Zatzkis v. Zatzkis

• Decision Date: 16 December 1993
• Docket Number: Nos. 91-CA-1623,92-CA-0717 and 92-CA-2637,92-CA-0633,s. 91-CA-1623
• Citation: 632 So.2d 307
• Parties: Sherril Herman, Wife of Ralph ZATZKIS v. Ralph ZATZKIS.
• Court: Court of Appeal of Louisiana — District of US

Page 307

632 So.2d 307

Sherril Herman, Wife of Ralph ZATZKIS v. Ralph ZATZKIS.

Nos. 91-CA-1623, 92-CA-0633, 92-CA-0717 and 92-CA-2637.

Court of Appeal of Louisiana,

Fourth Circuit.

Dec. 16, 1993.

Rehearing Denied March 17, 1994.

Lanny R. Zatzkis, Karen D. McCarthy, Deborah M. Sulzer, Zatzkis & Associates, New Orleans, for appellant.

Walter C. Thompson, Jr., Barkley & Thompson, New Orleans, Avram C. Herman, Arthur A. Steiner, Metairie, and Warren A. Goldstein, New Orleans, for appellee.

Before BARRY, BYRNES and LOBRANO, JJ.

BYRNES, Judge.

Ralph Zatzkis appeals judgments for alimony pendente lite, child support, permanent alimony, sanctions for contempt, interim housing allowances, and visitation, as well as a judgment finding that his petition for nullity had prescribed. Sherril Herman Zatzkis answers the appeals, asking for increases in alimony and child support, as well as compensation for the dependency tax exemption awarded to Ralph, and additional costs and attorney's fees.

Ralph Zatzkis and Sherril Herman Zatzkis were married on December 22, 1977 and had one daughter, Michele Elaine Zatzkis, who was eight years old as noted in the judgment granting the divorce in July 1992. Prior to the judgment of separation dated January 26, 1990, the parties entered into a consent judgment in November 1989. The former spouses had joint custody of the child with the mother being the custodial parent, living in the family home located at 3312 Octavia Street. In the consent judgment Ralph agreed to pay Sherril "$2,800 per month as alimony pendente lite." ¹

In January 1990 Sherril filed a rule for contempt and sanctions, claiming that Ralph had violated the terms of the consent judgment by withdrawing community funds to pay for Michele's educational expenses and for his own personal use and benefit. By judgment of May 2, 1990, the trial court found Ralph in contempt for using community funds and ordered Ralph to return various amounts to the community accounts and to pay $500 in attorney's fees. The court noted that Ralph was to account for certain funds when the community was partitioned. Ralph filed a suspensive appeal of this contempt judgment.

Sherril filed a rule for the court to fix permanent alimony and child support, and Ralph filed a rule requesting use and occupancy of the family home. ² Several months after the hearings, Judge Giarrusso entered a judgment in November 1990, awarding child support in the amount of $1,450 per month retroactive to the date of the filing of the rule as well as additional child support expenses along with post-divorce alimony. ³ Although the parties were to file for a divorce on the same day, the petition for divorce was not made.

In the reasons for judgment Judge Giarrusso stated that Sherril "is emotionally unfit to work in the legal profession in any capacity" but is capable of employment as an elementary school teacher. The trial court allowed three years for Sherril to acquire additional education for her teaching certification before the monthly post-divorce alimony was reduced from $1,500 to $1,000. The trial court based its award of child support and post-divorce alimony on Ralph's annual income of $160,000. Although the judgment itself designated the basic monthly child support figure as $1,450, the trial court allocated $1,500 for the basic monthly child support award in the reasons for judgment.

Ralph paid $2,800 designated as monthly alimony pendente lite as well as mortgage payments set forth in the original consent judgment through January 1992 but did not pay the child support.

Ralph appealed the November 1990 judgment and applied for writs in this court and the Louisiana Supreme Court, which granted relief in part on January 18, 1991, 573 So.2d 1115, based on the finding that because there was no judgment of divorce, the post-divorce alimony award was premature and was set aside. The case was remanded for permanent alimony to be determined at the time of divorce. Sherril filed an answer to the appeal of the November 1990 judgment.

Ralph continued to pay $2,800 monthly through January 1992. In July 1991 Sherril filed a rule for contempt to enforce the November 1990 judgment for the basic child support award of $1,450 ($1,500) per month. On August 21, 1991, Ralph filed a petition for nullity of the consent judgment, claiming that Sherril and her counsel procured that judgment through fraud and ill-practice. In response, Sherril filed exceptions of prescription, peremption and failure to state a cause of action. After a hearing the trial court on November 26, 1991 maintained Sherril's exceptions of prescription and no cause of action and dismissed Ralph's petition for nullity but denied sanctions. Ralph appealed.

