90 So. 3d 1077
La. Ct. App.2012Background
- Rosenfeld and spouse married in 1998, one child Emma; consent judgment in 2009 awarded permanent spousal support to Mrs. Rosenfeld.
- In 2010, motion to decrease support due to payor's reduced income and a visitation order were heard; spousal support terms remained unsettled regarding modification.
- Mrs. Rosenfeld remarried in October 2010; she filed a motion to determine if the spousal support was contractual and not subject to modification.
- Mr. Rosenfeld filed a Rule to Terminate Permanent Spousal Support arguing remarriage extinguishes obligation under La. C.C. art. 115; trial court agreed.
- The trial court held that La. C.C. art. 115 extinguishes the obligation upon remarriage of the obligee and affirmed termination of support.
- Mrs. Rosenfeld appealed; the appellate court determined article 115 applies and affirmed the trial court's ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does remarriage extinguish spousal support under art. 115? | Rosenfeld argues contract should not be modified; remarriage should not alter terms. | Rosenfeld argues art. 115 automatically ends obligation upon remarriage. | Art. 115 extinguishes obligation upon remarriage; affirmed termination. |
| Was the July 28, 2009 consent judgment modifiable or waiving statutory rights to modification? | Rosenfeld contends consent judgment is a binding contract not subject to modification. | Rosenfeld asserts consent judgment silent on modification, thus subject to modification under jurisprudence. | Consent judgment silent on modification is subject to modification; no waiver of 115 rights found. |
| Does Hamsa create an exception to modification for lump-sum-style consent judgments? | Rosenfeld cites Hamsa to support non-application of 115 where past obligations exist. | Rosenfeld argues Hamsa should apply to bar modification. | Hamsa exception not applicable; no significant past-due lump-sum obligation here. |
Key Cases Cited
- Hamsa v. Hamsa, 919 So.2d 776 (La. App. 5 Cir. 2005) (lump-sum past obligations exception to 115 modification not present)
- Ducote v. Ducote, 339 So.2d 835 (La. 1976) (consent judgments generally modifiable or terminable by change in circumstance)
- Bernhardt v. Bernhardt, 283 So.2d 226 (La. 1973) (consent judgments subject to modification absent waiver)
- Twichell v. Twichell, 772 So.2d 956 (La. App. 5 Cir. 2000) (non-modification clauses enforceable to restrict modification)
- Ellefson v. Ellefson, 616 So.2d 221 (La. App. 5 Cir. 1993) (non-modification provisions enforceable)
- Megison v. Megison, 642 So.2d 885 (La. App. 5 Cir. 1994) (consent judgments and modification rights discussed)
- Williams v. Poore, 55 So.3d 953 (La. App. 4 Cir. 2011) (modification considerations in spousal support cases)