Shelly Bernstein v. Kenneth D. Bernstein
313 So.3d 413
La. Ct. App.2021Background
- Shelly and Kenneth Bernstein married in 1999 and had three children; they separated in 2016 after Shelly discovered Kenneth's prescription drug abuse.
- An October 2017 interim consent judgment required Kenneth to pay $3,000/month child support, maintain insurance, pay certain expenses and the mortgage (with right to reimbursement); no spousal support was ordered then.
- Kenneth repeatedly delayed discovery and changed counsel; the court found him in contempt, awarded Shelly attorney fees and costs, and limited Kenneth's ability to introduce evidence of his expenses at trial as a sanction.
- A bench trial on child support and interim spousal support occurred in April and June 2019 with competing financial experts; the court excluded Kenneth’s expense evidence for late disclosures.
- On September 9, 2019 the trial court ordered Kenneth to pay $4,082/month child support, $4,000/month interim spousal support (extended beyond 180 days for good cause), and $200/month toward arrears; both parties appealed.
Issues
| Issue | Plaintiff's Argument (Shelly) | Defendant's Argument (Kenneth) | Held |
|---|---|---|---|
| Calculation of Kenneth’s income for child support | Court should include Tire Town salary, Delta World Tire cash distributions and direct IRS payments as income, yielding much higher monthly income | Direct payments to IRS and retained corporate earnings are not actually received by Kenneth and therefore should not be treated as his available income | Court affirmed use of taxable income (approx. $28,292/mo) and declined to treat direct corporate tax payments/distributions as income because funds were not actually received and treating them as income would be inequitable |
| Add-on expenses (extracurricular, medical, tuition) | Trial court stated in reasons it would apportion add-on expenses; judgment failed to order pro rata allocation | No specific defense on omission beyond record showing tuition paid by Kenneth’s family business | Judgment controls over reasons; court’s refusal to add expenses was discretionary and not an abuse of discretion given the record (tuition covered by family business) |
| Extension of interim spousal support and credit for overpayments | Extension was proper for good cause; credit for payments exceeding final award is equitable | Extension was improper because Shelly did not expressly request extension before/post-trial; also court failed to set end date | Court affirmed extension for good cause (delays, nonpayment, Shelly’s demonstrated need); held request was adequately raised and set end date implicitly (terminates when final spousal support is determined); credit for any interim overpayments affirmed as equitable |
| Order to pay $200/month toward arrears | $200/month is too low given purported six-figure arrearage and will take too long to satisfy | $200/month is within court’s discretion given Kenneth’s overall obligations and record of income | Court affirmed $200/month payment toward arrears; appellant failed to show abuse of discretion because total arrearage had not been calculated and Kenneth already ordered to pay substantial monthly support |
Key Cases Cited
- State, Dept. of Soc. Servs. ex rel. D.F. v. L.T., 934 So.2d 687 (La. 2006) (structure and limited discretion of child support guidelines; manifest-error standard)
- Dejoie v. Guidry, 71 So.3d 1111 (La. App. 4 Cir. 2011) (gross income includes income from any source and in-kind payments)
- Roan v. Roan, 870 So.2d 626 (La. App. 2 Cir. 2004) (definition and proof of "good cause" to extend interim spousal support)
- Hight v. Hight, 234 So.3d 1143 (La. App. 4 Cir. 2017) (interim spousal support factors: need, ability to pay, preserve marital standard of living)
- Dufresne v. Dufresne, 65 So.3d 749 (La. App. 5 Cir. 2011) (mandatory procedure for deviation from child support guidelines)
- Molony v. Harris, 51 So.3d 752 (La. App. 4 Cir. 2010) (abuse-of-discretion review for interim spousal support)