Bernstein v. Bernstein
| Decision Date | 10 February 2021 |
| Docket Number | NO. 2019-CA-1106,2019-CA-1106 |
| Citation | 313 So.3d 413 |
| Parties | Shelly BERNSTEIN v. Kenneth D. BERNSTEIN |
| Court | Court of Appeal of Louisiana — District of US |
Marc D. Winsberg, Jonathan D. Gamble, WINSBERG & ARNOLD, LLC, 650 Poydras Street, Suite 2050, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
Andrew T. Lilly, Lilly PLLC, 4907 Magazine Street, New Orleans, LA 70115, Jeffrey Walter Bennett, 9515 Jefferson Highway, River Ridge, LA 70123, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
This is a child support and interim spousal support case. Both parties appeal the trial court's September 9, 2019 judgment, which ordered Appellee/Cross-Appellant Kenneth D. Bernstein ("Mr. Bernstein") to pay Appellant/Cross-Appellee Shelly Bernstein ("Mrs. Bernstein") $4,082.00 per month in child support; $4,000.00 per month in interim spousal support; an additional $200.00 per month toward arrearages; and which extended the interim spousal support award for good cause beyond 180 days after the judgment of divorce. For the reasons that follow, we affirm.
Mr. and Mrs. Bernstein were married in New Orleans on December 17, 1999. Of this marriage, three children were born. The parties physically separated on April 1, 2016, after Mrs. Bernstein discovered Mr. Bernstein was abusing prescription drugs. On September 21, 2016, Mrs. Bernstein was awarded exclusive use and occupancy of the parties’ former marital home in New Orleans. The parties were also granted joint custody of the parties’ three minor children on an interim basis, pending the completion of a custody evaluation.
On February 6, 2017, Mrs. Bernstein filed a Petition for Divorce Pursuant to La. C.C. art. 102. In her petition, she requested to be granted continued use and occupancy of the former marital home, child support, and interim spousal support. Mr. Bernstein filed an Answer and Reconventional Demand on May 9, 2017, seeking a divorce pursuant to La. C.C. art. 103(1). Mrs. Bernstein filed an Answer on June 16, 2017. Trial on Mrs. Bernstein's Rules for Child Support and Interim Spousal Support was originally set for July 27, 2017.
The record shows that Mr. Bernstein moved to continue the July 27, 2017 trial. The trial court granted the continuance, and the trial was reset for September 7, 2017. On September 6, 2017, the day before trial was set to commence, the trial court again granted Mr. Bernstein a continuance of the trial, and scheduled the trial on Mrs. Bernstein's Rules for Child Support and Interim Spousal Support for January 23, 2018.
The parties were divorced on September 7, 2017. That same day, the parties entered into an Interim Consent Judgment, which was signed by the trial court on October 26, 2017. The Interim Consent Judgment required Mr. Bernstein, on an interim basis, to: (1) pay $3,000.00 per month directly to Mrs. Bernstein as child support; (2) maintain the children's health insurance; (3) pay the "meet fees" associated with the children's gymnastics activities; (4) pay the cell phone bill for Mrs. Bernstein and the minor children; and (5) pay the mortgage, taxes, and insurance on the former family home, subject to his right to claim reimbursement. Mr. Bernstein was not required to pay any uncovered medical or extracurricular expenses for the children. The Interim Consent Judgment further granted visitation to Mr. Bernstein with the parties’ two younger children, and Mr. Bernstein was ordered to commence reconciliation therapy with the parties’ oldest child. Mr. Bernstein was not ordered to pay any spousal support.
Thereafter, on January 12, 2018, Mrs. Bernstein filed a Motion for Advance of Community Funds, requesting that the court award her an advance of her share of community funds, specifically a portion of the parties’ $59,909.00 federal and state tax refunds from the 2016 tax year. In her motion, Mrs. Bernstein noted her concern that her Rules for Child Support and Interim Spousal Support, scheduled for January 23, 2018, would be continued yet again because Mr. Bernstein had not produced the necessary documents to determine his income through discovery.
On January 22, 2018, after Mr. Bernstein's counsel suffered a serious injury which prevented him from representing Mr. Bernstein in trial, the trial court granted another continuance in favor of Mr. Bernstein, and continued the January 23, 2018 trial of Mrs. Bernstein's Rules for Child Support and Interim Spousal Support. On January 31, 2018, Mrs. Bernstein requested her motion for advance on community funds be reset on an expedited basis. She alleged that she desperately needed the advance of community funds to maintain the household for her and the children. Eventually, on February 6, 2018, the trial court reset all other matters previously scheduled for January 23, 2018—including Mrs. Bernstein's Rules for Child Support and Interim Spousal Support and her motion for advance of community funs—to July 23, 2018.
