Gibbs v. Gibbs

• Decision Date: 21 June 2000
• Docket Number: No. 33,169-CA.,33,169-CA.
• Citation: 764 So.2d 261
• Parties: Pamela Thomas GIBBS, Plaintiff-Appellee, v. Thomas Liner GIBBS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

764 So.2d 261

Pamela Thomas GIBBS, Plaintiff-Appellee, v. Thomas Liner GIBBS, Defendant-Appellant.

No. 33,169-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 2000.

Samuel P. Love, Jr., Shreveport, Counsel for Defendant-Appellant.

Stephen L. Harrison, Monroe, Counsel for Horizons Bank.

Jill B. Goudeau, West Monroe, Counsel for Plaintiff-Appellee.

Before GASKINS, CARAWAY and DREW, JJ.

DREW, J.

Thomas Gibbs appeals a judgment sustaining a no cause of action exception to his petition to terminate permanent alimony based upon the alleged fault of his spouse. He also appeals another judgment denying his claim to terminate alimony based upon his allegations that his wife is no longer in need and he is unable to pay alimony.

We affirm the judgments.

FACTS

Pamela Gibbs filed a petition for a La. C.C. art. 102 divorce from Thomas Gibbs on January 4, 1996. By judgment on rule based upon a joint stipulation, Mrs. Gibbs was designated domiciliary parent of their minor child, Larkin Gibbs. Mr. Gibbs was ordered to pay $600 per month in child support and alimony pendente lite of $1,500 per month. On May 22, 1996, Mr. Gibbs filed an answer and reconventional demand in which he sought a divorce under La. C.C. art. 103 on the ground of having lived separate and apart for six months. Mr. Gibbs also alleged in his reconventional demand that Mrs. Gibbs was guilty of fault precluding her from receiving permanent alimony.

On November 21, 1996, both parties appeared in court to make stipulations on the record. Among the stipulations were that Mrs. Gibbs was to receive $500 per month in permanent alimony and $600 per month in child support. On May 16, 1997, Mrs. Gibbs filed a rule to show cause why the Art. 102 divorce should not be granted. Four days later, the court rendered judgment in accordance with the stipulations made by the parties in November. Judgment of divorce was rendered on June 10, 1997. Two days later, the parties entered into a consent judgment relating to the division of the community property. A community property settlement was adopted, attached to the judgment and made part of the record.

JOn October 30, 1997, Mr. Gibbs filed a rule for a decrease in child support and termination or reduction of alimony due to a change in circumstances. A hearing on this rule was held on April 16, 1998. The trial court denied the rule on May 1, 1998. Mr. Gibbs' motion for new trial was also denied.

On September 29, 1998, Mr. Gibbs filed a petition and rule to show cause alleging that permanent alimony should be terminated because Mrs. Gibbs had never been found free from fault, and that she was guilty of fault in the dissolution of the marriage. Mrs. Gibbs filed the peremptory exception of no cause of action, in which she asserted that Mr. Gibbs waived any right to litigate the issue of fault when he stipulated to permanent alimony.

Mr. Gibbs amended his petition and rule in January 1999 to additionally allege that permanent alimony should be terminated because Mrs. Gibbs is no longer in need of alimony and that he is not financially able to continue paying alimony.

Mr. Gibbs again amended his rule on February 4, 1999, to allege that alimony should be terminated or reduced due to a change in circumstances, namely that Mrs. Gibbs' income had increased and that he had no income since he was unemployed. Mr. Gibbs further alleged that Mrs. Gibbs was no longer in need of alimony.

At a hearing on the issue of fault held on January 20, 1999, the trial court rendered judgment granting Mrs. Gibbs' exception of no cause of action. The pending rule to terminate permanent alimony based upon the financial circumstances of the parties was continued.

Trial was held on the issue of alleged change of circumstances in March 1999. In its written ruling, the trial court found that Mrs. Gibbs was still in need of permanent alimony, but reduced the monthly alimony obligation from $500 to $375 because Mr. Gibbs' ability to pay had diminished somewhat. A judgment reducing alimony but denying the rule to terminate alimony was rendered on March 23, 1999.

Mr. Gibbs appeals the judgments rendered on January 20, 1999 and March 23, 1999.

DISCUSSION

Fault Precluding Alimony

Mr. Gibbs contends in his first assignment of error that the trial court erred in sustaining Mrs. Gibbs' exception of no cause of action to his petition alleging that Mrs. Gibbs was not free from fault. Mr. Gibbs argues that throughout his pleadings, and particularly in his answer and reconventional demand filed on May 22, 1996, he reserved the right to litigate the issue of fault. Mr. Gibbs' reconventional demand stated, in relevant part:

[Mrs. Gibbs] is guilty of pre-separation fault so as to bar her from receiving permanent alimony, and although she is gainfully employed, this pre-separation fault should be determined prior to rendition of a divorce in this matter.

