922 So.2d 694 (La.App. 3 Cir. 2006), 05-889, McCorvey v. McCorvey

Docket Nº05-889.
Citation922 So.2d 694, 2005-889 La.App. 3 Cir. 2/1/06
Party NameShaunn Caillier McCORVEY v. Derriel Carlton McCORVEY.
Case DateFebruary 01, 2006
CourtCourt of Appeals of Louisiana

Page 694

922 So.2d 694 (La.App. 3 Cir. 2006)

2005-889 La.App. 3 Cir. 2/1/06

Shaunn Caillier McCORVEY

v.

Derriel Carlton McCORVEY.

No. 05-889.

Court of Appeals of Louisiana, Third Circuit

February 1, 2006

APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT, PARISH OF ST. LANDRY, NO. 02-C-2619-A HONORABLE AARON FRANK MCGEE, DISTRICT JUDGE

Page 695

Alex L. Andrus, III, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, LLP., Opelousas, LA, for Plaintiff/Appellee, Shaunn Caillier McCorvey.

Glenn James Labbe, Lafayette, LA, for Defendant/Appellant, Derriel Carlton McCorvey.

Derriel Carlton McCorvey, Lafayette, LA, Pro Se.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.

ULYSSES GENE THIBODEAUX, CHIEF JUDGE

In this seemingly endless, fractious and contentious domestic dispute, Defendant, Derriel McCorvey, appeals from the trial court's judgment on the partition of the community property, the child support award, contempt and sanction issues, and cost assessment. For the reasons set forth below, we affirm in part, reverse in part, and modify and amend in part the judgment of the trial court. Additionally, Plaintiff, Shaunn Caillier McCorvey, now Harden ("Harden"), seeks sanctions by this court against McCorvey regarding his appellate brief. We decline to impose sanctions at this time as set forth fully below.

I.

ISSUES

The issues to be determined are:

1) whether the trial court erred in sanctioning Derriel C. McCorvey;

2) whether the trial court erred in determining the monthly child support obligation;

3) whether the trial court erred in assessing the child support delinquency;

4) whether the trial court erred in ordering Derriel C. McCorvey to pay 62.5% of uncovered medical expenses for the minor child;

5) whether the trial court erred in denying Derriel C. McCorvey's motion to decrease child support;

6) whether the trial court erred in partitioning the community property of the parties;

7) whether the trial court erred in assessing 90% of the court costs to Derriel C. McCorvey; and,

8) whether Plaintiff's motion for sanctions and the return of Defendant's appellant brief should be granted by this court.

II.

FACTS

Harden and McCorvey were married in December 1993. Of the marriage, one daughter was born in 2001. Both parties are practicing attorneys. Harden is an assistant district attorney in St. Landry Parish and has a few private clients in that parish. McCorvey is the sole proprietor of a law practice in Lafayette.

On June 24,2002, Harden filed suit for divorce from McCorvey on the grounds of adultery. Numerous child custody and community property issues have been litigated and appealed. Our court has become quite familiar with the parties, the voluminous records, and the divisive issues which appear to be driven more by emotion and ego than by complexity.

In August 2002, an intake conference was held before a hearing officer in an attempt to evaluate the financial records of the parties, establish income, and determine child support issues. McCorvey initially withheld documents, resulting in two income determinations of his income by the hearing officer, one for $6,500.00 per month, and one for $23,000.00 per month.

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On November 8, 2002, the presiding judge at that time, Judge James Genovese, ordered McCorvey to pay $673.00 per month in child support, retroactive to the date of judicial demand, June 24, 2002.

The divorce judgment was issued on November 21, 2002. McCorvey and Harden reserved the rights to other relief on incidental demand such as partition and support. The matters currently before us are the partition of community property and the child support issues. There is no issue of immovable real property before us.

In November 2004, the hearing on child support and partition of the community property was held before Judge Aaron McGee over several days. He issued a judgment on the issues on January 25, 2005, modifying the child support award and apportioning community assets and liabilities. It is from this judgment that McCorvey appeals. As set forth in the analysis below, the judgment appealed from is affirmed in part, reversed in part, modified and amended in part.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993); Rosell v. ESCO, 549 So.2d 840 (La. 1989). A two tiered test must be applied in order to reverse the findings of the trial court:

1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and

2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Additionally, a reviewing court must keep in mind that if a trial court's findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is "convinced that had it been sitting as the trier of fact, it would have weighed that evidence differently." Housely v. Cerise, 579 So.2d 973, 976 (La. 1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

On legal issues, an appellate court gives no special weight to the findings of the trial court. Instead, we review the decision or judgment to determine if it is legally correct or incorrect. Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118.

Sanctions For Contempt Against Derriel C. McCorvey

On September 8,2004, the trial court ordered the parties to submit their work-in-progress as of the date of filing for divorce on June 24, 2002. The court allowed seventy-two hours to file objections to the procedure, and the work was made due on October 18, 2004. No objections were filed, but McCorvey failed to submit any work. Harden submitted her work-in-progress and requested sanctions against McCorvey in November 2004. In the current judgment, McCorvey was found in contempt of court for failure to submit any

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files or summaries. In its Reasons for Judgment, the trial court stated:

One of the issues submitted to the Court involved discovery and ... "Motions to Compel" filed by each party relating to evidence associated with the issues of partition of community and . . .child support.... it was obvious to the Court that additional information needed to be exchanged by the parties related to their "work in progress files." . . . the Court directed the attorneys to prepare a worksheet containing . . . information which would comply with the discovery motion, as well as assist the Court in valuing the "work in progress" of each of the party litigants.... also directed the attorneys to make available to the Court the actual files . . . source documents necessary to test the credibility of the information.... The plaintiff, Shaunn Caillier McCorvey Harden, complied with the Court's directive, but the defendant saw fit to ignore the Court's Order and go on an elk hunt instead. The defendant's excuse was that the elk hunt had been preplanned. The Court noted that there was no attempt by the defendant to ask for additional time and, in effect, it is obvious to the Court that the defendant made no effort whatsoever to even attempt to comply with the Court's order.

The trial court was impressed by the fact that McCorvey had made no effort at partial compliance, no attempt to report on a portion of the files or even a single file. In its Reasons for Judgment, the trial court further explained the necessity of appointing a very capable and seasoned attorney to do the work that McCorvey failed to do, to review and summarize McCorvey's work-in-progress. The court ordered McCorvey to deposit $5,000.00 into the registry of the court for the appointed attorney and to submit the files for review. McCorvey finally submitted his files, and on the last day allowed by the court, he deposited his check for $5,000.00. The check was returned as insufficient. The court immediately instructed the appointed attorney to stop reviewing McCorvey's files.

The trial court noted McCorvey's consistent contempt of court orders including his previous violation of Judge Genovese's order by injecting racism into his child's life, and the violation of a restraining order by taking undisclosed, unilateral action regarding community assets with a potential value of over $600,000.00 in disputed attorney fees. The trial court then noted its discretion in imposing sanctions for violation of discovery orders and referred to the factors cited in the case of Hutchinson v. Westport Ins. Corp., 04-1592 (La. 11/08/04), 886 So.2d 438, where the suit of a pro se plaintiff was dismissed for violating discovery orders.

The supreme court in Hutchinson reinstated the dismissal of the trial court. It noted that the violation was solely the fault of the plaintiff who was impatient, unrealistic in her expectations of damages and of her several attorneys, and who insisted upon representing herself against the court's warnings. Four factors were examined in affirming the trial court's dismissal for the discovery violation: "(1) whether the...

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