The July 23, 2018 trial was reset at Mrs. Bernstein's request due to the unavailability of her financial expert, and was again reset due to her counsel's unavailability to August 29, 2018.
On April 3, 2018, Mrs. Bernstein filed a Rule for Contempt and for Attorney's Fees and Court Costs (the "First Rule for Contempt"), requesting that the trial court hold Mr. Bernstein in contempt of court for failing to pay the mortgage on the former family home as ordered pursuant to the Interim Consent Judgment. This resulted in the parties entering into another consent judgment to put the former marital home up for sale.
On August 27, 2018, two days before the scheduled trial, Mr. Bernstein abruptly discharged his second attorney in this matter. Mr. Bernstein then appeared before the court and orally requested a continuance of the issues set for trial. Over Mrs. Bernstein's objection, the court granted Mr. Bernstein's oral motion for a continuance and ordered that all matters pending between the parties be continued without date. The court further scheduled a status conference for September 13, 2018, during which time Mr. Bernstein's new counsel and counsel for Mrs. Bernstein would select a new trial date. Finally, the court ordered that pending the new trial date and in light of Mr. Bernstein's representation that he would fail a drug test, Mr. Bernstein's physical custody time with the parties’ minor children was to be supervised. Thereafter, the trial court reset trial on Mrs. Bernstein's Rules for Child Support and Interim Spousal Support and the parties’ competing Rules for Custody on April 12, 2019.
On December 13, 2018, Mrs. Bernstein filed a motion to compel discovery. Counsel for the parties appeared before the trial court for hearing on the motion on February 6, 2019. Mrs. Bernstein alleged that Mr. Bernstein's responses to discovery requests were originally due on July 12, 2018. After being granted several extensions to respond to discovery requests, however, Mr. Bernstein had still not produced discovery as of December 7, 2018. At the hearing on February 6, 2019, the parties agreed—and the trial court ordered—that Mr. Bernstein would produce his discovery responses no later than February 20, 2019. On February 28, 2019, when Mr. Bernstein still had not provided his discovery responses as ordered, Mrs. Bernstein filed a motion for relief pursuant to La. C.C.P. art. 1471,1 asking the trial court to hold Mr. Bernstein in contempt of court and to disallow any evidence of his expenses or opposition to Mrs. Bernstein's calculation of his income at trial. After a hearing, the trial court held Mr. Bernstein in contempt of court, ordered him to pay attorney's fees and court costs, and ruled that Mr. Bernstein would only be allowed to present evidence of his income and expenses "at the court's discretion" at the trial of the support issues, pursuant to La. C.C.P. art. 1471. The trial court also granted Mr. Bernstein's April 4, 2019 Motion to Continue regarding the parties’ competing rules for child custody but ordered Mr. Bernstein to reimburse Mrs. Bernstein for the cost paid to the custody evaluator for her court appearance in the amount of $2,000.00. Additionally, the trial court ordered Mr. Bernstein to pay Mrs. Bernstein attorney's fees in the amount of $1,599.00 and court costs in the amount of $72.00, for a total of $3,671.00. As of June 12, 2019, Mr. Bernstein had not paid the ordered amount, and Mrs. Bernstein filed a second rule for contempt of court.
The bench trial on Mrs. Bernstein's Rules for Child Support and Interim Spousal Support commenced on April 12, 2019. On April 12, 2019, the trial court heard testimony from Mrs. Bernstein and her financial expert, Jeffrey E. Meyers, CVA, MAFF, CFE. Trial was recessed and resumed on June 24, 2019, wherein the trial court heard additional testimony from Mr. Meyers based on documentation that Mr. Bernstein provided after the first day of trial and from Mr. Bernstein's financial expert, Jon Folse, CPA. The trial court also heard testimony from Mr. Bernstein's brother, Paul Bernstein, and Mr. Bernstein himself. The record reflects that, on June 23, 2019, the night before trial was to resume on June 24, 2019, Mr. Bernstein forwarded additional discovery materials to counsel for Mrs. Bernstein at 10:55 p.m., which included a statement of Mr. Bernstein's income and expenses. The trial court disallowed any evidence of Mr. Bernstein's expenses to be admitted at trial, as sanction for his late discovery responses.
After trial, the parties submitted post-trial memoranda. On September 9, 2019, the trial court rendered judgment on Mrs. Bernstein's Rules for Child Support and Interim Spousal Support. The trial court ordered Mr. Bernstein to pay $4,082.00 per month in child support dating back to the date of demand, with arrears to be calculated by the parties by taking in consideration past support payments made by Mr. Bernstein. The trial court...
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