Alternatively, and if the divorce is granted immediately, that the determination of fault be referred to the trial of the partition of community or other trial of the incidental issues.

Plaintiff in Reconvention will request the granting of an immediate divorce under the provisions of law providing that upon the expiration of the mandatory time period the court shall grant the divorce expeditely [sic] reserving to trial other incidental issues that cannot be resolved.

* * * *

Plaintiff in Reconvention further alleges that the alimony obligation should be redetermined in the event [Mrs. Gibbs] is not found to be at fault; accordingly, it is requested that the court redetermine the alimony obligations after the divorce judgment is rendered as provided by law in that a new standard is applicable.

Plaintiff in Reconvention reserves all rights concerning a division of the community and any other incidental issues not asserted in this reconventional demand to be raised by amendment of the pleadings, stipulation, or pre-trial order.

On November 21, 1996, six months after the filing of the reconventional demand, the parties appeared in court with their attorneys. Mr. Gibbs' counsel told the court that by entering stipulations, they were "actually going to be resolving all remaining issues, property and everything... ." Mrs. Gibbs' attorney then added that the parties agreed that Mrs. Gibbs was entitled to $500 per month in permanent alimony. Mr. Gibbs' counsel next stated that "[t]his is going to resolve every issue that the parties would currently have with each other or against each other." The trial judge then asked both parties if they understood that "this is the law between you now" and that they couldn't change their minds after leaving the courtroom. Both answered affirmatively.

It is clear from reading the transcript of the November 21, 1996 hearing that the stipulations resolved all remaining issues the parties had raised. Mr. Gibbs had raised the issue of fault as a bar to permanent alimony in his reconventional demand filed six months prior to the stipulation to permanent alimony. Thus, the issue of Mrs. Gibbs' fault was a "remaining" issue at the time of the stipulations, which according to Mr. Gibbs' counsel, was resolved by the stipulations.

Mr. Gibbs also deems it significant that the judgment of divorce stated, in part, that "the right of each party is reserved to bring other actions for settlement of the claims of the spouses arising from the matrimonial regime." Our emphasis. We note that this judgment of divorce further stated that "the provisions of that Judgment on Rule filed on the 20th day of May, 1997, in this proceeding relating to child support and alimony are incorporated herein by reference." Our emphasis. The May 20, 1997 judgment, rendered in accordance with the November 1996 stipulations, declared that Mrs. Gibbs was entitled to receive permanent alimony of $500 per month. Thus, the divorce judgment referred to reservation of actions other than those to determine entitlement to alimony.

Boswell v. Boswell, 501 So.2d 972 (La.App. 2d Cir.1987), is applicable to the facts of this case. In a 1983 divorce judgment, Mrs. Boswell was awarded $650 per month in alimony pursuant to an agreement between the parties. Mr. Boswell filed a rule two years later to terminate alimony, partly on the ground that Mrs. Boswell had never been adjudged to be free from fault. Considering Mr. Boswell's rule an attempt to "collaterally attack" the judgment awarding permanent alimony, the court stated:

This court has already held that when a husband consents to a judgment granting his divorced spouse permanent alimony, or does not appeal from such a judgment, he may not in a subsequent proceeding to terminate or reduce alimony raise the issue of the wife's nonentitlement to alimony by reason of her fault.

Id., 501 So.2d at 974.

Mr. Gibbs is likewise attempting to collaterally attack the judgment awarding alimony which he had previously agreed to pay. This assignment of error is without merit.

Termination of Alimony

In its written ruling relating to the issues of terminating or reducing alimony, the trial court stated, in part:

Subsequent to the original alimony award, the financial position of Mrs. Gibbs has remained essentially unchanged, although some additional income is now derived through second and third jobs, and a modification of the loan on her rent house. The need recognized in the original judgment still exists.

Mr. Gibbs' ability to pay alimony has diminished somewhat since 1996. He has skills in commercial photography and as a petroleum land man. Both of these occupations have provided him with substantial incomes in the past and commercial photography offers this potential for the immediate future.

The Court finds that some, but not all, of Mr. Gibbs' reduced ability to pay alimony is because of his own actions and evasions However, upon considering all factors, the Court finds that a 25% reduction in Mr. Gibbs' alimony obligation is warranted....

Not satisfied...