Sequeira v. SequeiraSequeira v. Sequeira
- Reporters:
- ,
- Before:
- Marion F. Edwards
Defendant/appellant Louis Sequeira (“Louis“) appeals two judgments of the district court, one in the community property partition between himself and his former wife, appellee Donna Barbier Sequeira (“Donna“), and another denying his Motion To Reduce Child Support.
In August оf 2000, Donna filed a Petition for Divorce in St. Charles Parish, which pleading included a request for a partition of community property and for damages for fraud and/or bad faith in the management of the community property. In that pleading, Donna requested, among other things, custody of the three children of the marriage, interim spousal support, child support, use of the family home, and damages for fraud and bad faith. All rights for rent and/or reimbursement in connection with the family home were reserved.
On October 12, 2000, the parties reached a Consent Judgment that, in part, awarded joint custody pending a custody evaluation, granted use of the family home to Donna, and interim child support in the amount of $1650.00 per month plus interim spousal support of $450.00 per month, and granted injunctions enjoining the parties from alienating community property and from harassing оne another.
Ultimately, the parties were divorced and an order of permanent joint custody issued. In that judgment, Louis was ordered to pay $650.00 per month child support and to provide health insurance to the children. He was given the right to claim two of the children as dependents on his federal income tax return, and both parties were ordered to share equally in the extra expenses for the children. In Februаry 2002, child support was assessed at $759.78. Various rules and orders involving injunction violations, visitation, and other matters were heard over the next three years. Various incidental matters regarding the community property were also litigated, and the parties filed sworn detailed descriptive lists. In December 2002, Donna filed a Rule For Contempt and Motion To Set Community Property Issues For Traversals And For Trial.
The Motion for Traversal was tried on July 18, 2003, following which the court rendered judgment on the parties’ numerous claims. In December, 2003, a final judgment partitioning the community property was rendered. Louis’ Motion For New Trial was denied, and he has perfected the present appeal. In the meantime, Louis filed a Motion to Reduce Child Support, which matter was heard by
On appeal, Louis urges that the court erred by failing to classify certain debts incurred during the existence of the community as community debts, in failing to award him a credit for the fair rental value of the community home when occupied by Donna, in not allowing a credit for $6,000.00 that was divided between the parties, and in refusing to reduce child support despite evidence that his income had decreased.
Of the debts thаt Louis urges were community obligations, the first is for LASIK corrective surgery that Louis had two weeks prior to the termination of the community. The Consent Judgment rendered on October 12, 2000 specified that the community was terminated effective August 8, 2000, the date on which the petition for divorce was final. The court found that Louis did not prove, by a preponderance of evidence, that the charge to Brint Eye Associates (for thе eye surgery) was incurred to benefit or enhance the community.
Under
It is well settled that a trial court has broad discretion in adjudicating issues raised by divorсe and partition of the community regime. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses.3 A court of appeal may not set aside a trial court‘s finding of fact in absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fаct should not be disturbed upon review.4
At the hearing, Louis testified that he had considered having corrective surgery early in his marriage, but ultimately heard about LASIK about a year before the divorce. He visited the doctor and decided immediately to have the procedure. Louis stated that he wanted the surgery because when playing sports, his
Louis also testified that on July 24th, 2000, he sent flowers to Donna as an “act of compassion“, although he knew the marriage was “absolutely not” able to be saved and was over. Also on July 24th, Louis testified that he consulted an attorney with regard to the divorce and paid $3,795.00 in attorney fees at that time. The Discover Card statement admitted into evidence shows that the LASIK surgery was charged on July 25th, 2000, the following day. Under these circumstances, and considering the timing of this procedure, we find no error in the determination by the trial court that Louis failed to рrove that the cost of the surgery was incurred for the ordinary and customary expenses of the marriage, or for the common interest of both Sequeiras, so as to constitute a community debt.
Louis next claims as a community debt a cash advance of $2500.00 from the Discover Card taken by him on July 31, 2000. Testimony at the hearing established that Louis and Donna were already physically separated as of July 29th, and that Louis was residing аt his parents’ home. Donna testified that Louis had earlier torn up her credit cards on July 24th, and that except for $450.00, none of the charges on the August 2000 Discover bill admitted at trial was used for community purposes. She further testified that on July 29, 2000, Louis had left the home and “taken” the children, and she had to obtain an injunction to get them back, which she did on that same day. (This pleading does not appear in the record.) According to Donna, purchases made on or after July 29th were not community debts because Louis had already left the family home, destroyed her credit cards and had taken all the money, although the children had been returned to her. When questioned, Donna stated that she did not know what the $2500.00 cash advance was used for. She did not see the children with any new clothes or other new items at that time. There was no evidence at trial to indicate Louis’ use of those funds and Louis offered no explanation. The trial court found that Louis did not prove by a preponderance of the evidence that these funds were incurred to enhance the community. Given the nature of the claimed debt (an unexplained cash withdrawal), the status of the parties’ marriage, the fact that they were living separate and apart at the time of the cash advance, the fact that Louis was living in his parents’ home at that time, and his failure to account for the use of these funds, we find no error in the determination that Louis failed to prove that this debt was for the common interest of the spouses or Donna‘s benefit.
Louis claimed reimbursement for fees paid for services to a private investigator. According to Louis‘s statement submitted at trial, he paid the investigator $500.00 on July 24th; $1000.00 on July 25th; $3,500.00 on July 27th, and $7000.00 on July 29th, 2000. The court denied reimbursement, finding that “This Court‘s observation of investigative services is that this type of costs is a gamble at best. Mr. Sequeira gambled; he lost.”
