Nelson v. Nelson

• Decision Date: 19 June 2008
• Docket Number: No. 08-CA-85.,08-CA-85.
• Parties: Susan Eby NELSON v. Robert Allan NELSON.
• Court: Court of Appeal of Louisiana — District of US

985 So.2d 1285

Susan Eby NELSON v. Robert Allan NELSON.

No. 08-CA-85.

Court of Appeal of Louisiana, Fifth Circuit.

June 19, 2008.

Rehearing Denied July 14, 2008.

Sally D. Fleming, Owen M. Courreges, Muriel Van Horn, Attorneys at Law, New Orleans, LA, Gerard P. Archer, Attorney at Law, Metairie, LA, Alexander Peragine, Attorney at Law, Covington, LA, for plaintiff/appellant.

Laura J. Todaro, Neil D.W. Montgomery, Attorneys at Law, Kenner, LA, for Defendant/Appellee.

Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.

FREDERICKA HOMBERG WICKER, Judge.

Appellant, Susan Eby Nelson, appeals from the district court's interpretation of a Consent Judgment concerning child support. The district court held that the lump-sum portion of Ms. Nelson's child support was to be paid retrospectively. Ms. Nelson contends that the payments were meant to be paid prospectively. Appellee, Robert Allen Nelson, answered and contends that the course of dealings between the parties supports the district court's interpretation. For the reasons that follow we affirm the judgment of the trial court.

Background:

Robert Nelson and Susan Eby Nelson were judicially divorced on March 11, 2003. On February 26, 2004, to resolve issues of child and spousal support, the parties signed a Consent Judgment relating to support. The relevant section of the judgment reads as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Robert Allan Nelson will pay child support to Susan Nelson in the amount of Two Thousand ($2,000) per month.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that after April 15, 2004, Robert Nelson will pay an additional Seven Hundred Twenty-Five Dollars ($725.00) per month to Susan Nelson. That payment will be made in one lump sum on August 1 of each year.

On October 6, 2004, the parties executed an Amended Consent Judgment, which left Mr. Nelson's relevant child support obligations unchanged. The dispute which is the subject of this appeal is the $725.00 per month child support payment due in one lump sum on August 1st of each year. The reason given for this additional payment was that after April 15th, 2004 Ms. Nelson assumed the duties formerly undertaken by an au pair. Mr. Nelson has interpreted this lump-sum obligation as requiring him to make a retrospective payment. Ms. Nelson believes this payment should be paid prospectively. Consistent with his interpretation, Mr. Nelson transferred his first support payment of $1,875.00 to Ms. Nelson four days late on August 5, 2004, and made another payment of $662.50 on August 11, 2004. Mr. Nelson intended these payments to cover his interpreted lump sum obligation for the period from April 15, 2004 through July 31, 2004. Mr. Nelson claims he discussed this with his attorney, and she assured him the payments were intended to be paid retrospectively. Ms. Nelson claims she did not object in 2004 to Mr. Nelson's payment schedule because her attorney advised her to wait to object until the community property had been partitioned.

Mr. Nelson continued to pay his lump-sum payments retrospectively in 2005 and 2006. On August 29, 2005, Hurricane Katrina struck New Orleans and destroyed Ms. Nelson's home. Ms. Nelson relocated to Florida. According to Ms. Nelson, it was because of these events, that it was not until August of 2006 that Ms. Nelson hired new counsel and began to renew proceedings against Mr. Nelson.

On February 27, 2007, Ms. Nelson filed her Rule and Incorporated Memorandum to Make Past-Due Child Support Executory and for Attorney's Fees. Ms. Nelson alleges that Mr. Nelson has been consistently one year behind in his lump sum child support payments since the signing of the Consent Judgment, rendering him $8,700.00 in arrears before adding judicial interest. On April 30, 2007, Domestic Hearing Officer Karl Hansen conducted a hearing officer conference concerning the $8,700.00 arrearage issue in conformity with the 24th Judicial District Court Domestic Rules. Thereafter, Hearing Officer Hansen issued recommendations in favor of Ms. Nelson's prospective interpretation of the Consent Judgment:

H.O. recommends that child support payments should be made prospectively and the father shall pay a total of $8,700 in 3 small installments on May 15th June 15th, and July 15th, 2007. Thereafter, the $8,700 to be paid prospectively by operation of law. Recommends no contempt atty's or costs of interest pending payment scheduled outline.

