195 So. 3d 687
La. Ct. App.2016Background
- Nathan Gordon and Simone Gordon divorced in 2010; Simone filed a Rule to Establish Final Periodic Spousal Support in 2011.
- The parties entered a September 29, 2011 consent judgment: Nathan would pay $300/month as interim spousal support pending trial on final support.
- Nathan generally made the agreed payments for over three years; payments were made under the condition they were interim and pending trial.
- Simone never took the Rule to trial. On April 20, 2015 Nathan moved to dismiss the Rule for abandonment; the trial court granted the dismissal.
- Simone moved to set aside the dismissal; the trial court granted that motion and ordered Nathan to continue paying and to pay outstanding support. Nathan appealed.
- The appeals court found Nathan’s payments were conditional (pending trial) and therefore did not constitute an acknowledgment that would interrupt abandonment; Simone’s Rule was abandoned.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Simone's Rule to establish final periodic spousal support was abandoned under La. C.C.P. art. 561 | Gordon argued Simone abandoned the Rule by failing to take any step in prosecution for over three years, permitting dismissal. | Simone argued Gordon’s continued payments (and threats of contempt when missed) waived abandonment because payments amounted to an acknowledgment interrupting the abandonment period. | Court held Simone's Rule was abandoned; Gordon's payments were conditional (pending trial) and did not interrupt abandonment. |
Key Cases Cited
- Hall v. Folger Coffee Co., 874 So.2d 90 (La. 2004) (standard for appellate review of factual findings).
- Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La. 1993) (deference to trial court credibility findings).
- Clark v. State Farm Mut. Auto. Ins. Co., 785 So.2d 779 (La. 2001) (unconditional tenders may constitute acknowledgment interrupting prescription/abandonment).
- Lima v. Schmidt, 595 So.2d 624 (La. 1992) (distinguishes acknowledgment from conditional payments, humanitarian gestures, and settlement offers).
- Heirs of Simoneaux v. B-P Amoco, 131 So.3d 1128 (La. App. 4th Cir. 2014) (elements and definition of a "step" to avoid abandonment).
- Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 79 So.3d 978 (La. 2011) (informal correspondence/efforts insufficient to interrupt abandonment).