Shirley v. Shirley
127 So. 3d 935
La. Ct. App.2013Background
- John and Monica Shirley were in a covenant marriage (1997) with two minor children; Monica filed for separation (2008) and incidental relief; parties reconciled in 2009 but later resumed litigation.
- John filed a reconventional demand for divorce (adultery) in June 2010 and later orally amended to seek divorce based on two years’ separation; divorce was granted January 31, 2012.
- Trial addressed custody, child support, interim and final periodic spousal support; trial court awarded joint custody, designated Monica domiciliary parent, ordered a JCIP to be submitted within 30 days but did not allocate physical custody time.
- Court ordered interim spousal support retroactive to Sept. 7, 2010 ($8,600/month total retroactive award $75,600), and final periodic support $2,200/month for three years starting July 1, 2012.
- Court set child support using Worksheet A ($2,799/month gross; $2,257.44 after school credit) and a large retroactive arrearage, but did not account for specific physical custody allocation.
- John appealed, challenging domiciliary designation, physical custody allocation (seeking shared custody), child support computation, and spousal support and fault determinations.
Issues
| Issue | Plaintiff's Argument (John) | Defendant's Argument (Monica) | Held |
|---|---|---|---|
| Domiciliary parent designation / physical custody allocation | Trial court erred naming Monica domiciliary and failed to award sufficient physical custody to John; seeks shared custody allocation | Trial court properly designated domiciliary parent and ordered JCIP for implementation | Judgment incomplete as to custody: remanded because JCIP did not allocate physical custody time; appeal dismissed in part for custody/support until finalized |
| Child support calculation under joint/shared custody statutes | Child support award improper without final allocation; requests recalculation reflecting shared custody | Child support based on Worksheet A and trial court’s income finding; supports current award | Remanded to finalize physical custody allocation and reconsider child support (time allocation required under La. R.S. 9:315.8/9:335) |
| Trial court’s income finding for spousal support | Court abused discretion in using ~$203,000 annual income (averaging 2010 and 2011) and deviating from accountant’s estimate | Trial court’s determination reasonable based on prior years’ community income, spending habits, and assets | Affirmed: use of ~$200,000 not an abuse of discretion; interim and final support awards upheld |
| Denial of final periodic support based on post‑filing fault | Monica’s admitted post‑reconciliation sexual relationship (Aug 2010) bars final support | Monica was free from fault prior to the proceeding to terminate the marriage; John’s divorce filing (June 2010) started the terminal proceeding | Held for Monica: Article 111 bars treating post‑filing conduct (after John’s June 2010 divorce filing) as fault that would bar final support; spousal support award affirmed |
Key Cases Cited
- Jones v. Jones, 877 So.2d 1061 (La. App. 2d Cir.) (defers to trial court discretion on interim spousal support)
- Bagwell v. Bagwell, 812 So.2d 854 (La. App. 2d Cir.) (standard for reviewing interim support)
- McDermott v. McDermott, 741 So.2d 186 (La. App. 2d Cir.) (trial court discretion in support awards)
- Gremillion v. Gremillion, 900 So.2d 262 (La. App. 2d Cir.) (factors and deference in spousal support determinations)
- Allen v. Allen, 648 So.2d 359 (La.) (legal fault must be proximate cause of breakup to bar support)
- Hamsa v. Hamsa, 668 So.2d 1209 (La. App. 5th Cir.) (pre‑reconciliation fault cannot bar final support)