Barlow v. Barlow
87 So. 3d 386
La. Ct. App.2012Background
- Ray filed for divorce with Sandra on December 7, 2006, and a Consent Judgment of Temporary Custody required Ray to deposit $500 every payday into Sandra's account and set a February 1, 2007 hearing on custody, support, and home issues.
- Sandra answered December 29, 2006 seeking joint custody, child support, domicile, and other relief; an order set a February 5, 2007 hearing, though a hearing record is unclear.
- Numerous post-judgment motions followed (contests to custody, contempt, and modification), including a May 2007 ex parte custody issue and a July 2007 consent judgment referencing mediation and testing.
- In 2009–2010, after recusal of two judges, a three-day hearing led to a June 7, 2010Reasons for Judgment awarding joint custody with Sandra as domiciliarly parent, child support of $690.81, and spousal support of $200; Ray was found in contempt for arrears and ordered to pay $5,649.18 in Sandra’s attorney fees as part of the arrearage proceedings.
- Ray appeals the judgment, arguing the December 7, 2006 consent judgment should be annulled for fraud or vice, the trial court erred in spousal support, improper calculation of support, and contempt/fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Annulment of the 2006 consent judgment for fraud/vice | Ray argues the judgment was procured by fraud/ill practice and seeks annulment under La.Code Civ.P. art. 2004 | Sandra contends there was no proof of fraud or lack of impartiality; inscriptions aligned with oral stipulations | No manifest error; no merit in annulment based on fraud or bias. |
| Final periodic spousal support for Sandra | Ray claims Sandra was not entitled to final spousal support due to fault | Sandra proved fault-free dissolution and need for support under Art. 111/112 | Court affirmed entitlement to final periodic spousal support for Sandra. |
| Calculation of Sandra's income/child support | Ray asserts Sandra’s income potential was underestimated (gifts, underemployment) | Record supports trial court’s consideration of actual/potential income per 9:315(C) and 9:315(C)(5) | No manifest error; court properly treated income and gifts; support sustained. |
| Contempt finding and attorney-fee award | Ray contends attorney-fees and contempt finding were improper | 9:375(A) authorizes attorney-fees on executory past-due support; contempt found for willful nonpayment | Affirmed contempt finding and award of $5,649.18 in attorney fees. |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (standard for reviewing factual findings; deference to trial court)
- Hawthorne v. Hawthorne, 676 So.2d 619 (La.App. 3 Cir. 1996) (custody determinations reviewed for abuse of discretion)
- Terry v. Terry, 954 So.2d 790 (La.App. 3 Cir. 2007) (free-from-fault requirement for final periodic spousal support)
- Gremillion v. Gremillion, 966 So.2d 1228 (La.App. 3 Cir. 2007) (context for deference to domestic-facts findings)
- Westbrook v. Weibel, 80 So.3d 683 (La.App. 3 Cir. 2011) (custody/support considerations; appellate review standard)
- State, Dep’t of Social Services v. Swords, 996 So.2d 1267 (La.App. 3 Cir. 2008) (standard for manifest error review in domestic relations)