Judge Giarrusso recused herself from the proceedings relating to the partition of community property, which were conducted by Judge Okla Jones. In November 1991 the parties entered into a settlement agreement for the partition of the community which was read into the record. After the partition was concluded, pursuant to a provision of the partition for immediate determination of the post-partition housing allowance pending divorce, Sherril filed a rule for Judge Giarrusso to fix the interim housing allowance. Ralph contended that Judge Giarrusso transferred from the domestic relations section and no longer had jurisdiction over the case. In a judgment of February 10, 1992 and an amended judgment of February 27, 1992, Judge Giarrusso ruled that she retained authority to review the issue and fixed the interim housing allowance at $1,177.20 monthly for a period of three months. Ralph appealed.

Ralph applied for supervisory writs which were denied by this court; however, the Louisiana Supreme Court reversed this court's ruling and held that the entire case had been transferred to Judge Jones on February 14, 1992 in Zatzkis v. Zatzkis, 592 So.2d 1309 (La.1992). The Supreme Court stated that its ruling was not based on lack of jurisdiction but in the interest of judicial efficiency to have the entire case heard by one judge, Judge Jones. Zatzkis v. Zatzkis, 594 So.2d 877 (La.1992).

In February 1992 Ralph began paying $1,450 and related child support expenses set forth in the November 1990 judgment, as well as the three month interim housing allowance but did not pay the $2,800 designated as monthly alimony pendente lite in the consent judgment. Ralph stated that he would deposit the remaining sums in the court registry but the funds were not deposited.

On March 25, 1992 Judge Giarrusso filed supplemental reasons for the November 1990 Judgment, confirming that she did not intend to address or terminate the monthly $2,800 alimony pendente lite designated under the 1989 consent judgment.

After hearings Judge Jones rendered a judgment dated July 14, 1992. ⁴ By amended judgment of August 12, 1992 Judge Jones denied motions for a new trial and clarified the prior July 1992 judgment, including the determination that Ralph's net bonus equaled the gross bonus minus any mandatory deductions defined as federal withholding tax, state income tax, FICA and any interest required by law.

Ralph filed writs in this court and the Supreme Court when the payments for arrearages and sanctions were due in August 1992. After this court denied Ralph's writ application on August 6, 1992, the Supreme Court granted the application and ordered the July 1992 judgment stayed as it made the past due payments executory and held Ralph in contempt. The Supreme Court remanded the case to this court, noting that Ralph could not be held in contempt prior to a determination of the correct amounts due. Zatzkis v. Zatzkis, 602 So.2d 12, clarified, 605 So.2d 1069 (La.1992). On September 18, 1992 this court ruled that the amounts of past due alimony and child support in the Judge Jones' July 14, 1992 judgment were correct and that the $2,800 monthly alimony pendente lite under the consent judgment beginning in February 1990 remained in effect after Judge Giarrusso's November 1990 judgment. This court held that a suspensive appeal may not be taken from an arrearage support judgment and remanded the case to the trial court. After being denied further applications to the Supreme Court, Ralph paid arrearages and sanctions under the July 14, 1992 judgment. Judge Jones granted Sherril's request for additional attorney's fees of $12,000. Ralph appealed and Sherril answered the appeal seeking an increase in the amount of attorney's fees and costs (designated as appeal number 93-CA-0447).

On August 18, 1992, Ralph appealed the July 1992 judgment but later attempted to amend his motion for appeal to exclude an appeal on the divorce issue which suspended the judgment of divorce, leaving Ralph liable to pay alimony pendente lite. This court denied Ralph's motion to dismiss the appeal of the divorce judgment. Judge Jones denied Sherril's rule to recover past due payments of alimony pendente lite which Ralph claimed were not due after the July 1992 judgment. Sherril filed an appeal (designated as appeal number 93-CA-0366).

In a judgment dated November 9, 1992, Judge Jones awarded $8,700 in sanctions for Ralph's attempt to use a back-dated fee agreement between Ralph and his present attorneys for documentation of his expenses. Ralph also appealed that judgment (designated as appeal number 93-CA-0447).

Ralph entered four appeals which are consolidated as follows:

No. 91-CA-1623 Review of Judge Giarrusso's November 1990 judgment with respect to the November 1989 consent judgment;

No. 92-CA-0633 Review of Judge Giarrusso's November 1991 judgment dismissing Ralph's petition for nullity of the consent judgment based on prescription and no cause of action;

No. 92-CA-0717 Review of Judge Giarrusso's February 1992 judgment awarding three months interim housing allowance to Sherril after the partition of community property; and

No. 92-CA-2637 Review of Judge Jones' July 1992 judgment.

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