On May 3, 2007, Mr. Nelson formally objected to H.O. Hansen's recommendation regarding the $8,700.00 lump sum child support payment, arguing that the recommendation was not in accordance with the intent of the parties. On May 29, 2007 this objection was heard before the Hon. Kernan A. Hand. Testimony was taken from both Mr. and Ms. Nelson. Mr. Nelson thereafter submitted his Amended Post-Hearing Memorandum in Support of Robert Nelson's Objections to the Hearing Officer's Recommendations in which he argues that the payments were retrospective by virtue of a "course of dealings" that had developed between the parties.

On July 30, 2007, Judge Hand issued his Judgment and Reasons for Judgment. His order upheld Mr. Nelson's objections to H.O. Hansen's recommendation with respect to the lump-sum obligation. In pertinent part, the Judge ruled as follows:

The Court now turns to the issue of defendant's objection to the hearing officer's ruling that he is $8,700 in child support arrears and that he should pay this amount to his former wife in three installments. Again, we are dealing with a consent judgment (contract) between the parties. In this particular, the Court feels that the contract language (of the February 26, 2004 consent judgment) is unclear; therefore, we must look to the course of dealing between the parties to determine their intent. La.C.C. Art.2053.

The testimony of the parties in court establishes that, following the reduction of the original agreement to writing on February 26, 2004, and despite the fact that Mr. Nelson did not make a prospective $8,700 payment to Mrs. Nelson on August 1, 2004 (he did make a retrospective payment of $725.99 per month for the months of April 15, 2004 to August 1, 2004) she did not raise the issue at the time of an Amended Consent Judgment Relating to Support on October 6, 2004; nor did she raise the issue at any other time during the intervening years between 2004 and 2006. The Court feels that the evidence supports the conclusion that the intent of the parties at the time of the confection of the contract was not to make the $8,700.00 payment prospective. Therefore, the court upholds defendant's objections to the hearing officer's ruling and finds that the defendant does not owe $8,700 in arrears to plaintiff.

From this judgment, Ms. Nelson filed the instant appeal.

Assignments of Error:

Appellant presents three assignments of error:

1. Whether there was sufficient evidence, as a matter of law, for the Judgment insofar as it relied on the proposition that Susan Eby Nelson "did not raise the issue [of whether the contractual lump-sum child support was payable retrospectively] at the time of the Amended Consent Judgment Relating to Support on October 6, 2004; nor did she raise the issue at any other time during the intervening years between 2004 and 2006".

2. Whether, alternatively, the judgment was manifestly erroneous insofar as it interpreted the lump-sum payment as being payable retrospectively based upon the evidence asserted therein.

3. Whether the judgment committed legal error in finding it permissible to interpret contractual lump-sum child support as being payable retrospectively, for support obligations already accrued.

Assignments of error one and two:

Appellant first argues that, assuming the language of the consent judgment is ambiguous, the trial court erred in finding that retrospective payment of the annual support was the intent of the parties, as evidenced by their course of conduct. The appellant argues here that the court erred particularly in this regard by focusing on two pieces of evidence: (1) Ms. Nelson's alleged failure to raise the issue of the lump-sum obligation following Mr. Nelson's tender of the initial retrospective payments prior to the signing of the Amended Consent Judgment; and (2) Ms. Nelson's failure to raise the issue of deficient payments at any time between October 2004 and 2006. Appellant argues that this was not valid evidence of Ms. Nelson's intentions and, therefore, Judge Hand's ruling should be overturned because it is based on insufficient evidence.

As to the standard of review, Appellant argues that "Sufficiency of the evidence is a question of law, not one of fact" necessitating de novo review. Appellant cites for this proposition Hall v. Folger Coffee Company, 03-1734 (La.4/14/04), 874 So.2d 90, 106. The standard of review as enunciated in that case by Chief Justice Calogero, writing for the majority at page 98 is, however, the manifest error standard:

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a district court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass'n, 2002-2660, p. 9, (La.6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Id. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. Id. at 9-10, 851 So.2d at 1023.

At page 99 of the Hall case Justice Calogero discusses the dissenting position:

We are aware of the position of the dissenting justices that a "sufficiency of the evidence" challenge involves a legal question to which the de novo standard of review should be applied. It should be noted...