Louis testified at trial that he hired the private investigator because he had great concern for his children. Donna‘s attorney objected to further testimony regarding the purpose of the investigation, and the trial court sustained the objection, finding
The expense of hiring a private detective in divorce proceedings is clearly not a community expense under
Louis attempted to designate the expense as one for the welfare of the children and thus a community expense, comparable to a mеdical bill maintained on their behalf. We disagree. Medical expenses and the like are obligations imposed on parents under
Louis next urges that the court erred in failing to award him a credit for the fair rental value of the community home during the time it was occupied by Donna. In denying the reimbursement, the court noted there was no motion filed seeking to have the fair rental value set until April 17, 2003, which was set to be heard on the same date as the transversal. Because the matter was not formally put at issue until after the home was sold, the court denied the motion.
A co-owner in exclusive possession may be liable for rent, but only beginning on the date another co-owner has demanded occupancy and has been refused.6 Rental payments may not be assessed retroactively unless otherwise agreed to by the spouses or ordered by the court in the exercise of its sound and vast discretion.7 There is no showing in the record that Louis demanded and was refused occupancy so as to entitle him to rent. Further, there is nothing in the record to indicate that Louis was prevented, at any time, by any agreement of the parties, from seeking to have a fair rental value set during the time that Donna occupied the residence. We find no abuse of discretion in the denial of reimbursement on this issue.
Louis next urges the court erred by granting Donna reimbursement for
Louis urges that at the time of the payment, Donna did not indicate that she would seek reimbursement, and that had he known she intended to seek reimbursement, he might not have agreed to pay the bill. The dubious logic of this argument notwithstanding, Louis’ separate liability, the total due on the Discover Card minus the sum that the court found to be community debt, was over $6000.00. Thе record discloses that the source of the entire $6000.00 payment made by Donna and Louis was from the liquidation of the community owned stock fund. Because it was used to pay a debt on the Discover account that was Louis‘s separate obligation, under
For these reasоns, the judgment regarding the community property partition is affirmed.
Louis also has appealed from a judgment denying his Rule to Reduce Child Support. In April 2002, the trial court rendered judgment ordering him to pay $759.78 per month for the support of the three minor children. In his rule, Louis averred that his income has significantly decreased from approximately $82,000.00 to $45,000.00 per year, and that Donna‘s income had increased. In denying the rule, the trial court found that Louis was voluntarily underemployed, and that he has consistently shown great earning potential, with salaries in the upper five figure range in past years. In his testimony, Louis stated that he had been down-sized from his prior job. The court found that Louis’ only efforts to secure a better job consisted of posting his resume on the internet and talking to a few friends, and that he was content with his present income.
To these findings, the сourt added its observation of Louis on the witness stand as arrogant and controlling, finding that Louis purposely failed to obtain better employment in order to antagonize Donna. The court averaged Louis’ income from 2002 with the income from his present job, and determined that the annualized figure approximated Louis’ income when the current child support was set. Because the court determined Louis has and would receive such income until January 2005, the rule was denied.
At the hearing, Louis testified that his current salary was $45,000.00 per year, and that he had no other form of income. His position with his former employer, AT & T, was basically discontinued. He had a severance package from AT & T that ended in October, 2003, and his only current source of income is his salary. He had
Louis’ bank statements showed numerous deposits not related to his salary. He was not sure of the source of these deposits, and they may have been loans from his brother, or from part of his severance package from AT & T. At one time, he had a “building loan” and he would sometimes pay bills from his checking account, and then depоsit money from the loan back into his account. No evidence of such loan was admitted at trial. Louis also gets expense checks of $400.00-$500.00 per month, which are essentially reimbursements, and which he cashes.
Donna testified that her annual income was $44,055.00 per year. Under the shared custody arrangement, the children live with each parent 50% of the time, and the expenses of child care, school uniforms, and karate classes are shared.
Under
In virtually every case where a parent‘s voluntary unemployment or underemployment was found to be in good faith, courts have recognized extenuating circumstances beyond that parent‘s control which influenced or necessitated the voluntary change in employment. A party is not deemed voluntarily unemployed or underemployed if he or she is absоlutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party. Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error.9
With regard to Louis’ income, it appeаrs clear that his salary from his new job is approximately $45,000.00 per year, slightly more than half his former wages. However, there are numerous deposits made in Louis’ checking accounts that are unexplained, and Louis’ attempted explanations on other deposits are unconvincing and equivocal, at best. Further, it is clear that Louis was complacent with his job situation, and appears to have made minimаl efforts to find more lucrative employment. The transcript discloses no error in the assessment by the trial court of Louis’
Under
In the present case, the wage earned prior to voluntary underemployment is the best estimate of earning potential. Here, Louis earned over $80,000.00 per year for years prior to his divorce. Using this wage, it is clear that Louis’ earning potential is the same as it was when the present child support amount was set, and that the trial court correctly denied Louis’ Motion to Reduce.
Further, in addition tо his present salary, Louis had additional unexplained sources of income, evidenced by the deposits into his checking account, for which he did not properly account. For these reasons also, we find that Louis failed to prove that he was entitled to a reduction in the amount of child support.
For the foregoing reasons, the judgment denying the reduction in child support is affirmed. Louis is assessed all costs of this appeal.
JUDGMENT OF PARTITION OF COMMUNITY PROPERTY AFFIRMED; JUDGMENT DENYING MOTION TO REDUCE CHILD SUPPORT AFFIRMED.