial demand,

subject to a credit for any sums previously paid, with legal interest on each sum due

from the date each installment became due until paid, and all court costs.” Leslie

now appeals this judgment.

STANDARD OF REVIEW:

In a divorce proceeding, a “court may award an interim periodic support

allowance to a spouse based on the needs of that spouse, the ability of the other

spouse to pay, and the standard of living of the spouses during the marriage.” Evans

v. Evans, 49,160, p.3 (La.App. 2 Cir. 6/25/14), 145 So.3d 1093, 1094. “In

determining an award of interim spousal support, the trial court is vested with wide

discretion, which will not be disturbed absent a clear abuse of that discretion.”

Piccione v. Piccione, 01-1086, pp. 8-9 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, 432.

“Encompassed within this ‘wide discretion,’ is the ability of the trial court to

examine a spouse’s entire financial condition, which is not limited only to income,

but also any resource from which the wants of life can be supplied, including a

spouse’s earning capacity.” Smoloski v. Smoloski, 01-0485, pp. 4-5 (La.App. 3 Cir.

10/3/01), 799 So.2d 599, 602.

DISCUSSION:

On appeal, Leslie argues that the trial court erred in awarding interim spousal

support in the amount of $500.00 per month and that she “should have been awarded

at least [$]2,000.00 of interim spousal monthly[.]” In response, Ernest alleges that

Leslie failed to produce any evidence of her monthly expenses and that she benefited

from the trial judge’s “determination of her monthly income and/or earnings

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potential at $3,000.00 per month, as the record supports an amount of monthly

income much higher.”

This court discussed the purpose of interim spousal support in Derouen v.

Derouen, 04-1137, pp. 3-4 (La.App. 3 Cir. 2/2/05), 893 So. 2d 981, 984 (internal

citations omitted), which states, in pertinent part:

The Louisiana Civil Code’s regulations on interim spousal
support are “designed to assist the claimant spouse in sustaining the
same style or standard of living that he or she enjoyed while residing
with the other spouse, pending the litigation of the divorce.” A spouse’s
right to claim interim periodic support “is grounded in the statutorily
imposed duty on spouses to support each other during marriage, and
thus, provides for the spouse who does not have sufficient income for
his or her maintenance during the period of separation.” Interim
support preserves parity in the levels of maintenance and support, and
avoids “unnecessary financial dislocation until a final determination of
support can be made.”

In awarding interim spousal support, the trial court is guided by La.Civ.Code

arts. 111 and 113. Louisiana Civil Code Article 111 provides the following:

In a proceeding for divorce or thereafter, the court may award
interim periodic support to a party or may award final periodic support
to a party who is in need of support and who is free from fault prior to
the filing of a proceeding to terminate the marriage in accordance with
the following Articles.

At the time Leslie filed for interim spousal support in 2017 , Louisiana Civil Code

Article 113 read as follows: 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

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In 2018, the legislature amended and simplified La.Civ.Code art. 113, which now reads:

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 but only 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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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.

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.

At the interim support hearing, Craig Lebouef, an expert in accounting,

testified that, according to the tax returns, Ernest’s 2016 “adjusted gross income was

$82,235[,]” and in 2017, “his adjusted gross income was $86,539.” Mr. Lebouef

also testified that Leslie’s 2016 tax return indicated that her “adjusted gross income

was $30,460[,]” and that “[h]er total income in [20]17 was $11,580.”

Ernest testified at trial that he has a degree in chemical engineering and that

throughout his marriage, he worked as a chemical engineer and a consultant. Ernest

testified that his average income during the seventeen years he was married to Leslie

was between “seventy-two to eighty-four” thousand dollars a year.

Leslie testified that she does not have a college degree but that she received

her “insurance C license in 2002[.]” Leslie testified that she started working as an

insurance agent in 2002 and that she made the most money from “2005 through

2009, ’10, maybe ’11” as a sales manager. Leslie testified that she was making about

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$100,000.00 a year at the peak of her insurance career and that she and Ernest

together were making about $200,000.00 per year. Leslie testified that the insurance

industry began to slow down in 2013-14, and that she began working primarily out

of the home around that time. In 2015, Leslie testified that she began taking care of

her mother, who was recovering from a hip replacement, and that her salary for that

year dropped to $30,195.00. In early 2017, Leslie testified that her mother had a

stroke and that she became the primary caregiver of her mother, which caused her

to work even less. Leslie testified that she was paid $250.00 per week for taking

care of her mother.

Leslie filed for divorce on April 6, 2017, and testified that she was served with

a protective order two weeks later. Because of the protective order, Leslie testified

that she and her seventeen-year-old son were forced out of the family home without

clothes, computers, or money. After being evicted from the home, Leslie described

that point of her life as living in “survival mode” and that she was not maintaining

the style of life she had been accustomed to living while with Ernest. Leslie

described her life after the eviction from the family home as follows:

Q. -- after you were evicted from your house, did you have any
money?

A. No. I had nothing.

Q. Could you go back to the insurance industry and work?

A. No. I didn’t even have clothes. I was wearing my son’s
clothes.

Q. Did anyone ever give you – I’m sorry. Did you have access to
that computer that was in Mr. Elsbury’s [home] office?

A. No.

Q. Did you have access to some kind of laptop that you could
work off of?

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A. No.

Q. Did you -- did you have – let’s talk about -- in the Air B&Bs
that you were staying at, did you have Internet access at all of them?

A. No.

Q. So was it possible to work like you did when you were in Mr.
Elsbury’s house?

A. Definitely not.

On cross-examination, Leslie testified that she is still an independent

insurance agent but that she is currently unemployed. Leslie testified to her earnings

from 2002-2016 and her W-2s were submitted into evidence. Specifically, Leslie

testified as follows:

Q. Ms. Boagni [Leslie], would you agree that, in 2005, you earned
$125,693.02?

A. Probably so.

Q. And in 2006, you earned $113,634.72?

A. That’s probably right.

Q. And in 2007, you earned $105,647.72?

A. That is right.

Q. 2008, you earned $94,043.97?

A. What year, 2008?

Q. 2008, yes.

A. Yes. That’s right.

Q. You would agree? 2009, you earned $130,769.53?

A. Correct.

Q. 2010, you earned $100,519.05?

A. Correct.

Q. 2011, you earned $116,187.78?
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A. Correct.

Q. 2012, you earned $68,846.47?

A. Yes. That’s when I moved up to a higher position. That is
correct.

Q. Okay. In 2013, you earned $97,777.86?

A. Correct.

Q. In 2014, you earned $80,392.38?

A. It sounds right.

Leslie also agreed that “Mr. Elsbury [Ernest], through [his counsel], offer[ed]

[her] numerous dates and numerous times to be able to get [her] personal belongings

and [that she] never retrieved them[.]”

The trial court, in the reasons for judgment, found that Leslie had the potential

to make income of $3,000.00 a month as an insurance agent, and that based on the

evidence presented, she had monthly expenses in the amount of $3,500.00. Without

more evidence in the record, we find the trial court was well within its discretion in

arriving at these figures for Leslie’s potential income and her expenses. Thus, we

find that the record supports the findings of the trial court and that given the

applicable standard of review, and the deference that must be given to factual

determinations made by the trial court, there was no clear abuse of discretion in

awarding Leslie interim support of $500.00 per month.

For these reasons, we affirm the June 20, 2019 judgment awarding Leslie

interim spousal support in the amount of $500.00 per month. Each party is to pay

their own costs on appeal.

AFFIRMED.

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

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