Khaled v. Khaled

• Decision Date: 29 November 1982
• Docket Number: No. 15073-CA,15073-CA
• Citation: 424 So.2d 370
• Parties: Taufiq A. KHALED, Plaintiff-Appellant, v. Virginia Morphis Evans KHALED, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 370

424 So.2d 370

Taufiq A. KHALED, Plaintiff-Appellant, v. Virginia Morphis Evans KHALED, Defendant-Appellee.

No. 15073-CA.

Court of Appeal of Louisiana Second Circuit.

Nov. 29, 1982.

Law Offices--Pat Wright by Patrick H. Wright, Jr., Monroe, for plaintiff-appellant.

Jones, Jones & Jones Law Offices by Benjamin Jones, Monroe, for defendant-appellee.

Before HALL, JASPER E. JONES and NORRIS, JJ.

JASPER E. JONES, Judge.

Taufiq A. Khaled appeals adverse judgments in the ancillary proceedings to his action for a separation from bed and board. We affirm.

Appellant sets out seven assignments of error. He contends that the trial judge erred in:

1) failing to dissolve a temporary restraining order which did not comply with C.C.P. arts. 3605 and 3610;

2) failing to dissolve a temporary restraining order which went beyond the scope of R.S. 9:306;

3) failing to dissolve a temporary restraining order which infringed on his constitutional freedoms of speech and travel;

4) failing to award damages for the wrongful issuance of a temporary restraining order;

5) failing to award him alimony pendente lite;

6) failing to award him the exclusive use and occupancy of the family home; and 7) failing to sustain his exception of no cause of action to his wife's rule for exclusive use and occupancy of the family home.

Appellant brought this action seeking a separation from his wife, Virginia, and recognition of his interest in the house that had served as the family residence. Virginia answered and reconvened for a separation, alimony and exclusive use of the family home. She also obtained a temporary restraining order which prohibited appellant from coming near her or communicating with her except through her attorney and further prohibited him from alienating or adversely affecting any property in which she had an interest.

Taufiq responded with a motion to dissolve the temporary restraining order and request for damages. Subsequently he commenced a rule for alimony pendente lite and exclusive use and occupancy of the family home.

Appellant's motion to dissolve and request for damages was tried along with appellee's rule for a preliminary injunction on March 29, 1982. The district judge granted a preliminary injunction against appellant prohibiting him from abusing, calling or contacting appellee and continuing in effect the provisions of the temporary restraining order relating to property until April 6, 1982. Appellant's request for damages was denied.

On April 15, 1982, a hearing was held on the appellant's rule for alimony and exclusive use of the family home and appellee's rule for exclusive use of the family home. Judgments were rendered denying appellant's demands and awarding exclusive use and occupancy of the family home to appellee. Mr. Khaled then appealed.

Appellant's first three assignments of error all relate to the district judge's failure to dissolve the temporary restraining order. Assuming arguendo that we may consider such assignments, see LSA-C.C.P. art. 3612, we decline to rule on them as they are moot.

An issue is moot when the judgment or decree sought can have no practical effect and courts do not rule on such questions. Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405 (La.1980); Jones v. Natchitoches Parish Police Jury, 371 So.2d 1243 (La.App.3d Cir.1979).

Here the requested relief is the dissolution of the temporary restraining order. However, the temporary restraining order expired months ago and was replaced by a preliminary injunction. Thus, even were we to conclude that our brother below erred in refusing to dissolve the temporary restraining order our judgment could grant appellant no remedy as we cannot dissolve a temporary restraining order that has already expired.

Through his fourth assignment of error appellant attacks the trial judge's failure to award damages and attorney's fees for the wrongful issuance of the temporary restraining order. ¹ The district judge's written reasons for judgment show that though he found the temporary restraining order to have been wrongfully issued because of appellee's failure to provide security, he denied damages because of appellant's failure to prove damages.

The plaintiff bears the burden of proving each and every element of damages claimed. Cheramie v. Jones, 327 So.2d 601 (La.App. 4th Cir.1976).

The award of damages and attorney's fees for the wrongful issuance of a temporary restraining order is within the discretion of the trial judge. Amacker v. Amacker, 146 So.2d 672 (La.App. 1st Cir.1962); Muller v. Buckley, 143 So.2d 231 (La.App. 4th Cir.1962). Attorney's fees for the dissolution of a temporary restraining order need not be allowed where there is no proof of damages. Robinson v. Jackson, 255 So.2d 846 (La.App. 2d Cir.1971), writ denied, 260 La. 700, 257 So.2d 155 (1972).

Appellate courts may not disturb the trial judge's reasonable evaluations of credibility. Pierre v. Landry, 341 So.2d 891 (La.1977).

Appellant is an itinerant jewelry salesman. He testified that the temporary restraining order upset him and made him unable to work because he was afraid to leave home. The trial judge's reasons show he was unimpressed by appellant's testimony.

We also are unmoved by appellant's incredible testimony. As there is no other evidence which supports the alleged damages we discern no error by the trial judge in rejecting appellant's demands for damages.

As to appellant's demand for attorney's fees we again note that no damages were proved. We also note appellee obtained a preliminary injunction prohibiting essentially the same acts prohibited by the temporary restraining order.

Finally, we note that the work of appellant's counsel on the motion to dissolve was also necessary to his opposition to the rule for the preliminary injunction. Under these circumstances the district judge was within his discretion in denying attorney's fees.

We now turn to appellant's fifth assignment of error through which he challenges the trial judge's refusal to award alimony pendente lite.

The amount of alimony pendente lite is left largely within the sound discretion of the trial judge and will not be disturbed on appeal unless that discretion has been abused. Frederick v. Frederick, 379 So.2d 808 (La.App. 4th Cir.1980); Gray v. Champagne, 367 So.2d 1309 (La.App. 4th Cir.1979); Liles v. Liles, 369 So.2d 479 (La.App. 4th Cir.1979). The need for alimony must be proved and the award should be for an amount which is fair to each party. Levine v. Levine, 373 So.2d 1380 (La.App. 4th Cir.1979); Gaspard v. Gaspard, 401 So.2d 624 (La.App. 3d Cir.1981); Liles v. Liles, supra.

Mrs. Khaled is a state employee with a net income of approximately $1,100.00 per month. She filed a statement of expenses which exceeds her monthly income.

During 1981 Mr. Khaled earned approximately $833.00 per month on sales of approximately $2,500.00 per month. He testified that his income during 1982 was only about $300.00 per month. This was disputed by Mrs. Khaled who testified that appellant frequently claimed to earn $2,000.00 in a weekend of selling jewelry.

Appellant's testimony as to his 1981 income was supported by tax records. However, his testimony of his greatly reduced 1982 income was totally unsupported by documentation. Further, it was disputed by appellee's testimony.

The trial judge is not required to accept a party's unsupported estimate of income. Gray v. Champagne. Here appellant's estimate of his 1982 income is vague and unsupported.

Appellant attempts to obtain alimony by proving his wife's income and then relying on his own unsupported assertions of a lesser income. This is not adequate proof of appellant's need for alimony and his demands were properly rejected by the trial judge.

Further, the evidence shows that both parties...