55 So. 3d 953
La. Ct. App.2011Background
- 1998 divorce; consent judgment requires Poore to pay Nina Williams $1,500 monthly permanent spousal support and includes a confidentiality provision.
- From 1998–2009 Poore faithfully paid support; Williams never remarried and had limited earnings.
- Final spousal support was challenged when Poore filed to modify the amount; Williams filed a contempt motion for arrears.
- November 2009–April 2010: Poore loses job (Carlson Wagonlit Travel) and later earns $60,000 yearly at Travelcorp; debts largely tied to supporting their adult son.
- Trial court found material change in circumstances and reduced spousal support to $700 per month; Williams’ contempt for past due support was deemed executory in part.
- Appellate court affirmed modification of alimony and the contempt ruling, applying Article 114 and Article 112 factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a consent alimony award be modified? | Williams argues consent language precludes modification. | Poore contends lack of explicit non-modification language allows modification. | Modification permitted in absence of explicit non-mod language. |
| Was there a material change in circumstances justifying modification? | Williams contends no substantial change; Poore points to job loss and finances. | Poore shows reduced income and increased expenses due to supporting son. | Yes, Poore proved a material change in circumstances. |
| Did the court properly consider Williams’ needs and ability to work? | Williams argues need exceeds $700 and she cannot work. | Poore contends Williams can work and assets indicate higher needs can be met otherwise. | Court properly imputed income and limited need to $700/month. |
| Were assets and non-disability evidence properly evaluated in imputing income? | Williams emphasizes substantial assets and disability evidence. | Poore maintains assets and lack of certified disability support imputation. | Assets considered; uncertified disability evidence excluded; imputed income appropriate. |
Key Cases Cited
- Aufrichtig v. Aufrichtig, 796 So.2d 57 (La.App. 2 Cir. 2001) (non-modification language required to prevent modification)
- Ray v. Ray, 960 So.2d 174 (La.App. 1 Cir. 2007) (absence of explicit non-modification language allows modification)
- Williams v. Williams, 803 So.2d 50 (La.App. 4 Cir. 2001) (burden to prove disability; if none, impute income and consider Article 112 factors)
- Mizell v. Mizell, 920 So.2d 927 (La.App. 2 Cir. 2006) (change in circumstances does not automatically modify support; shifts burden)
- Green v. Green, 432 So.2d 959 (La.App. 4th Cir. 1983) (financial support of a major child is not a living expense for alimony purposes)